Our Common Good

…the Equal Justice Initiative (EJI), a nonprofit criminal-defense and civil rights law and advocacy firm, released yet another in a series of reports that clearly demonstrate that the criminal-justice system, especially in the South, is broken and dangerously on the brink of illegitimacy. 

The EJI’s latest report (pdf) focuses on a little-known practice, permitted in only three states: judicial override. Florida, Delaware and Alabama allow judges to overturn jury-sentencing verdicts in death penalty cases. There are no individuals on death row in Delaware as a result of judicial override, and no judge has imposed a capital punishment override in Florida in the last 12 years. But according to the EJI report, judicial override in Alabama is almost always exercised to impose the death penalty when a jury has recommended life in prison. In fact, although judges have the authority under Alabama law to override a jury’s sentence of death and to instead impose a life sentence, 92 percent of judicial overrides are used to order death. 

According to EJI estimates, there are 40 men on death row in Alabama who were placed there after a judge overrode a jury’s sentence of life in prison. Given that Alabama imposes few obstacles to the imposition of the death penalty by juries (a death sentence does not require a unanimous verdict in Alabama — the agreement of 10 of 12 jurors is sufficient), and that jurors opposed to capital punishment are excluded from serving on Alabama juries, judicial overrides to impose death are particularly alarming. But these judicial overrides have not provoked charges of “activist judging,” confirming that the charge of judicial activism has simply become right-wing shorthand to describe a judge whose independence gets in the way of the conservative agenda.


Yet another devastating revelation is the evidence that judges override juries to impose the death penalty more often in a judicial election year. If one plus one still equals two, this is among the most searing indictments of judicial elections (still used in 38 states). It suggests that in some instances, judges, feeling the pressure of upcoming election contests, may either consciously or unconsciously make decisions that will shore up their “tough on crime” bonafides.

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