Alabama, Delaware and Florida were in a very small club at the start of 2016, but Alabama now stands alone - last in the nation to embrace a set of rules, deemed unconstitutional elsewhere, that increases the likelihood of a death sentence.
All 3 states were the only ones in the nation to allow judges to override jury recommendations for life without parole and instead impose the death penalty. And they also were the only states that didn't require jury advisory votes for the death penalty be unanimous.
Since January, however, courts have ruled those practices unconstitutional in Delaware and Florida. The most recent ruling came last Friday when the Florida Supreme Court ruled that jury recommendations for the death penalty must be unanimous.
That leaves Alabama as the only state that allows judges to override jury recommendations and the only one to allow split juries to recommend death. In Alabama, at least 10 of 12 jurors must vote for a death recommendation.
But there have been signals that the U.S. Supreme Court may be taking aim at Alabama.
"Alabama is out on the limb and the U.S. Supreme Court has already suggested it might be pulling out the saw," said Robert Dunham, executive director of the Death Penalty Information Center.
One sign that Alabama's death penalty law is on the U.S. Supreme Court's radar is that the high court this spring sent back the cases of 3 death row inmates for the Alabama Court of Criminal Appeals to review. The U.S. Supreme Court didn't say in its brief orders what it was about each of those cases that the Alabama appellate court should consider because in all 3 the judges followed jurors' recommendations for death. One recommendation was unanimous and the other 2 split decisions.
Now the Alabama court must see if the sentences should be overturned in light of the federal decision in January. In that case, the U.S. Supreme Court overturned the law in Florida that allowed judges to override jury recommendations.
"That suggests that the U.S. Supreme Court is looking at this issue," Dunham said.
While the Alabama Court of Criminal Appeals hasn't ruled on those 3 cases, that same court has since declared Alabama's death sentence law constitutional in light of the Florida case anyway.
That happened in June when the state appeals differed with Jefferson County Circuit Judge Tracie Todd. The state court ordered Todd to vacate her March 3 ruling that declared the state's capital punishment sentencing scheme unconstitutional in the cases of 4 men charged with capital murder in her court. She had considered the Florida case in her order.
Then on Sept. 30, the Alabama Supreme Court weighed in. The Alabama Supreme Court ruled in the case of Death Row inmate Jerry Bohannon that Alabama's death penalty law is constitutional in light of the U.S. Supreme Court's ruling in Hurst v. Florida in January.
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District attorneys and Alabama Attorney General Luther Strange have said Alabama's law is not the same as Florida's.
The AG's office and district attorneys have said the U.S. Supreme Court held in the Florida case that a jury, not the judge, must find the aggravating factor in order to make someone eligible for the death penalty. Alabama's system, however, already required the jury to do just that in either the guilt or sentencing phase, they said.
Once a jury has unanimously made the factual determination that a defendant meets the criteria to be eligible for the death penalty, the judge may make the legal determination of whether to impose it or not, the attorney general has stated.
"The Hurst ruling has no bearing whatsoever on the constitutionality of Alabama's death penalty, which has been upheld numerous times," the AG's office has stated.
The Alabama Attorney General's Office declined an interview this week regarding Friday's new ruling in Florida regarding unanimous jury recommendations for death sentences, but a spokesman for the office offered a response.
"Florida and Alabama have different laws regarding death penalty sentencing," Mike Lewis, communications director for the attorney general. "Alabama's Supreme Court has already found Alabama's death penalty law to be constitutional."
Alabama's sentencing scheme in death penalty cases is the same as Florida's, which was ruled unconstitutional last month by the U.S. Supreme Court, a number of Alabama defense lawyers are arguing to get death sentences barred in their cases.
But Emory Anthony, a Birmingham lawyer who has filed motions for about 5 defendants seeking to have their capital murder charges dismissed in light of the Hurst decision, believes judicial override and non-unanimous will be changed.
"We're still trying to hold on to something that will have to be changed legally," Anthony said, adding that the state has been "dragging our feet" because elected judges and justices and prosecutors want to show the electorate that they're tough on crime.
"I think we are finding out that one individual should not be the final voice on whether someone should live or die. That should be a decision for 12 people," he said. "I don't know why we are so hard headed. It is almost stupid when you think about it."
At least 2 U.S. Supreme Court justices - Sonia Sotomayor and Stephen Breyer - have indicated in recent years that it may be time to look again at Alabama's death penalty sentencing law when it comes to overrides by judges.
Alabama is the only state in the last decade where judges have imposed the death penalty despite of contrary jury verdicts, according to the dissent. Since adoption of this statue, Alabama has imposed death sentences on 95 defendants when a jury voted to sentence them to life.
Within days after the SCOTUS decision in the Hurst case in Florida attorneys for Alabama death row inmate Christopher Brooks argued that his execution should be halted because Alabama's death penalty sentencing law was similar to Florida's.
SCOTUS declined to stop Brooks' Jan. 21 execution.
But Justice Sonia Sotomayor, with whom Justice Ruth Bader Ginsburg agreed, noted in the court's denial of Brooks' motion that the court in Hurst v. Florida had overruled the 2 cases that underpinned Alabama's law, basically knocking out any legal foundation for Alabama's system. But procedural obstacles would have prevented the court from granting the stay of Brooks' execution, she wrote.
Justice Stephen Breyer also wrote that SCOTUS has recognized that Alabama's sentencing scheme is much like and based on the one used in Florida that has been declared unconstitutional. "The unfairness inherent in treating this case differently from others which used similarly unconstitutional procedures only underscores the need to reconsider the validity of capital punishment under the Eighth Amendment," Breyer wrote in the Brooks' opinion.
Sotomayor in a 2013 dissenting opinion in the case of Mario Dion Woodward, who was convicted in the shooting death of Montgomery Police Officer Keith Houts, said it's time to look at Alabama's law again.
She noted that while Florida, Delaware and Alabama still had override laws at that time, Alabama judges were the only ones who were still using it. No one is on Delaware's death row as a result of an override and no death sentences have been imposed by override in Florida since 1999.
Since 1976, Alabama judges have overridden jury verdicts 112 times, according to the Equal Justice Initiative.
"18 years have passed since we last considered Alabama's capital sentencing scheme, and much has changed since then," Sotomayor wrote. "Today, Alabama stands alone: No other State condemns prisoners to death despite the considered judgment rendered by a cross-section of its citizens that the defendant ought to live."
Source: al.com, October 21, 2016
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