No More ‘Playing God’: AL Blocks Judges in Applying Death Penalty

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Yellow Mama, originally colored with highway-stripe paint, was used for executions in Alabama from 1927 until 2002. Photo by Devlin Lucinda via Flickr


Unfortunately, Walter McMillian was not alive this week to witness hell freezing over in the Alabama State House in Montgomery.

Following the state Senate’s lead, the House of Representatives on Tuesday voted 78-19 to take away a judge’s longstanding option to reject a jury’s sentence and unilaterally impose a death sentence in capital cases.

Gov. Robert Bentley said he is “looking forward to signing this bill.”

Alabama is the last state to allow what is known as the “judicial override.” Ironically, the idea was conceived during the nation’s capital punishment hiatus in the 1970s as a check against the overuse of “wantonly and freakishly imposed” death penalties by juries.

Alabama judges dashed enthusiastically in the opposite direction, dismissing jury recommendations (generally for life in prison) to impose death sentences about 100 times since the practice was sanctioned in 1981.

Eleven of those men have been executed, most recently Ronald Smith last December 8.

McMillian might have joined that list.

Thirty years ago, he was framed for the 1986 murder of a teenage clerk in Monroeville, hometown of Harper Lee, author of “To Kill a Mockingbird.”

The sole evidence against the poor black man came from a sketchy snitch facing unrelated murder charges of his own. The jury convicted McMillian but implied doubt about his guilt by recommending a life sentence.

Judge Robert E. Lee Key rejected that and condemned McMillian to die in the lap of Yellow Mama, the state’s electric chair.

Bryan Stevenson. Photo by Steve Jurvetson via Flickr

After six years on Death Row, McMillian was exonerated through the legal advocacy of attorney Bryan Stevenson, executive director of the Montgomery-based Equal Justice Initiative (EJI).

“This was not a hard case to figure out,” Stevenson told me a few years ago for a story about wrongful convictions. “It was clear from almost day one when I looked into this that Walter had nothing to do with this crime.”

Freed in 1993, McMillian returned to the Monroeville area, where he died in 2013.

The case inspired Stevenson to advocate against judicial overrides, and the EJI’s withering 2011 report on the subject drew national attention, including a story in The New Yorker headlined, In Alabama, Judges Play God.

The EJI research also caught the ear of the nation’s judiciary elite.

Supreme Court Justice Sonia Sotomayor called out the practice in her 2013 dissenting opinion in Mario Dion Woodward v. Alabama:

What could explain Alabama judges’ distinctive proclivity for imposing death sentences in cases where a jury has already rejected that penalty? There is no evidence that criminal activity is more heinous in Alabama than in other states, or that Alabama juries are particularly lenient in weighing aggravating and mitigating circumstances. The only answer that is supported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the criminal justice system: Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.

Sotomayor noted that re-election campaign ads for some Alabama judges have included a rogues’ gallery of the killers they had sentenced to death.

For example, EJI cited the death-penalty electioneering of Claud Neilson, a circuit judge from Demopolis appointed by Gov. George Wallace in 1974. During his unsuccessful 1994 campaign for the state supreme court, Neilson boasted he “had looked into the eyes of murderers and sentenced them to death.”

In an interview with a TV reporter, Neilson once explained his transcendental methods of detecting truth.

“Well, I’ve been a judge for 35 years, and I have watched people testify in court, and I just had the feeling on some of them,” Neilson said. “It’s just something that if you’ve done it for as long as I have, you kinda size up people and kinda have a gut feeling that maybe they may not be telling the truth.”

U.S. Attorney General Jeff Sessions has a long association with judicial overrides, dating to his years as Alabama’s attorney general in the mid-1990s.

In that job, he was tasked with defending legal challenges of death sentences. Eleven of the 40-plus capital cases he oversaw were the result of judicial overrides.

In addition, Sessions was a close friend of Braxton Kittrell, a judge in his home county of Mobile who rejected life sentences and imposed the death penalty five times, second most among all Alabama judges. Kittrell, known as Max Brax, lobbied for Sessions in Washington during his failed nomination for a federal judgeship in 1986.

Given Sessions’ kinship with Kittrell and his official advocacy for judicial overrides as Alabama’s attorney general, it might seem contradictory that he later emerged as the U.S. Senate’s loudest foghorn against “activist” judges. During Sotomayor’s 2009 confirmation hearings, Sessions declared he would oppose any judge who would “allow their own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.”

EJI’s Stevenson has long argued that precisely these sorts of prejudices tainted the Alabama override process, rendering a judge’s unilateral decision “unreliable, unpredictable, and arbitrary.”

EJI tweeted that Alabama’s legislative action this week, which removed life-or-death veto powers from judges like Neilson and Kittrell, was “huge news.”

The proposed change is “a step in the right direction,” said Ebony Howard, associate legal director of the Southern Poverty Law Center, also based in Montgomery.

“Alabama is now one step closer to joining every other state in our nation by prohibiting judicial override in the sentencing phase of death penalty cases.”

Alabama legislators were feeling self-congratulatory about their votes.

“It was a bad practice,” Sen. Dick Brewbaker, a Montgomery Republican who sponsored the legislation, told The Montgomery Advertiser’s Brian Lyman. “It showed a lack of confidence in Alabama juries, and I just think we came to the same conclusion of 49 other states. It just took longer.”

Why did it take longer?

State Sen. Hank Sanders, a Harvard-educated African American from Selma who has represented Alabama’s 23rd legislative district since 1983, has introduced the same legislation annually for years running.

But he’s a Democrat, and the state’s Republican supermajority wasn’t interested.

This year, for opaque reasons perhaps related to future vote-trading, Brewbaker was willing to partner with another African-American Democrat, Rep. Chris England of Tuscaloosa. Their bills glided on greased skids through both the House and Senate.

“I think what changed is that we were the last state to do so,” England told the Alabama press. “For a change, we jumped in front of something and fixed it.”

More typically, as Craig Ford, a Gadsden Democrat, wrote last year, Alabama politicians end up “wasting taxpayer dollars on expensive, unwinnable lawsuits defending unconstitutional legislation.”

When Florida lost a court appeal last year to preserve its rarely used judicial override law, Alabama was left isolated, and a legal challenge seemed inevitable.

The new law would take effect immediately but would not be retroactive.

Still, there may be a death penalty lawsuit ahead for the Yellowhammer State.

Last month, Florida Gov. Rick Scott signed legislation requiring juries to agree unanimously on the imposition of a death penalty.

That leaves Alabama as the only state where just 10 of 12 jurors must agree on a death sentence. England’s bill would have required unanimity, but the provision was pulled at the 11th hour under pressure from Republicans.

The Democrat seemed bemused by an obvious contradiction that apparently was lost on his colleagues.

David Krajicek

“I always ask myself that question: Why would it take a unanimous jury to convict, but less than a unanimous jury to send someone to death?” England told reporters. “But the legislative process is the art of compromise. The overall objective is to end judicial override and make us like the rest of the country, and hopefully we’ve accomplished that today.”

David J. Krajicek (@djkrajicek), a contributing editor for The Crime Report, writes frequently about criminal justice issues in Alabama. He welcomes reader comments.

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