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| Alabama death row |
If one state best embodies all the irrationality, unreliability and arbitrariness of the death penalty in America in 2016, it is Alabama.
With a population of just under five million, and with more than 450 people sentenced to death since 1977, Alabama has by far the
highest per-capita death-sentence rate in the country. And yet in nearly one in four of those cases, the jury voted for life in prison — in some cases unanimously — only to be overruled by the judge.
The state law authorizing these judicial overrides, now the only law of its kind in the country, was passed in 1981, in theory to allow judges to protect defendants from vengeful or careless juries. In practice, the opposite has happened. While Alabama judges have
converted death sentences to life in 11 cases, they have rejected the jury’s mercy and chosen death in 101, nearly a quarter of all death sentences handed down in Alabama since 1982.
Now there is evidence that these override cases involve a disproportionate number of wrongful convictions. Three of the six Alabama death-row inmates who have been freed from prison since 1981 were condemned by a judge after the jury voted for life, according to a paper published last month in
The Yale Law Journal.
The paper’s authors, Patrick Mulvaney and Katherine Chamblee, both capital-crime defense lawyers, call this discrepancy unsurprising. They attribute it to the phenomenon of “residual doubt” among capital jurors, who must decide on guilt and punishment in separate phases of a trial. When jurors are faced with a life-or-death decision, they may be confident enough to convict, but not so confident to vote for execution. Beyond a reasonable doubt, in other words, doesn’t always mean no doubt at all.
Studies have found that residual doubt of guilt is the most important factor in capital jurors’ decision to spare someone’s life — even more than other mitigating factors like childhood trauma — and it may well explain why half of the exonerations in Alabama were cases in which jurors initially voted against death. In each case, prosecutors were found to have withheld exculpatory evidence from the defense. A juror in the trial of Daniel Wade Moore, who was sentenced to death by a judge in 2003 and
exonerated in 2009, told the paper’s authors that even after voting to convict Mr. Moore, he voted for life in prison because he was “still unsure” about Mr. Moore’s guilt. In 2010, the trial judge, Glenn Thompson,
said he “didn’t think the state had proven” its case, but overrode the jury’s vote and sentenced Mr. Moore to death anyway. His explanation? “The jury said that he did it.”
Judge Thompson, like all Alabama jurists, was elected to his seat, which only increases the pressure to act tough on crime — as
judges themselves openly admit. In 2013, Justice Sonia Sotomayor pointed to this problem in her dissent from the Supreme Court’s refusal to consider a challenge to Alabama’s law. The state’s judges,
she wrote, “who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”
Justice Sotomayor was right to say that the override law 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.
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