Alabama is the only state in the country where jurors take a backseat role in death penalty proceedings, leaving judges with the final say on whether an inmate lives or dies. And it looks like that’s not going to change anytime soon.
The U.S. Supreme Court on Monday declined to review the cases of three death row inmates challenging the constitutionality of Alabama’s death penalty sentencing laws. The decision is seemingly at odds with one made last January, when the high court ruled 8-1 to strike down a similar law in Florida because it violated the Sixth Amendment’s guarantee of a trial by jury.
As a result of the ruling in Hurst v. Florida, the state supreme courts in Florida, Alabama, and Delaware, which all had similarly unusual sentencing structures, were asked to re-examine the constitutionality of their death penalty laws. Justices in Florida and Delaware ruled their laws unconstitutional. Not so in Alabama. Last October, the state’s Supreme Court upheld its laws, which in turn invited an appeal by three death row inmates: Tommy Arthur, Jerry Bohannon, and Aubrey Shaw.
Under current sentencing laws in Alabama, just 10 out of 12 jurors must agree on whether to sentence an inmate to death, whereas most states require a unanimous decision. Still, the final say resides with the judge to overrule or agree with the decision and hand down the sentence.
Randy Susskind, an attorney with the nonprofit Equal Justice Initiative, said giving jurors an advisory role in death penalty proceedings deprived them of the “seriousness of purpose that the Constitution requires.”
“Ultimately, no matter what happened, the judge was able to make the final decision,” he said.
According to Equal Justice Initiative, more than one-fifth of the 199 people currently on Alabama’s death row were handed a death sentence through judicial override. Since the reinstatement of the death penalty in 1976, Alabama judges have overridden jury verdicts in death penalty cases 107 times. In 92 percent of those overrides, judges overruled jury verdicts of a life sentence to impose the death penalty.
Certain judges have taken advantage of this quirk in Alabama’s death penalty law more than others, particularly in Montgomery and Mobile counties. The Equal Justice Initiative found that Mobile County Judges Braxton Kittrell and Ferrill McRae have overridden a combined 11 life verdicts to impose a death sentence. Similarly, former Montgomery County Judge Randall Thomas overrode five life verdicts to impose the death penalty.
In November, the Supreme Court granted Tommy Arthur, 74, his seventh stay of execution while they considered two separate challenges to Alabama’s death penalty sentencing structure and its lethal injection protocol. The high court’s refusal to hear the three cases doesn’t affect Arthur’s current stay, which relates to lethal injection.
Amid waning public support for capital punishment and shortages of lethal injection drugs, executions nationwide hit a 25-year low last year. Alabama executed two inmates in 2016. Only five of the 32 states that have the death penalty carried out executions last year.