How Alabama’s law on judicial override increases risk of executing the innocent

How Alabama’s law on judicial override increases risk of executing the innocent

Two of the many great lawyers at the Southern Center for Human Rights authored Innocence and Override, a compelling article in the August 2016 Yale Law Journal concerning innocent people on Alabama’s death row. The article recently prompted the editorial board of The New York Times to pen a piece called, “When Juries Say Life and Judges Say Death,” urging Alabama to abandon the practice of judicial override.

By way of background – in capital (death penalty) cases, once a defendant is found guilty by a jury, a separate phase of the trial is conducted wherein the jury hears evidence relevant to sentencing and then determines whether or not the convicted person should be sentenced to death. In an alarming 1 out of 4 capital cases in Alabama, judges used a process called judicial override and imposed the death penalty even though the jurors responsible for making that very decision decided to give a life sentence. Alabama is the only state in the entire country that still engages in judicial override in capital cases.

SCHR Attorneys Patrick Mulvaney and Katherine Chamblee argue that in Alabama, judicial override in capital cases increases the risks that an innocent person will be executed. The numbers bear out their assertion. While about 25% of Alabama’s death sentences are a result of judicial override, 50% of the exonerations from Alabama’s death row are from judicially overridden sentences.

Why? Jurors, the authors explain, have reported voting for life rather than death when they experienced a “residual doubt” about the legitimacy of the conviction. Essentially, jurors have described feeling that, while they may have had enough evidence to find the accused guilty – something, some kind of doubt – not quite a “reasonable doubt” but still a lingering, residual doubt – prevents them from then sentencing the person to death. Scholars have long recognized the important role of residual doubt in capital cases, and, in the early days of judicial override, US Supreme Court justices warned that judicial override eliminates the safeguard that lingering doubt affords against wrongful execution. Mulvaney and Chamblee give examples of jurors who cited residual doubt in imposing a life rather than death sentence, only to have a judge override the sentence and impose death upon an innocent person who was later exonerated. As noted by the authors, if jurors are recommending life because they have lingering doubts over guilt, “then [judicial] override targets cases with weaker evidence” and increases the risk of wrongful executions.

Mulvaney and Chamblee go on to argue that the US Supreme Court has previously struck down the death penalty where safeguards fail and there are increased risks of wrongful executions – such as its prohibition against executing a person with an IQ below a certain level. Because their intellectual disability makes such defendants more prone to giving false confessions and an inability to participate meaningfully in their own defense, the risk of their wrongful conviction and execution is increased. Basically, the criminal justice system’s safeguards against wrongful conviction / execution fail those with low IQ’s because they do not have the intellectual capacity to adequately access those safeguards. Likewise, the authors assert, the inherent safeguard against wrongful execution afforded by the residual doubt that motivates capital jurors to give life rather than death fails when judges judicially override those life sentences.

On September 16, 2016, The New York Times Editorial Board powerfully argued, “If one state embodies all the unreliability and arbitrariness of the death penalty in America in 2016, it is Alabama.” The Editorial Board piece, quoting extensively from Mulvaney and Chamblee’s article, concluded that the judicial override law in Alabama “undermines the sanctity of the jury’s role in our system of criminal justice. It also appears to increase the risk that wrongfully convicted people will be sentenced to die.”

We at Georgia Innocence Project do not typically work on death penalty cases in Georgia or Alabama. But as you can see, the issues of the imprisoned innocent permeate onto death row and the execution of an innocent person represents the ultimate and irreversible failure of our American criminal justice system. We urge you to follow this issue closely and get involved to help prevent the imprisonment and execution of innocent men and women in Alabama and Georgia.

Find the “Innocence and Override” article here:

Read The New York Times Editorial Board piece here:

Learn how to get involved in issues affecting the imprisoned innocent here:

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