Debating the Death Penalty: Judicial Override of Life Sentences

In 1986, 18-year-old Ronda Morrison was shot in the back multiple times while working her job at Jackson Cleaners in Monroeville, Alabama. Under pressure from police, Ralph Meyers, who was facing charges for a different crime implicated Walter McMillan in the murder of Ms. Morrison. McMillan, however, insisted that he was hosting a fish fry at his home at the time of the crime and his account was supported by many witnesses who were present at the event. All of these witnesses were Black. Ultimately, McMillan was tried and convicted of aggravated murder by a jury comprising eleven white jurors and one Black juror. The jury recommended life in prison, but the state of Alabama at the time allowed judges to override the sentencing recommendations of juries. The judge in McMillan’s case ignored the jury’s recommendation and sentenced him to death. Despite the outcome of the trial, MacMillan was factually innocent of the murder. (And Myers later recanted his account of the events.) As a result of the appeals process, after spending six years on death row, McMillan was exonerated and released.

In 1975, Furman v Georgia effectively abolished the death penalty across the country. One dominant rationale for the decision was that there was strong evidence that the death penalty was not imposed in a consistent way – the manner by which it was meted out in practice provided evidence of strong racial bias. The court ruled that states must ensure that sentencing not be discriminatory or capricious.

In response to the Furman decision, four states passed legislation allowing for judicial override of jury sentencing recommendations: Alabama, Delaware Florida, and Indiana.

The initial rationale for passing these laws was to reduce the number of cases in which the death penalty was imposed. The idea was that judges could overturn jury recommendations of a sentence of death and instead impose a sentence of life in prison.

However, the legislation also gave judges the power to go in the other direction — to overturn a jury’s sentence of life in prison and instead impose death.

The primary concern with this kind of legislation is that it violates the defendant’s sixth amendment right to a trial by jury. In recent years, all of these states have, in principle, abolished the practice of judicial override of this type. In practice, however, Alabama still executes individuals who were sentenced to life by juries but death by the judge, even though it abolished judicial override in 2017.

This issue made news again earlier this month as the execution date of Kenneth Eugene Smith approached. In 1988, Smith was convicted of murder for hire; a preacher paid him $1000 dollars to kill his wife, Elizabeth Sennett. Smith stabbed her eight times in the neck and chest. The jury in his second trial voted 11-1 to impose a life sentence, and the judge took advantage of his ability to override this decision and impose the death sentence instead.

The right of a person to be tried and sentenced by a jury of their peers is a cornerstone of democracy. We do not want punishment to be exacted at the hands and in the interests of tyrants.

We value a process of rational deliberation and discourse that allows a group of people who share similar cultural and moral values to evaluate evidence and to engage in discourse to come to agreement on what conclusions the evidence supports. This process, we think, generates the best conclusions we could hope to reach. In theory, the deliberative procedure ensures fairness.

Unfortunately, the decisions a jury reaches do not always live up to the standards of procedural fairness. Individuals are prone to bias and that bias does not always, or even often, disappear when you get more people together. In fact, problems of bias can often intensify under these circumstances. A juror who might otherwise be leaning toward acquittal or toward a lighter sentence might be hopelessly influenced by peer pressure during deliberations.

It’s also true that there are no standards when it comes to the required intelligence levels and educational backgrounds of jurors. So, the same concerns some have about voters may also apply to jurors  — sometimes groups of people who don’t know much about the things they’re being asked to decide make very bad decisions. This is a heightened challenge when cases turn on highly technical evidence or on the finer points of the law.

It might be tempting, then, to think that the most serious and impactful decisions should be left to people who know the system best. Certainly, judges know the law; they’ve heard evidence of all types and presumably have refined methods for processing and interpreting it. They may not be subject to the same kinds of bias that one might expect to see in a group of jurors. If they see a person who might be sentenced to death as a result of racial bias, they can stop it before it happens. On this view, judges are like Plato’s philosopher kings, adept at reason and in a position to serve as a shield against the tyranny of the many, in this case, the jury. Of course, this is hopelessly idealized as well.

All human beings act in biased ways, and judges are no exception. Far from shielding us from tyranny, when judges make decisions unilaterally and in conflict with the decisions of the jury, they may simply be acting as tyrants.

Judges also often have political aspirations and are subject to elections. This means that they have good reason to desire that their decisions in any particular case are politically popular. This seemed to have played a role in the sentencing of both McMillan and Smith. It was common knowledge in McMillan’s community that he had affair with a white woman in an area and at a time during which people had deeply bigoted attitudes toward interracial relationships. For this reason, a death sentence for McMillan may well have been popular with local voters. In the Smith case, the sentence was imposed during a second trial granted after an appeal of the results of the first. In the first trial, Smith was sentenced to death by the jury and many members of the community were distressed that the sentence might change — they viewed a life sentence as a miscarriage of justice. After all, Smith was willing to take someone’s life for the paltry sum of $1000.

To meet their burden of proof, the prosecution must present evidence that convinces the jury beyond a reasonable doubt that the defendant is guilty.

We’d all like to think that jurors always take that standard seriously, but human beings are fallible. One of the reasons why a jury might opt for a life sentence instead of death is lingering doubt about the guilt of the defendant.

If it turns out that the jury got it wrong, a life sentence allows for a much greater possibility that the truth will come to light, and the innocent person will be exonerated. Death preempts that possibility permanently.

In another twist in this case with serious moral implications, on November 17th, the state of Alabama attempted to execute Smith. They tried, unsuccessfully, to find a vein and establish a line to administer drugs that would kill Smith. They prodded him with needles for an hour before finally giving up and calling off the execution for the night. This is the third time that this problem has occurred during an execution in the state, raising concerns about the competency of the people charged with killing human beings in the name of the state.

Critically, this case motivates reflection on one of the most important questions our country faces: should we abolish the death penalty outright? Death is the most extreme and irreversible punishment a society can impose. Ought we be imposing a sentence this severe when judges and juries can come to such dramatically different conclusions about whether it is appropriate in any given case? If we think that there are fundamental flaws with both jury and judicial sentencing, should we be willing to accept death as an outcome of an inescapably flawed system? If, on top of all of this, the ability to impose the death penalty humanely in practice is so often called into question by botched case after botched case, isn’t the death penalty obviously cruel and unusual?