The Unraveling of the Alabama Death Penalty:
Alabama’s Capital Sentencing Statute, Part 3 in a Series
“A Jefferson County judge Thursday morning ruled that Alabama’s capital murder sentencing scheme, which allows judges to override jury recommendations of life without parole and instead impose the death penalty, is unconstitutional.” AL.com, Mar 3, 2016
The Deep South has a nickname in America’s legal community: the Death Belt.
Alabama, in particular, is known for:
- executing more people per capita than any other state;
- having the lowest quality criminal defense system in the U.S., according to the ABA;
- being the last state in the country to let a judge change a jury sentence recommendation from life imprisonment to death
SCOTUS ruled on January12 in Hurst v. Florida that the Florida’s death penalty procedures were unconstitutional according to the Sixth Amendment, which guarantees a defendant a trial by jury. A major factor in the court’s decision was the issue of judicial override.
A jury, the Court said, must find each fact necessary to impose a death sentence – not a judge. Governor Rick Scott signed into law a new statute that does not allow a judge to overrule the jury’s recommendation of life in prison; the judge can, however, overrule a death recommendation to life in prison.
So how does the former Florida statute, struck down by SCOTUS, compare to the one now in use by Alabama?
In 1995, SCOTUS included the following statement in the majority opinion of Harris v. Alabama:
“[The Alabama Criminal Court of Appeals] noted that Alabama’s death penalty statute is based on Florida’s sentencing scheme, which we have held to be constitutional ….”
Hurst v. Florida put to rest that reasoning. Following the SCOTUS opinion in January, Alabama Circuit Court Judge Tracie Todd struck down the state’s death penalty as a possible sentence in four upcoming capital murder cases. State Attorney General Luther Strange is pursuing the case through appellate courts where, most recently, the Alabama Circuit Court of Appeals overturned Judge Todd’s decision. The appeals court ruled that Alabama’s death penalty was, indeed, constitutional and ordered that capital punishment should be allowed for consideration as a sentence during the defendants’ trials.
The Alabama Attorney General’s office says the crucial point is this: Florida’s former statute allowed a judge to find aggravating factors in a case to allow capital punishment. Alabama’s statute requires the jury to find at least one such aggravating factor in a capital case, even if the jury rejects the death penalty as a sentence.
Critics rebut this assertion by saying that judicial override is just that: overriding a jury of a defendant’s peers to impose a greater punishment than the jury itself deemed justified.
In the meantime, the Alabama Circuit Court of Criminal Appeals reversal is being appealed by defense attorneys to the Alabama Supreme Court.
Legal experts agree that for SCOTUS to return three cases in five weeks for Alabama appellate court reconsideration is a strong sign that they are uncomfortable with current Alabama law. But the state legislature has failed to address the issue of judicial override in capital punishment and, regardless of Hurst v Florida, it is doubtful they will act without direct SCOTUS intervention.
An Alabama native proved to be an unlikely advocate for review of his state’s laws on capital punishment.
For over 45 years, Major Watt Espy, Jr., of Headland, Alabama, researched and tracked every execution that had been carried out in the United States since 1608 through his death in 2009.
In a New York Times article, he was referred to as “America’s foremost death penalty historian.”
When he began his research, at home in Headland, in the early 70s, Mr. Espy was in favor of the death penalty. Years later, as he saw the descendants of men and women who had been executed commit the same crimes, not to mention the people that have been set free by The Innocence Project, he changed his mind.
“It’s terrifying to consider that society generally has no greater sense of humanity than its basest citizens -the murderers,’” he said. Espy died at age 76 on August 13, 2009.
As of the date of the NY Times article, October 21, 1987, 1,901 people were waiting on death row, and at the rate of one execution a day, it would take six years to carry out the sentences, he said.
“It’s crazy,” he said at the time, “and if any other country did that, we’d call it a human rights violation.”