SOUTH UNION STREET

Senate votes to end judicial override in capital cases

Brian Lyman
Montgomery Advertiser

The Alabama Senate on Thursday overwhelmingly voted to end the practice of allowing judges to overrule jury sentences in death penalty cases.

This file photo shows Alabama's  lethal injection chamber at Holman Correctional Facility in Atmore, Ala.   Disease and suicide are claiming inmates on Alabama’s death row faster than the executioner. With Alabama’s capital punishment mechanism on hold for more than two years because of legal challenges and a shortage of drugs for lethal injections, five of the state’s death row inmates have died without ever seeing the inside of the execution chamber.

The bill, sponsored by Sen. Dick Brewbaker, R-Montgomery, passed the chamber 30 to 1. It now moves to the House of Representatives.

The wide margin of approval came as something of a surprise for a bill that needed a tie-breaking vote to get out of committee on Feb. 8. Brewbaker said after the vote that senators “got educated” about what the bill does.

“It wasn’t an anti-death penalty vote,” he said. “It was cleaning up a procedure detrimental to the jury system and that calls into question the integrity of jurisprudence in Alabama.”

Alabama is the last state where judges can override sentences imposed by juries. Critics say that the practice imposes pressure on judges to impose stiff sentences based on election considerations. U.S. Supreme Court Justice Sonia Sotomayor in 2013, writing in dissent in an appeal of Mario Dion Woodward’s death sentence for the 2006 murder of Montgomery police officer Keith Houts, said override “casts a cloud of illegitimacy“ on sentencing decisions.

Barry Matson, the director of the Office of Prosecution Services, suggested at a hearing on a similar House bill last week that judges might be able to make necessary decisions about the death penalty that jurors find difficult. Sen. Trip Pittman, R-Montrose, who voted against the bill, managed to put an amendment on Thursday that states the bill is not retroactive.

“I have confidence in all cases that (judges) will use discretion when they consider arguments and evidence that support the death penalty,” he said.

Brewbaker, however, said he heard no support from judges for judicial override.

“I did not have a single judge, not one who talked to me formally or informally, tell me they need to keep judicial override,” he said. “They were very frank that people use it to pressure them in election years.”

The Montgomery-based Equal Justice Initiative says that 101 judicial overrides in Alabama from 1978 to 2016 changed a defendant’s sentence from life in prison to death. 11 changed the sentence from death to life. Brewbaker cited statistics at the Feb. 8 committee meeting that 12 of 23 overrides conducted between 2005 and 2015 came in election years.

The senator said Thursday he didn’t believe judges were “consciously allowing politics” to influence sentencing decisions, but that override “taints the process.”

The U.S. Supreme Court struck down Florida’s use of judicial override in Hurst v. Florida, a 2016 decision that left Alabama the only state to continue the practice. Alabama’s practice was different from Florida’s scheme, but Brewbaker told the Advertiser in January he expected the U.S. Supreme Court to eventually strike down Alabama’s use of it.

Rep. Chris England, D-Tuscaloosa, is sponsoring a House version of the bill that not only gets rid of judicial override but would also require sentences of death to have the unanimous support of a jury, up from the 10 jurors currently required. The House Judiciary Committee approved the bill last week. House Speaker Mac McCutcheon, R-Monrovia, said Thursday the juror issue would be a point of discussion.

“I think there will be some debate over it, but there’s some positive comments coming in the House membership about that bill,” he said. “I think there’s a possibility that we could pass it.”

Brewbaker called judicial override a “moral issue,” saying that a crime of violence against an individual was also a crime against the community.

“That’s why why have the trial in the community; that’s why we draw the members from the community and they decide guilt, innocence and punishment,” he said. “Judicial override flies in the face of all of that.”