Criminal Law Practitioner Blog

Judicial override is a concept that has been in place since the late 1970s. It’s a permissive doctrine that gives state trial judges the option to override a jury’s sentencing determination and institute a sentence the judge believes is more suitable. In Alabama, judicial override has been used frequently to override jury verdicts of life without parole for the death penalty. The Supreme Court will soon decide whether to grant certiorari on the question of whether Alabama’s use of the judicial override option violates a defendant’s Sixth Amendment right to a jury as well as the Eighth Amendment’s prohibitions on arbitrary and capricious death sentences and cruel and unusual punishment.

The petitions entitled Lockhart v. Alabama and Scott v. Alabama allege that judicial override in Alabama is more a political tool that flies in the face of a defendant’s constitutional rights. In Lockhart, the defendant was convicted of murdering a woman during the course of an armed robbery and received a unanimous jury verdict of life without parole—implicitly rejecting the death penalty as an appropriate sentence. In Scott, while the jury was not unanimous, a majority still found the death penalty an inappropriate sentence and handed down a life sentence. However, both trial judges overrode those verdicts and sentenced both Mr. Lockhart and Ms. Scott to death.

Trial judges in Alabama are elected. A study conducted by the Equal Justice Initiative (EJI)—who is representing both Mr. Lockhart and Ms. Scott—found that judicial overrides in favor of the death penalty occur far more often during election years than non-election ones. In 2008, 30 percent of all those sitting on death row were there by way of judicial override whereas only 7 percent of death row inmates in 1997 (a non-election year) were placed there due to override.

EJI is asking the court to decide whether the use of judicial override in Alabama is done in an arbitrary manner in violation of the Eighth Amendment. This is not the first time a death row inmate has asked the Supreme Court to hear on the issue of judicial overrides. In a 1988 dissent to a denial of writ of certiorari, Justice Thurgood Marshall wrote, “[i]t approaches the most literal sense of the word ‘arbitrary’ to put one to death in the face of a contrary jury determination where it is accepted that the jury had indeed responsibly carried out its task.”

Judicial override in Alabama may serve as an end to run around the Supreme Court’s mandate issued in Ring v. Arizona, entitling capital defendants to a jury when determining facts considered for a possible increase in the maximum punishment. A trial judge need only sit and wait through the sentencing phase with a sitting jury before imposing his own sentence via judicial override in order to avoid possible claims of denial of substantive due process, thereby reducing a capital defendant’s right to a jury at sentencing to a mere formality.

In Alabama, 20 percent of all persons sitting on death row are there by judicial override. All underwent a sentencing phase where a jury ultimately found the defendant should receive life without parole—sparing his or her life. Only two other states have judicial override options available to judges: Delaware and Florida. Delaware state judges are not elected and have never used the judicial override option to put someone on death row. Even though trial judges in Florida are elected, judicial override has not been used to sentence a defendant to death in over 12 years, highlighting its rare purpose. Alabama judges, however, have exercised their override option in 107 cases since 1976—98 of which were used to issue the death penalty.

Alabama currently has no standard in place dictating when a judge may usurp a jury’s verdict of life without parole and sentence a defendant to death. Alabama law requires a judge exercising judicial override to provide a written explanation why; however, it does not outline which reasons may be appropriate for limiting appellate review to a plain error standard. Consequently, Alabama judges, who are elected, retain unbridled discretion so long as they give any reason for their findings. For example, in the case of Mr. Lockhart, the jury overrode the unanimous jury’s life sentence in favor of the death penalty—citing to the Judge’s own belief that the jury was “emotionally and mentally worn out.” The Judge in that case further believed the jury was swayed by the victim’s family’s request for leniency. Even where the victim’s family discouraged a death sentence, the judge still imposed capital punishment. Conversely, in the case of Ms. Scott, who was convicted of killing her 6-year-old son by setting fire to her home, the judge overrode a jury’s life sentence for the death penalty explaining that the victim’s request for the death penalty factored into the decision to override the life sentence. Such contrary applications of the judicial override option are central to EJI’s Eighth Amendment claim against arbitrary application of the death penalty.

Whether the Supreme Court will accept certiorari in either Ms. Scott’s or Mr. Lockhart’s case is uncertain. At least two justices, Sonia Sotomayor and Stephen Breyer have expressed their disapproval of the option when they issued rare dissents to another denial of certiorari in 2013. Justice Sotomayor wrote in her dissent that the time was ripe for determining whether it is appropriate for “a single trial judge’s view to displace that of a jury representing a cross section of the community.”

While the death penalty has seen a steady decline in support, it has become a prevalent headline in current events. The Supreme Court is set to hear a case concerning Oklahoma’s use of unconventional drugs for lethal injection, as well as Florida’s own application of the death penalty. Further, as the Boston Marathon Bomber trial moves into the penalty phase, the question of whether to execute Dzhokhar Tsarnaev will be on the public conscious for the next several months. This increased spotlight on capital punishment—especially concerning how and when the courts administer it—could pressure the Supreme Court into hearing this issue next term.

By Robert Maes

Senior Staffer, Criminal Law Practitioner

Photo by Scott Jones via Flickr