By The Editors

A study released last month by the Montgomery, Alabama-based Equal Justice Initiative shows that Alabama is unique even among the other 33 states which have capital punishment laws. It is the only state whose statute enables judges to easily overrule jury decisions in capital cases imposing a sentence of death or life without the possibility of parole. As a result, Alabama judges have overwhelmingly chosen to discard jurors’ sentences of life and impose a death sentence.

“It is a practice,” the report states, “that dramatically exemplifies how contemporary death sentencing is vulnerable to politics, bias and arbitrariness.”

According to the document (PDF), “The Death Penalty in Alabama: Judge Override,” since capital punishment was reinstated in 1976, Alabama judges have overruled jurors’ decision a total of 107 times. They have thrown out jurors’ sentences of death in 9 of those cases, sentencing the defendant to life without the possibility of parole. By contrast, they have discarded jurors’ sentences of life in 98 cases and imposed a death sentence. The latter included seven in which judges overruled jurors’ life verdicts to impose a death sentence children under 18, including one who was 15 at the time of his sentencing.

Forty-one of the 199 inmates on Alabama’s death row were sentenced via judge override, the report says; and 10 of the 53 inmates the state has executed since 1976 were sentenced by judge override.

The report declares that judge override is “the primary reason” why Alabama has the nation’s highest per capita death sentencing rate and execution rate. In 2010, Alabama, whose population is 4.5 million, imposed more new death sentences than eight other states – Georgia, Maryland, Virginia, Arkansas, South Carolina, Oklahoma, Kentucky and Louisiana – combined. Its number of new death sentences even topped that of Texas, which has a population of 24 million and a reputation as a death-penalty state.

According to data from the Texas Department of Criminal Justice, its death row currently houses 312 inmates.

Florida and Delaware also have judge-override provisions in their capital punishment laws. But their use is strictly regulated, and they’re rarely invoked. Neither state has any inmate on death row who was sentenced by judge override, according to the report. The Equal Justice Initiative report attributes the frequency of the practice in Alabama to several factors.

One is that state’s capital punishment statutes have no strict standards governing its use; and the state’s appellate courts have little heeded an Alabama Supreme Court ruling that trial judges must produce reasoned written explanations for overruling jurors’ sentencing decisions.

But the report says the primary reason for judges’ use of their override power is the fact that the state’s lower-court judges are elected to six-year terms. “Fueled by ‘tough-on-crime’ rhetoric in partisan judicial elections,” the document contends, “…override in Alabama is heavily influenced by arbitrary factors such as the timing of judicial elections, the politics of the county where the accused is prosecuted, and the outsized enthusiasm of certain judges for overriding life verdicts.”

Race also plays a significant role in the process, the report says. Murders of whites annually total less than 35 percent of all murders in the state; but 75 percent of the cases in which judges overrule jury life verdicts to impose a death sentence involve white victims. More than half the judge overrides in which the death sentence has been imposed involve African-American defendants. Finally, none of the state’s 19 appellate judges and only one of its 42 elected District Attorneys is black.

The report was criticized by retired Mobile County Judge Braxton Kittrell, whom the report said had overruled juror life verdicts to impose a death sentence at least five times. He told the Mobile Press-Register the report was a matter of death penalty opponents seeking “anything they can find to tarnish or stain the process.”

He went on to say that

“judges are accustomed to dealing with crimes, criminal behavior, punishments and the criminals themselves, and they have a unique perspective of which crimes and which defendants ought to receive the death penalty. Jurors, on the other hand, are almost invariably dealing with their one and only capital case and are much more reluctant to impose the death penalty, even when it might be much deserved.”

Yet, judge override decisions that have been appealed have a checkered record: 37 percent of inmates sentenced to death via that practice have had their convictions or sentences reversed the report states.

Further, convictions in capital cases in Alabama “are heavily skewed” to imposing death sentences. For one thing, potential jurors who oppose capital punishment are always excluded from jury service. For another, Alabama is one of the few capital punishment states where a unanimous jury decision isn’t required to impose a death sentence; it takes only 10 votes. So, it is significant that in more than 90 percent of the cases involving judge override, jurors chose to impose a life sentence.