Alabama ended judicial override. Will it spare the prisoners left behind?

On Oct. 20, Alabama Gov. Kay Ivey did something quite unusual for the chief executive of a deep-red and pro-death-penalty state: She commuted the death sentence of Toforest Johnson, who had been convicted of the 1995 murder of Deputy Sheriff William Hardy.  

This was the 3rd time Ivey had used her clemency power to spare the life of someone awaiting execution. As she explained to the media, “’When presented with Mr. Johnson’s case, I had concerns there was not enough direct evidence to carry out the most serious punishment, death. My decision is not a determination of innocence, but a recognition that the circumstances of this case justify commuting his death sentence to life imprisonment, without possibility of parole.’” 

But there is another circumstance to which Ivey should now attend as she seeks to ensure justice “could effectively be delivered through capital punishment” — namely the fact that two dozen people are on her state’s death row because the judges in their trials ignored juries’ recommendations that their lives be spared. 

That process is called “judicial override.” At one time or another, it was authorized for use in capital cases in only four states: Alabama, Delaware, Florida and Indiana. But attorney Meghann Lamb explains that Alabama’s judicial override statute was unique because “it did not provide judges with clear standards to determine when judicial override was appropriate.” 

Today, Alabama is the only one of those states carrying out executions that resulted from judges overriding jury verdicts. 

While it was originally thought of as a device to protect defendants in capital cases from jury verdicts driven by anger and emotion, it became something entirely different. It allowed judges, who are elected in Alabama, to show their own tough-on-crime credentials by sentencing convicts to death, even where juries voted for life sentences instead. 

The judges were much more likely to take such votes during election years.  

Black defendants were also more likely to be on the losing end of judicial overrides than were white defendants. Lamb reports that “Studies have shown that only six percent of ‘murders in Alabama involve Black defendants and white victims,’ but thirty-one percent of the state’s judicial override cases involve a ‘defendant of color’ and a white victim.” 

Alabama’s unjust and racially discriminatory judicial override system ended in April 2017, when, on her first day in office, Ivey signed legislation abolishing judicial override. She did so even though the Alabama Supreme Court had upheld judicial override the previous October.  

Alabama was the last state to abolish it. But the repeal of judicial override was not made retroactive. Since its repeal, Alabama has continued to carry out executions that resulted from judges overriding jury verdicts. Alabama Attorney General Steve Marshall defends that practice, arguing that “The fact that Alabama made future juries’ judgments binding does not show a societal will to undo long final sentences, for the democratically elected legislature specifically chose not to retroactively apply the new sentencing regime to prisoners already on death row.” 

In 2024, state Rep. Chris England (D) introduced a bill in the Alabama House of Representatives to apply the repeal of judicial override retroactively. He reportedly told his colleagues, “We all decided that judicial override was wrong, and we repealed that section. The only right thing to do, in my opinion, is to afford everybody who was sentenced by judicial override the opportunity to be resentenced.” 

But the Judiciary Committee of the Alabama House of Representatives was not persuaded, and rejected England’s proposal.  

The AP quotes one of the opponents of the retroactivity legislation as saying, with no hint of irony: “’The law that was in effect at the time allowed judicial override. These judges, in their discretion, overrode. Consequently, it’s very difficult for me to second guess or in effect override that.’” 

And no court has ever reduced the sentence of someone whose death sentence was imposed through override. 

So, the ball is in Ivey’s court. Ivey isn’t running again, and her term ends in January.  

Freed from political constraints, governors have often used their last months in office to exercise their clemency power in capital cases. Alabama’s governor should do likewise. 

Ivey has already shown herself willing to use that power to rectify miscarriages of justice. She should see and rectify the injustice of carrying out the death sentences of the two dozen people sentenced under a now repealed statute.  

No one else should go to their death in Alabama because a single person thought they knew better than a group of 12 jurors. 

Source: The Hill, Austin Sarat, November 9, 2026

"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
— Oscar Wilde

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