This post is part of an ACSblog symposium in honor of the unveiling of the Martin Luther King Jr. National Memorial. The author, Sherrilyn A. Ifill, is a professor at the University of Maryland School of Law.
In his speech “Give us the Ballot,” delivered on the third anniversary of the Supreme Court’s Brown v. Board of Education decision, Martin Luther King exhorted to a crowd in Washington, D.C., “give us the ballot and we will place judges on the benches of the South who will do justly and love mercy.” It must have seemed in those days – before the passage of the Voting Rights Act and in the midst of fierce southern judicial opposition to the implementation of Brown v. Board of Education – that this was indeed a simple proposition. If blacks were given the right to vote and participate in elections on an equal basis with whites in the South, the elected judiciary of the South would turn away from the unjust practices against African Americans that then plagued the system.
And so as we prepare for the ceremony unveiling the monument to Martin Luther King this week, one can only imagine how Dr. King would have responded to a recent report released by the Equal Justice Initiative, the Alabama-based civil rights firm, which reveals that judges in some southern jurisdictions use their judicial override power to impose death sentences on criminal defendants for whom juries had recommended a life sentence without parole. The report is the second in a series of studies conducted by EJI that takes a close look at inequities in the justice system in the South. The first was released last year and documented the alarming and systematic exclusion of African Americans from participation in southern juries in criminal cases. In its most recent report “The Death Penalty in Alabama: Judge Override,” EJI finds that although Alabama law allows judges to override a jury’s sentence of death and impose a life sentence, judicial override is used almost exclusively (92 percent of overrides) to impose death.
The decision by some judges in Alabama to reverse a jury verdict of life in prison is particularly alarming, given that there are few barriers to the imposition of the death penalty by juries in Alabama. For example, a jury decision to impose death need not be unanimous. Only 10 of 12 jurors are required to support a death verdict in that state. Moreover, jurors opposed to capital punishment are excluded from serving on juries in capital cases in Alabama. Given this reality, one would expect that a jury’s decision in Alabama to give a life sentence rather than death should be accorded great deference by judges. As Justice John Paul Stevens said in his 1995 dissent from the Supreme Court’s decision upholding the constitutionality of the Alabama judicial override, “death sentences imposed by judges over contrary jury verdicts . . . express contempt for [the jury’s] judgment.”
It comes as no surprise that race plays a disturbing role in judicial overrides in Alabama. The EJI study demonstrates that in 75 percent of judicial overrides, the homicide victim was white. Although African Americans are only a quarter of the state’s population, more than half the judicial overrides imposed in Alabama have sentenced African American defendants to death. And the taint of race in jury overrides falls on both black and white criminal defendants. Shockingly, one Alabama judge quoted in the report described the racial dynamic of his decision to impose death on one white defendant, explaining, “if I had not imposed the death sentence, I would have sentenced three black people to death and no white people.”
Elections appear to play a key role in judicial overrides to impose death as well. Contrary to the elected judges whom Dr. King imagined would “love mercy,” Alabama judges frequently refer to their imposition of the death penalty in campaign materials and television ads as demonstrating their qualification for remaining in office, appealing to a majority population that demands harsher and more merciless sentences in criminal cases. In one election year studied, 30 percent of death sentences were imposed by judicial override.
More than 50 years after Dr. King’s “Give us the Ballot” speech and 40 years after the passage of the Voting Rights Act, we must ask ourselves, what has become of the judiciary that Dr. King believed would usher in fairness and justice in southern courts?
King’s belief in a judicial election system in which blacks had access to the ballot didn’t take account of other structural impediments in our voting system – like at-large elections – that keep black voters submerged in a minority white electorate, a phenomenon that has resulted in the maintenance of an all-white judiciary in counties throughout the South. King’s belief in the ballot was borne before the rise of America’s modern love affair with harsh criminal sentences, which has resulted in a U.S. prison population that is the largest of any country in the world. King could not have imagined a judicial election system in which third party interest groups donate millions of dollars to elect judicial candidates, and in which some judicial candidates engage in down-and-dirty campaign tactics, distorting the records of their opponents and appealing to the lowest impulses of the public.
The commemoration of Dr. King’s life this week should not be one of just a monument unveiling and moving speeches. We have come far indeed – it will be our first black President who presides at the unveiling ceremony this weekend. But we have not come far enough. A return to Dr. King’s vision for our state judiciaries should compel us to take very seriously the findings in EJI’s report and push us towards re-examining the relationship between the ballot and the judiciary on state courts.