November 21, 2013

Private: The Deadly Problem with Judicial Elections in Alabama

Alabama, Justice Sonia Sotomayor, Meagan S. Sway

by Meagan S. Sway, Associate, Paul, Weiss, Rifkind, Wharton & Garrison LLP
On Monday, Justice Sotomayor illuminated what many Alabama defendants and their lawyers have long known: the closer it gets to election season, the less the Sixth and Eighth Amendments matter in capital cases. While only Justice Breyer joined Justice Sotomayor’s dissent, the practice of granting elected judges power to override jury sentences in capital cases should trouble all nine justices, as Alabama’s capital sentencing scheme undermines our entire justice system.
While a majority of the justices do not appear to accept that Alabama’s sentencing scheme violates a defendant’s Sixth Amendment right to trial by jury, the defendant is not the only player who loses as a result of granting a judge the power to override a jury’s recommendation—jurors also suffer. The Supreme Court has recognized in its Batson jurisprudence that discrimination against a veniremember deprives the defendant of his Sixth Amendment right to a jury and also denies the individual veniremember his “most significant opportunity to participate in the democratic process.” Powers v. Ohio (1991). Alabama’s judicial override system has the same problem. As shown in Bryan Stevenson’s mini-multiple regression analysis, there is a statistically significant relationship between a judge facing an election year and his exercise of judicial override. Thus, a person who serves on a jury, whose judge is facing an election, will see her vote count less than a person serving on a jury whose judge is not. This has the additional negative effect of causing jurors to lose faith in the system, because of the sense that whatever decision they reach it is subject to apparently arbitrary review (and potential reversal) by a judge. A juror may well ask herself, why bother?
The Court should be concerned with the startling appearance of impropriety that results from Alabama’s capital sentencing scheme. Judges are – and should be – supremely concerned about guarding against any appearance of impropriety, as it undermines society’s trust and confidence in the justice system. The Second Circuit’s recent sua sponte removal of Judge Shira Scheindlin from New York City’s stop-and-frisk litigation comes to mind. There, the court removed Judge Scheindlin because she directed related cases to her docket and granted media interviews while the stop-and-frisk litigation was pending.  Judicial overrides in Alabama provide much more damning evidence of judicial impropriety: Stevenson’s analysis demonstrating an overwhelming correlation between judicial elections and overrides; 92% of all judicial overrides result in death sentences; states where judges are not elected but have the power of override do not exercise that power; and Alabama judges themselves have admitted that elections have influenced their decisions to override a jury’s recommendation of a life sentence.

Then there are the anecdotes, which put into color what the statistics outline in black and white. One such anecdote is the contrast between Darwin Knight and Jarrod Taylor, both of whom were convicted of capital murder in separate incidents.  (Full disclosure: I and my firm represent Mr. Taylor.) Both defendants were sentenced in Mobile County before Judge Douglas Johnstone; Mr. Knight in August 1997 and Mr. Taylor one year later.  When the jury recommended, by a vote of 7 to 5, that Mr. Knight receive a sentence of life without parole, Judge Johnstone declared that he must follow the jury’s sentencing “decision, not a mere recommendation.” To do otherwise, he stated, “would reduce the performance of the jury to a sham.” Exactly one year later, Judge Johnstone found himself in a heated race for a seat on the Alabama Supreme Court.  This time, when the jury recommended by the same vote, 7 to 5, that Mr. Taylor receive a sentence of life without parole, Judge Johnstone expressed no trouble disregarding the jury’s vote because, he said, “it is high time for the defendant to be on the receiving end of the Golden Rule.” Judge Johnstone went on to win the Alabama Supreme Court seat, where he authored a dissent-in-part that declared that in failing to assign “binding effect to a life-imprisonment litigation by a jury, Alabama law reduces to a sham the role of the jury in sentencing and allows baseless, disparate sentencing of defendants in capital cases.” Ex parte Jackson (Ala. 2002).
The appearance (and existence) of impropriety is only going to metastasize.  As the Center for American Progress pointed out in its October 2013 report, a direct link exists between increased campaign contributions to judges and rulings against criminal defendants.  While seven justices passed on Mario Woodward’s case on Monday, if current trends continue, there will come a time when the Court can no longer ignore the corrosion of our justice system caused by Alabama’s capital sentencing scheme.
For additional ACS resources on state courts and judicial elections, please visit our State Courts Resources Page.

Criminal Justice, Death Penalty, Judicial independence