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Administration of justice or the preservation of political office: the unconstitutionality of judicial override in Alabama death penalty cases.

INTRODUCTION

Perhaps no other area of law generates as much debate and research as the death penalty. Death penalty research covers a wide range of topics, and seeks to understand the moral, legal, political, philosophical, and psychological underpinnings of the ultimate punishment. While this research has been extensive, it has not been exhaustive. One topic in particular deserves further attention: the judicial override in Alabama.

Judicial override is the process by which a judge "overrides" a jury's recommended sentence. While thirty-five states have death penalty statutes, (1) only three states allow for judicial override. (2) Alabama, however, is the only state in the country that combines the partisan election of judges with judicial override. Further, Alabama is unique because the "trial judge has unbridled discretion to sentence the defendant to death," over a jury's recommendation of a life sentence, due to the "complete absence of standards to guide a judge's consideration of the jury's verdict." (3) The unique combination of politics and deficient judicial standards for the override process in Alabama demands further analysis.

Even though the United States Supreme Court has failed to recognize a constitutional right to a jury sentence in capital cases, (34) the right may still exist. This paper will attempt to show that the practice of judicial override in the state of Alabama is unconstitutional. Judicial override and partisan judicial elections cannot coexist in a fair justice system because a judge seeking political office has a vested interest in imposing heavier sentences. Section I sets out to define the process of judicial override in Alabama. Section II highlights the extreme political nature of the Alabama judiciary. Section III provides a summary of relevant Supreme Court decisions. Section IV examines the arguments in favor of judicial override. Section V attacks the arguments of those in favor of Alabama's flawed system, and challenges that system as unconstitutional. Section VI offers suggestions for a solution.

There are many troubling features of judicial override in Alabama. Perhaps the most troubling characteristic is that a judge, quite literally, holds a life in his hands. Because one person may determine life or death, there is substantial room for error: The case of Walter McMillian, who was tried and convicted of murder, illustrates how close the override has come to taking an innocent life. (6) The jury convicted McMillian due largely to the state's eyewitness testimony. (7) In contrast, the jury did not believe McMillian's alibi witnesses. (8) In fact, the jury disregarded multiple ac counts of defense witnesses providing a solid alibi for McMillian. (9) Despite the jury's certainty regarding these witnesses, it still recommended McMillian serve life in prison rather than receive a death sentence. The judge, however, unilaterally overrode the jury's recommendation and imposed the death sentence. (10) Because of Alabama's judicial override procedure, the judge was able to sentence McMillian to death over the jury's recommended sentence. (11) McMillian, however, was exonerated of this crime because he was innocent. (12) The judge's attempt to be "tough on crime" nearly cost an innocent man his life. Because of the possibility that an innocent person may be executed by the state, the decision to condemn an individual to death should be left to an impartial jury. This decision should be taken out of the hands of judges who might have a greater interest in securing their office through a "tough on crime" stance, rather than securing justice.

I. THE PROCESS: HOW JUDICIAL OVERRIDE WORKS IN ALABAMA

Alabama enacted its current death penalty statute in 1981. (13) This statute has undergone little transformation in subsequent decades. (14) In order to be eligible for the death sentence in Alabama, a unanimous jury must find beyond a reasonable doubt that the defendant is guilty of "capital" murder. (15) Once a defendant has been convicted of a capital offense, "the trial court shall conduct a separate sentencing heating to determine whether the defendant shall be sentenced to life imprisonment without parole or to death." (16) The statute gives the defendant the right to have his sentencing heating conducted in front of a jury. (17) At the sentencing hearing, the state and the defendant may offer evidence on any matters relating to statutorily prescribed aggravating or mitigating circumstances. (18) At the close of the sentencing hearing, the jury deliberates and recommends a sentence. (19)

The jury may recommend a death sentence only if at least ten jurors support such a recommendation. (20) After the jury recommends its sentence, the statute requires that the trial judge consider the same factors as the jury and decide whether or not to adopt the jury's recommendation. (21) The practical effect of the statute's language is that jury sentences are merely advisory in nature. In order to condemn a defendant to death, the jury must find that there was at least one statutorily prescribed aggravating circumstance present during the commission of the crime. (22) In addition, the aggravating circumstances must outweigh the mitigating circumstances offered by the defense. (23) The jury's sentence recommendation must be considered, but it is not binding upon the court. (24) The judge does not have to afford any deference to the jury's recommendation. Consequently, Alabama judges have the power to completely ignore a jury's recommendation, and then impose a death sentence.

One would think that judges would reserve the process of judicial override to the rare cases where it is clear that the jury was incorrect. However, judges use the override to impose the death sentence substantially more often than they use it in favor of a life sentence. (25) In fact, the main argument made by advocates of judicial override is that the process is supposed to insulate defendants from prejudiced juries by "provid[ing] capital defendants with more, rather than less, judicial protection." (26) Sadly, no law in Alabama protects capital defendants from prejudiced or overzealous judges. Alabama's elected judges have used the override extensively, perhaps in an attempt to appear tough on crime. (27) Because of the override provision, the state of Alabama sentences more people to death, per capita, than any other state in the country. (28) In fact, from 2001-2006, Alabama led the nation in imposing new death sentences. (29) Judicial override played a pivotal role in exalting Alabama to this loathsome status by accounting for 30% of the death sentences over that period. (30)

A study conducted last year by the Equal Justice Initiative showed that since the Supreme Court reinstated the death penalty in 1976, Alabama judges have overridden 84 jury recommendations for life. (31) The study pointed out that during that same period, judges were much less likely to override a death sentence and grant a life sentence. Furthermore, "[o]f the 198 prisoners currently on death row in Alabama, 20% were condemned to death by a judge who threw out the jury's decision that death was not the appropriate punishment." (32) It is painfully apparent from these figures that use of judicial override in Alabama is far from impartial. In fact, the fundamental purpose of the override--protecting criminal defendants from overzealous juries--is undermined by the fact that some judges may use the device for political gain.

II. POLITICAL JUSTICE: How TO BECOME AND STAY A JUDGE IN ALABAMA

The extreme political nature of the Alabama judiciary is readily apparent. All judges in the state of Alabama are elected through partisan elections. (33) In the Alabama Supreme Court election in November of 2008, candidates spent over five million dollars campaigning for a single seat on the state's highest court. (34) According to the 2008-2009 President of the American Bar Association, this was the most money ever spent on a state supreme court seat in the history of the nation. (35) Alabama is one of seven states that seat members of its judiciary through partisan elections. (36) As previously noted, however, it is the only state to have both partisan judicial elections and the judicial override.

Partisan judicial elections raise numerous concerns. (37) The major concern is that partisan elections pit two contrasting American values against one another: democracy and judicial independence. (38) Partisan elections, or the appearance of politically motivated justice, can foster fear that judges would rather further their political careers than properly administer justice. Some commentators have likened this hypothesis with electoral-incentive theory, which presupposes that a political candidate's primary goal is to stay in office making reelection his chief concern. (39) The logical extension of the electoral-incentive theory is that judges chosen through partisan elections will act like politicians, rather than judges.

In Alabama, politically-minded judges are particularly disturbing because the electorate clearly has a "tough on crime" mentality. A recent survey in The Birmingham News shows that over 70% of Alabamians support the death penalty. (40) William Bowen, a former judge on the Alabama Court of Criminal Appeals, has stated that the Alabama electorate would never elect a judge that was against the death penalty. (41) He also noted that an elected judge must either rule in a way that reflects the public's bias for the death penalty or risk being ousted from office. (42) "Very few judges," Mr. Bowen asserts, "can withstand that type of pressure." (43) In Alabama, then, appearing "tough on crime" becomes a political necessity. If being tough on crime is a political necessity, then how can a judge sentencing someone in a death penalty case not let these considerations enter their mind? Further, if consideration of the public's mentality on the death penalty or re-elections concerns do affect a judges sentencing decision, even in the slightest way, then surely, the practice of electing judges with unbridled sentencing discretion is unwise, if not unconstitutional.

The United States Supreme Court has addressed the impact that partisan judicial elections have on the justice system. While noting that the practice of judicial elections is unwise, the Court, in New York State Board of Elections v. Lopez Torres, stated that such elections were nevertheless constitutional because nothing in the Constitution "prohibit[s] legislatures from enacting stupid laws." (44) Lopez Torres arose in New York, a state where political parties nominate the state's supreme court judges. (45) The issue was "whether [the state's] electoral system violates the First Amendment rights of prospective party candidates." The plaintiffs in the action claimed that "party bosses," who would only nominate a candidate that fit their particular views, unconstitutionally excluded the plaintiffs from the election process. (46) Justice Scalia, writing for the majority, found that no violation of the First Amendment had occurred. (47) Candidly, he remarked that "[p]arty conventions, with their attendant 'smoke-filled rooms' and domination by party leaders, have long been an accepted manner of selecting party candidates." (48)

In a concurring opinion, Justice Stevens agreed with the majority's result, but had reservations about New York's candidate selection process. (49) He wanted the Court to recognize a fundamental difference between policy that, while constitutional, is nevertheless unwise. (50) Similarly, Justice Kennedy, in his own concurring opinion, stated:

When one considers that elections require candidates to conduct campaigns and to raise funds in a system designed to allow for competition among interest groups and political parties, the persisting question is whether that process is consistent with the perception and the reality of judicial independence and judicial excellence.

The rule of law, which is a foundation of freedom, presupposes a functioning judiciary respected for its independence, its professional attainments, and the absolute probity of its judges. And it may seem difficult to reconcile these aspirations with elections. (51)

Even in the face of these misgivings, the Court upheld an unfair and unwise partisan election process because it did not violate the First Amendment. (52)

The Court, in Caperton v. A.T. Massey Coal Co., Inc., recently addressed the possibility of bias and the impact of electing judges. (53) In Caperton, a West Virginia Supreme Court Justice received excessive campaign contributions from a coal company while running for election. (54) Receiving large amounts of money from businesses is not a rare occurrence in states that elect their judges. However, in Caperton, shortly after the election, a case involving the coal company came before the court. (55) The justice, despite the fact that he was elected in large part due to the money the company spent on his campaign, took part in the decision. (56) By a vote of 3-2, the West Virginia Supreme Court overturned the 50 million dollar verdict the trial court awarded against the coal company. (57) Caperton appealed to the Supreme Court claiming that the risk of bias in this case violated the Due Process Clause. (58)

The Court found that there was a "serious risk of actual bias" because the coal company "had a significant and disproportionate influence in placing the judge on the case by raising funds" to get him elected while the case was pending. (59) The possibility of bias was enough for the Court to conclude that the justice's participation in this case was unconstitutional. (60) The Court did note that it is a rare case where money contributions to judges would rise to an unconstitutional level. (61) In determining whether the bias rises to the level of unconstitutionality the Court "asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is 'likely' to be neutral, or whether there is an unconstitutional 'potential for bias." (62) Unfortunately, the Court did not address the constitutionality of partisan judicial elections in general.

In Alabama, it is not the "party bosses" or excessive contributions from a particular individual that keep pro-death penalty judges in office. It is the electorate. And electoral scheme may indeed be constitutional, it is unfair and unwise. (63) Justice requires that an impartial judiciary uphold the laws of the state. This fundamental purpose, however, becomes undermined when partisan judicial elections result in the selection of outspoken, "tough on crime" judges who act improperly in order to be reelected. Evidence shows that Alabama's elected judges impose higher sentences in election years. (64) Additionally, there is a definite statistical correlation between the use of the judicial override and election years. (65) Simply put, some judges in Alabama appear to bend to the public will rather than uphold the rule of law. (66) This is not to say, of course, that every judge in Alabama puts politics before justice. Most judges do uphold the rule of law regardless of politics. However, while the majority of judges in Alabama are good judges, one cannot ignore the fact that there is a real possibility that political considerations may play a role in some death penalty sentencing. Because of this possibility, reform is necessary. Sadly, however, the Alabama Legislature has yet to address the problem. (67)

III. SUPREME COURT DECISIONS ON JUDICIAL OVERRIDE

Two Supreme Court cases, Harris v. Alabama and Ring v. Arizona, provide the current framework to challenge the use of judicial override. These cases provide a starting point for an analysis of the use of judicial override in Alabama.

A. Harris v. Alabama

The state of Alabama convicted Louise Harris of capital murder for her participation in the murder of her husband. (68) Louise, her paramour Lorenzo McCarter, and two others conspired to kill Louise's husband to collect his life insurance benefits. (69) Louise did not fire the gun that killed Mr. Harris. (70) The prosecution, however, charged Louise with capital murder because the other defendants agreed to testify against her in exchange for lighter sentences. (71) The state convicted Louise of capital murder due, in large part, to the testimony of these co-conspirators. (72)

During the sentencing heating, the defense outlined several mitigating circumstances. For example, Louise had seven children and possessed good character. (73) Louise also worked three jobs, was an active member in a local church had no prior criminal history of any kind. (74) The jury agreed that the mitigation evidence presented by the defense excluded the possibility of the death penalty for Louise and by a vote of 7-5 recommended life in prison without the possibility for parole. (75) These mitigating circumstances, however, did not sway the judge who pointed out that Louise not only planned the murder of her husband and paid for the commission of the shooting, but also stood to gain the most from his death. (76) The judge found that "the one statutory aggravating circumstance found and considered far outweighs all of the non-statutory mitigating circumstances, and that the sentence ought to be death." (77) The sole statutory aggravated circumstance found by the trial court was that the murder was committed for pecuniary gain. (78) In the judge's mind, the fact that this murder was committed for profit far outweighed the jury's determination that a church-going, hard-working, mother of seven did not deserve death for the crime she committed. (79)

After exhausting her state appeals, the Supreme Court granted Louise certiorari to consider whether "Alabama's capital sentencing statute [was] unconstitutional because it [did] not specify the weight a judge must give the jury's recommendation and thus permit[ed] arbitrary imposition of the death penalty." (80) Louise did not attack the overall constitutionality of Alabama's death penalty law. Instead, she asserted that judges in Alabama should be required to give "great weight" to the jury's recommended sentence. (81) Further, she asserted that the jury's verdict should be more than "advisory" and that the jury should have a more important role during sentencing. (82) This avenue of attack on Alabama's judicial override was likely made because of the Court's 1984 decision in Spaziano v. Florida. (83)

In Spaziano, the Court upheld Florida's override statute. (84) Florida's law, however, is different from Alabama's. In Florida, the sentencing judge must give "great weight" to the jury's recommended sentence. (85) The Florida Supreme Court determined that the judge may only override the jury's sentence if the "facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ." (86) This standard, referred to as the Tedder standard, is substantially different from Alabama's practice of override where the judge must merely "consider" the jury's sentencing recommendation. (87) Alabama courts have refused to read the Tedder standard into Alabama's statute. (88)

The distinction between the Alabama and Florida sentencing guidelines is particularly important in Harris because it "forms the controversy ... whether the Eighth Amendment to the Constitution requires the sentencing judge to ascribe any particular weight to the verdict of an advisory jury." (89) The United States Supreme Court praised the Tedder standard calling it a "crucial protection" for a convicted defendant. (90) In Harris, however, the Court held that the Tedder standard, while favorable, was not a constitutional requirement. (91) The "hallmark of analysis," Justice O'Connor pointed out, is "not that the particular weight a State chooses to place upon the jury's advice, but whether the scheme adequately channels the sentencer's discretion so as to prevent arbitrary results." (92) Thus, the guideline is constitutional as long as the challenged sentencing guideline is not carried out in an arbitrary and capricious manner. (93)

The Supreme Court has struck down similar Eighth Amendment challenges in the past. In Franklin v. Lynaugh, the Court rejected the contention that "a specific method for balancing mitigating and aggravating factors in capital sentencing proceedings is constitutionally required." (94) Likewise, the Court does not require a state to give specific weight to any particular aggravating or mitigating factors. (95) In light of these decisions, it was easy for Justice O'Connor to conclude that a judge is not constitutionally required to give great weight to a jury's recommendation in Harris. (96) In fact, Justice O'Connor held that to do so would not only offend established jurisprudence, but would also "place within the constitutional ambit micromanagement tasks that properly rest with the state's discretion to administer its criminal justice system." (97) Ultimately, the Court in Harris rejected the Eighth Amendment attack and held that "[t]he Constitution permits the trial judge, acting alone, to impose a capital sentence ... [that is] not offended when a State further requires the sentencing judge to consider a jury's recommendation and trusts the judge to give it the proper weight." (98)

Justice Stevens dissented. (99) Even though he agreed with the majority's rationale in Spaziano because of the Tedder standard, he could not accept the Harris decision as proper. (100) Justice Stevens concluded that the "complete absence of standards to guide the judge's consideration of the jury's verdict renders the statute invalid under the Eighth Amendment." (101) Specifically, his primary objection to the majority's holding in Harris was the complete lack of standards for judges to use in overriding jury recommendations. (102) At the very least, he would require that the Court recognize the Tedder standard as a "constitutional imperative." (103) In fact, Justice Stevens declared that the Eighth Amendment requires that capital sentencing schemes "maintain strict standards to regularize and constrain the judge's discretion." (104) In conclusion, he notes:

The Court today casts a cloud over the legitimacy of our capital sentencing jurisprudence. The most credible justification for the death penalty is its expression of the community's outrage. To permit the State to execute a woman in spite of the community's considered judgment that she should not die is to sever the death penalty from its only legitimate mooring. The absence of any rudder on a judge's free-floating power to negate the community's will, in my judgment, renders Alabama's capital sentencing scheme fundamentally unfair and results in cruel and unusual punishment. (105)

It would appear, after reading Harris, that there is no constitutional right to a jury sentence in capital cases. Under Harris, judges seem to possess unbridled discretion to override jury recommendations. Seven years after that decision, however, the Supreme Court muddied the water with its decision in Ring v. Arizona. (106)

B. Ring v. Arizona

The state of Arizona tried and convicted Timothy Ring of felony murder. (107) Ring was originally charged with first-degree murder, armed robbery, and related charges. (108) The facts accepted at trial showed that Ring and two accomplices robbed an armored car and shot the driver of that car. (109) The only evidence presented at trial that tied Ring to the crime was the money stolen from the armored car, which police found in his home. (110) Because of the lack of evidence linking Ring to the death of the driver, the jury could not sustain a guilty verdict on the murder charge. (111) Thus, although he was guilty of felony murder, the court could not sentence him to death in Arizona unless it made additional findings during sentencing. (112) In order to sentence Ring to death, the court had to find that there was at least one aggravating circumstance and that "there [were] no mitigating circumstances sufficiently substantial to call for leniency." (113)

After Ring's trial, but before the sentencing hearing, one of his accomplices made an arrangement with the district attorney's office. (114) The accomplice agreed to testify against Ring at the sentencing hearing in exchange for a reduced sentence for himself. (115) At the sentencing hearing, the judge heard the accomplice testify that Ring was both the lead conspirator and the actual triggerman who killed the driver. (116) In light of this new evidence, which was not heard by the jury at trial, the judge entered his "special verdict" sentencing Ring to death. (117) Because Ring had been convicted of felony murder rather than premeditated murder, Ring could be sentenced to death only if he was either the actual murderer or a "major participant in the robbery that led to the killing and exhibited a reckless disregard or indifference to human life." (118)

The judge, relying on the accomplice's testimony given during the sentencing hearing, concluded that Ring pulled the trigger causing the death of the driver and that he was a "major participant" in the robbery. (119) The judge also found two statutory aggravating circumstances and one non-statutory mitigating circumstance. (120) The sole non-statutory mitigating circumstance did not, in the judge's view, call for leniency upon Ring; therefore, the judged sentenced him to death. (121) The Arizona Supreme Court, while hesitant in reaching its decision, upheld the death sentence against a Sixth Amendment attack from Ring. (122) The Supreme Court granted certiorari to resolve the contradiction between its decisions in Walton and Apprendi. (123)

In Walton v. U.S., the Supreme Court upheld Arizona's override statute under a Sixth Amendment attack. (124) The Court held that the "Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury." (125) Further, "the Constitution does not require that every finding of fact underlying a sentencing decision be made by a jury rather than by a judge." (126) In dissent, Justice Stevens noted that the underlying problem with the Court's decision in Walton was that the "Sixth Amendment requires a jury determination of the facts that must be established before the death penalty can be imposed." (127) In states with judicial override, such as Arizona, statutes allow for a judge to determine the facts giving rise to aggravating circumstances. Aggravators, therefore, "operate as statutory elements of capital murder ... because in their absence, [the death] sentence is unavailable." (128) He further dissents:

Since Duncan, this Court has held that a death sentence under Florida law may be imposed by a judge, rather than a jury, Spaziano v. Florida, and has held that a judge may make a factual determination that mandates imposition of a minimum sentence within the penalty range of certain noncapital offenses, McMillan v. Pennsylvania. By stretching the limits of sentencing determinations that are made by judges exposed to "the voice of higher authority," these decisions have encroached upon the fact-finding function that has so long been entrusted to the jury. Further distorting the sentencing function to encompass findings of factual elements necessary to establish a capital offense is the unhappy product of the gradual "increase and spread" of these precedents, "to the utter disuse of juries in questions of the most momentous concern." Even if the unfortunate decisions in Spaziano and McMillan fell just one step short of the stride the Court takes today, it is not too late to change our course and follow the wise and inspiring voice that spoke for the Court in Duncan v. Louisiana. (129)

Standing alone, the majority's reasoning in Walton would be enough to uphold Ring's death sentence. The Court, however, muddled the Walton ruling without overruling it in Apprendi v. New Jersey. (130) In Apprendi, a jury convicted the defendant of second-degree possession of a firearm. (131) The prosecutor, however, claimed that the crime had been motivated by racial animus. (132) He petitioned the judge for an enhanced sentence, and the judge ruled that the crime triggered the state's hate crime sentence enhancement. (133) The United States Supreme Court held that the defendant's sentence "violated his right to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." (134) The Court found that the hate crime sentence enhancement was a second offense and not a sentence enhancement at all. The Court noted, "[m]erely using the label 'sentence enhancement' to describe the [second act] surely does not prove a principled basis for treating the [two acts] differently." (135) The Court focused not on the form, but on the effect of the act. "If a [s]tate makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact--no matter how the [s]tate labels it--must be found by a jury beyond a reasonable doubt." (136)

The Court's reasoning in Apprendi is incompatible with the analysis used earlier in Walton. However, the contradiction failed to deter the Court from its rationale. The Court reasoned, "once a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penalty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed." (137) Further, "[t]he person who is charged with actions that expose him to the death penalty has an absolute entitlement to jury trial on all the elements of the charge." (138) While this may be true in some instances, it does not hold true in every situation. The Ring case provided the perfect example. In Arizona, when the jury convicts a person of a crime that does not carry the death sentence, the judge may then, sua sponte, find an aggravating circumstance that carries a death sentence. This is exactly what happened in Ring. The defendant, convicted of felony murder, was not eligible for the death penalty. (139) The jury had not convicted him of being the triggerman, nor had it found any aggravating circumstance that would give rise to the death penalty. (140) It was not until after the jury had been dismissed that evidence surfaced showing that the defendant was indeed the triggerman. (141) The judge, not the jury, ruled that the defendant was the killer and thus deserved the death penalty. (142) In effect, the "[d]efendant's death sentence required the judge's factual findings." (143)

Justice Ginsberg, writing for the majority in Ring, agreed that the reasoning of Walton could not be reconciled with or survive the reasoning of Apprendi. (144) The Court notes that the presence of aggravating circumstances that could give rise to the death sentence is better left for the jury rather than the judge. (145) Ring overruled Walton because it allowed a judge, acting alone, to find aggravating circumstances that gave rise to the imposition of the death penalty. (146) In effect, "[b]ecause Arizona's enumerated aggravating factors operate as 'the functional equivalent of an element of a greater offence,' the Sixth Amendment requires that they be found by a jury." (147)

This does not mean, however, that the judge cannot apply the death sentence acting alone or over the recommendation of the jury. Justice Scalia, in his concurrence, was quick to point out this distinction. (148) The decision in Ring merely states, according to Justice Scalia, that a jury must find the underlying facts of an aggravating circumstance beyond a reasonable doubt before the judge can use that circumstance to enhance a sentence or override a verdict. (149) Justice Scalia makes it clear that Ring, therefore, does not stand for the proposition that neither the Sixth nor the Eighth Amendment requires a jury sentence in capital cases. (150)

Justice Breyer, also concurring in the decision, came to the opposite conclusion as Justice Scalia. He concluded that the Eighth Amendment does in fact require a jury to decide the fate of capital defendants. (151) Justice Breyer begins by pointing out that the Court previously held that the Eighth Amendment does require that states give special procedural safeguards to capital defendants. (152) If states did not guarantee these safeguards, the Eighth Amendment prohibition on cruel and unusual punishment would be violated. (153) The belief that the Eighth Amendment requires a jury verdict in capital cases is nothing new. (154) There are two fundamental reasons why Justice Breyer reaches this conclusion. First, the main justification for the death penalty is retribution. (155) Second, the jury has a "comparative advantage in determining, in a particular case, whether capital punishment will serve that end." (156) Whether Justice Stevens' or Justice Scalia's reading of Ring is correct has yet to be determined. The states that still practice judicial override in capital cases or allow the judge alone to make capital-sentencing decisions have relied on Justice Scalia's reading, and, thus far, those decisions have not been successfully challenged.

IV. ARGUMENTS FOR OVERRIDE

The main argument articulated by proponents of the use of the judicial override is that the process is supposed to insulate defendants from prejudiced juries by "provid[ing] capital defendants with more, rather than less, judicial protection." (157) Override enthusiasts are also quick to point out that judicial override serves as a "check on runaway juries correcting verdicts by citizens inflamed by emotion ... [or] bent on vengeance." (158) Courts have long recognized that capital-sentencing juries create "special problems." (159) "Much of the information that is relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question." (160) In the past, the Court has pronounced a modicum of distrust when it came to jury sentencing of capital defendants. (161) Juries are, after all, inexperienced when it comes to sentencing criminal defendants and may not be able to separate their emotions from their rational responsibilities. (162) The risk of partial juries recommending death because of personal passions was thought to be real. (163)

Some have gone so far as to suggest that there is no constitutional role for the jury to play in the sentencing phase of a trial. (164) In fact, Alabama courts have held that the constitutional right to trial by jury in the Alabama Constitution, and by implication in the federal Constitution, "does not encompass assessing punishment in capital cases." (165) Others have gone so far as to say that the proposition that "jury participation was a constitutional requirement [is] more imagined than real." (166) Therefore, as the argument goes, how can one violate the constitution by overriding a jury's advisory sentence, if there is no constitutional right for the jury to be even involved in the sentencing process in the first place? This argument is essentially petitio principii. The so-called protections that the override offers criminal defendants in Alabama are illusory.

V. ATTACKING THE CONSTITUTIONALITY OF JUDICIAL OVERRIDE

One way opponents of the use of the override in Alabama can assail its use is through the courts. Bringing the fight to the courts is the most used and perhaps the easiest way capital defendants and their defenders can attack the override. This is because it would be rare to meet a convicted capital defendant who had the means to bring the fight to the legislature. Courts are likely the only battlefield for most. Courts, however, have not been favorable to constitutional attacks on the use of the override. In fact, the override has survived challenges under the Fifth, Sixth, and Eighth Amendments. (167) This does not mean, however, that using the

It is necessary, therefore, to outline the constitutional problems that concern the use of the override in Alabama. This section will show the constitutional objections that can be made against the use of the override as it is practiced in the state of Alabama.

A. Fifth Amendment Analysis

Perhaps the most obvious objection to the use of the judicial override, yet perplexingly the most ignored, is that it violates the double jeopardy clause of the Fifth Amendment. (168) The Fifth Amendment provides that no person shall be "subject for the same offense to be twice put in jeopardy of life or limb." (169) Justice Stevens, in his dissent in Harris v. Alabama, noted that the use of the override in Alabama might violate the Fifth Amendment to the Constitution. (170) Justice Stevens presents an unconstitutional hypothetical: if Alabama's sentencing scheme allowed for the imposition of the death penalty upon a verdict either from the judge or from the jury, then it would violate the Fifth Amendment's requirement that no person "be twice put in jeopardy of life or limb." (171) He argues that this is precisely the effect that the law in Alabama has. (172)

Indeed, a prosecutor has two avenues he may walk the defendant down to the death house door. The prosecutor can present evidence to and seek the imposition of the death penalty from the jury. If the jury agrees that the death penalty is appropriate in that case, then the jury recommends its sentence, and the prosecutor's job is done. (173) If, however, the jury recommends life, the prosecutor can then look to the judge for a sentence of death. The judge can conduct a sentencing hearing, admit new evidence on mitigation and aggravation, and then decide if he wishes to override the jury's recommendation. If he does, then the judge can impose the death sentence on the defendant. The defendant's life, in this hypothetical, surely has been placed in jeopardy twice: once by the jury and then again by the judge. Justice Stevens points out "[a] scheme that we assumed would 'provid[e] capital defendants with more, rather than less, judicial protection,' (174) has perversely devolved into a procedure that requires the defendant to stave off a death sentence at each of two de novo sentencing hearings." (175)

The majority in Harris did not respond to Justice Stevens' Fifth Amendment analysis. The Court, however, in Spaziano v. Florida did directly address a Fifth Amendment attack on the override. The Court quickly and emphatically rejected the Fifth Amendment argument that the override is unconstitutional. (176) The Court held that "there is no constitutional imperative that a jury have the responsibility of deciding whether the death penalty should be imposed...." (177) With little attempt to hash out a de tailed analysis, the Court concluded that override does not violate the Fifth Amendment because it already allows a judge, acting on his own, to impose the death penalty. (178)

This reasoning misses the argument. The fact that a judge, acting without any recommendation from a jury, can impose the death penalty has no bearing on a Fifth Amendment analysis. Double jeopardy is not a question in those cases because the judge's decision is the only one made. In cases where the override is used, however, there are two decisions. The jury makes one decision and the judge makes the other. The Court assumes that this is permissible because the jury's sentence recommendation is just that: a recommendation. (179) It is not binding on the court; therefore, there is no potential for double jeopardy. In practice, at least in Alabama, the effect of the judge's choice is, essentially, double jeopardy. Judges rarely ignore a jury's recommendation for death while often ignoring the recommendation for life. This has the practical effect of allowing prosecutors a chance to double dip in the pool of capital punishment. Prosecutors can ask the jury for death, and, if the jury recommends the death penalty, the judge will likely follow the recommendation. If, however, the jury recommends life, the prosecution can persuade the judge to impose the death penalty, and in many cases they succeed in doing just that. Because of the dual paths prosecutors can traverse in chasing the death penalty, the override, as Alabama practices it, violates the Fifth Amendment.

B. Sixth Amendment Analysis

A more common avenue for attacking the override is the Sixth Amendment. (180) The Sixth Amendment provides, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the [s]tate and district wherein the crime shall have been committed.. .." (181) As discussed in Section III (b) above, the Supreme Court has been the most willing to consider Sixth Amendment attacks to the constitutionality of judge's unbridled discretion in sentencing matters. The Court, however, has never gone as far to say that the override is unconstitutional. (182)

In Apprendi, the Court held that there is a constitutional right under the Sixth Amendment to "a jury determination that [a defendant] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." (183) In that case, a judge used a sentence enhancement that essentially amounted to another chargeable offense in order to give the defendant a longer sentence than the state allowed. (184) The Court explained, however, that simply using the term sentence enhancement does not change the fact that there was a second chargeable offense. (185) The Court focused not on the form but the effect of the act. "If a State makes an increase in a defendant's authorized punishment contingent on the Finding of a fact, that fact-no matter how the State labels it-must be found by a jury beyond a reasonable doubt." (186) Arizona's statutory sentence enhancement violated the Sixth Amendment because it allowed the judge to invade the province of the jury by becoming the fact-finder. While Apprendi concerned a noncapital offense, the Court soon extended the decision to capital crimes.

In Ring, the Court extended the rational used in Apprendi to capital cases. In Ring, the defendant was convicted of felony murder, which under Arizona law did not make him eligible for the death penalty. (187) The judge, however, was able to impose the death penalty by finding an aggravating circumstance that the jury had not considered. (188) The Court noted that the presence of aggravating circumstances that could give rise to the death sentence is better left for the jury to find, rather than the judge. In effect, "because Arizona's enumerated aggravating factors operate as 'the functional equivalent of an element of a greater offence,' the Sixth Amendment requires that they be found by a jury." (189) This does not mean, however, that the judge cannot apply the death sentence alone or over the recommendation of the jury.

Justice Scalia was eager to point out why. The Sixth Amendment does not require, according to Justice Scalia, that a jury impose the sentence of death, nor does it bar the judge from overriding the jury's recommendation. (190) The Sixth Amendment merely requires the jury to find the facts which the judge may then rely on to make the override decision. (191) Justice Scalia believes that so long as the jury finds the facts upon which the judge bases his decision, the Sixth Amendment is not violated. In effect, the judge can still override a jury's recommendation for life and impose death if the judge bases that decision upon facts considered and determined by the jury. In Alabama, then, a Sixth Amendment attack on the use of the override will not be successful unless it can be shown that the judge used new facts not considered by the jury.

Melvin Hodges challenged the Alabama override shortly after the United States Supreme Court handed down its decision in Ring. (192) A jury convicted Hodges of committing a murder during the commission of a robbery. (193) The jury, by an 8-4 vote, recommended that the judge sentence Hodges to life imprisonment without the possibility of parole. (194) The jury found that Hodges was guilty of robbery-murder beyond a reasonable doubt thus creating an aggravated circumstance. (195) The trial judge also found another aggravated circumstance--kidnapping, one that the jury did not even consider. (196) In the sentencing order, the judge made the additional finding, another one that the jury had not found, that the murder was "especially heinous, atrocious, or cruel as compared to other capital offenses." (197) Neither the jury nor the judge found any statutory mitigating circumstances. (198) The sentencing judge found that the aggravated circumstances outweighed the non-existent mitigation, ignored the jury's recommendation for life, and imposed the death sentence. (199)

The Alabama Court of Criminal Appeals affirmed the sentence. (200) Likewise, the Alabama Supreme Court held that the sentence complied with Ring because the jury found beyond a reasonable doubt one aggravating circumstance that justified the judge's decision to override the jury's recommendation for life. (201) The court noted that, "because the jury convicted him of murder made capital because it was committed during a first-degree robbery, the jury, not the trial court, determined the existence of at least one aggravating circumstance that exposed Hodges 'to a range of punishment that had as its maximum the death penalty.'" (202) Essentially, because the jury found at least one aggravating circumstance, the trial judge did not abuse his discretion by overriding the jury's recommended sentence to impose death. (203)

The court found that the fact that the judge used more aggravated circumstances than the jury found did not matter. The court explained that Ring did not stand for the proposition that every factual finding used in sentencing be made by the jury, rather the jury must only find beyond a reasonable doubt those facts that give rise to harsher punishment. (204) Because Alabama only requires one aggravated circumstance in order for a homicide to be made capital, Hodges was eligible for the death penalty based on the one aggravated circumstance that the jury did find. (205) The mere fact that the judge made additional findings in weighing the mitigation with the aggravation did not violate Ring or the Sixth Amendment. (206) The court rationalized that the aggravation in Hodges was not an element of the offense-, and therefore, was different from that in Ring. (207) The fundamental difference between the two cases is that Hodges would have been eligible for the death penalty without the judge's additional findings, whereas Ring would not have been.

The court fails to address the obvious issue in Hodges. The trial judge plays the important role of weighing the aggravating and mitigating circumstances to determine whether he should override the sentence. The Ring decision mandates that the jury must find any aggravating circumstance used to enhance a sentence beyond a reasonable doubt. Hodges highlights the problem. What if there is one aggravated circumstance, giving rise to the possibility of the death penalty, found by the jury, but the judge uses more than that particular circumstance to weigh the mitigating and aggravating circumstances in that case? In Alabama, as Hodges demonstrates, the judge can do as he pleases. The question remains, in the wake of Hodges, as to why the judge would find additional aggravating circumstances. If the one aggravated circumstance that the jury found is enough to override the jury's recommendation and impose the death penalty on the defendant, then why not just rely on that one? Was it not enough, in the judge's mind, to outweigh the mitigation presented by the defense? If it was not, then the judge's additional findings certainly violate the spirit of Ring because the judge would not have imposed the death sentence if he had not made additional findings. Unfortunately, the Supreme Court denied certiorari in Hodges, so it seems unlikely that the high Court will clarify these questions any time in the foreseeable future. Perhaps, another case will peak its interest. Until then, the hopes that were raised in the wake of Ring have been unrealized in Alabama. It seems that Ring, as well as the Sixth Amendment which it purports to protect, has little application in Alabama.

C. Eighth Amendment Analysis

The Eighth Amendment has provided much fodder for criminal defendants attacking the constitutionality of the override. (208) The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive frees imposed, nor cruel and unusual punishments inflicted." (209) The Supreme Court in Harris v. Alabama, however, effectively rang the death knell for these challenges. (210) Justice O'Connor, writing for the majority, said,
   The Constitution permits the trial judge, acting alone, to impose a
   capital sentence. It is thus not offended when a State further
   requires the sentencing judge to consider a jury's recommendation
   and trusts the judge to give it the proper weight. We ... hold that
   the Eighth Amendment does not require the State to define the
   weight the sentencing judge must accord an advisory jury verdict.
   (211)


Thus, an Eighth Amendment attack on the constitutionality of the override will likely fail. As long as the state can show that the override is not used in an arbitrary and capricious manner, the Eighth Amendment is not violated. Thus, it seems that door to attack the constitutionality of the override in Alabama is effectively closed.

VI. SUGGESTIONS FOR ALABAMA

Some opponents of the override call for a moratorium on the death penalty. (212) A moratorium would certainly quell any objections to the override. However, it seems that the death penalty is here to stay. In Alabama, there are few who believe in or advocate for a moratorium on the death penalty. There are seven other ways in which the state of Alabama could remedy the injustice created by the judicial override. Potential capital defendants could (1) rely on Alabama judges to exercise proper discretion; (2) ask the Alabama Supreme Court to hold the override process unconstitutional; (3) hope for the Supreme Court of the United States to hold overrides unconstitutional; (4) lobby for legislation that would allow judicial appointments instead of elections; (5) advocate for legislation or court rulings specifying guidelines judges must follow in order to override a jury verdict; (6) pray for the Alabama legislature to outlaw the practice all together; or (7) ameliorate the concerns raised by opponents of the override by making it a one-way street. Out of these many possibilities, the best option is for the Alabama legislature to prohibit the jury override.

Relying on Alabama judges to use proper discretion is the least plausible suggestion. First, it seems that some judges have refrained from using proper discretion in the past. On occasion, a few judges in Alabama, elected to protect the fights of individuals brought before them, have instead used those individuals for political gain. As long as judges have a stake in appearing to be tough on crime in order to increase their chances of reelection, they will have little interest in restraining themselves from using the over-ride. In fact, it appears that some judges in Alabama use their discretion not to protect capital defendants from prejudiced juries, as proponents of the override claim, but to further the public's prejudice against capital defendants. This reality makes relying on the discretion of Alabama judges an implausible solution to the problems presented by the judicial override.

Likewise, capital defendants should not anticipate the Alabama Supreme Court to act. The state's highest court has considered the issue on a number of occasions and validated the practice. (213) Given the current makeup of the court, it is unlikely that the court will change its course. If anything, the court is likely to strengthen the practice of judicial override by further upholding its use because just like the rest of judges in the state of Alabama, justices are elected to the Alabama Supreme Court. If any potential candidate for the Alabama Supreme Court were to announce his opposition to the use of the override in Alabama, his opponents would likely label him soft on crime. The effects of this label are difficult to overcome and would likely lead to that candidate's defeat at the ballot box.

Similarly, the United States Supreme Court is unlikely to heed the call of override reform. Just like the Alabama Supreme Court, the final arbiter of constitutional claims in the United States has upheld the practice of judicial override. The country's highest Court, however, has not gone quite as far as the state's highest court. In light of its decision handed down in Ring, the U.S. Supreme Court might still remain open to a challenge to Alabama's version of judicial override. The Court has not considered Alabama's override since it decided Ring but it may be willing to overturn Alabama's practice of the override today under a Fifth or Sixth Amendment attack.

The remaining three options reside with the Alabama legislature. Sadly, the legislature, eerily similar to the courts, has little incentive to change the practice. A large majority of Alabamians support the death penalty. (214) Therefore, it is no surprise that most of the state's elected officials favor the death penalty. There is little political motivation to change the current operational framework for the judicial override. The legislature could remedy the problem if the people decide it is time.

One option would be for the legislature to eliminate the override's political nature by amending the constitution to create judicial appointments rather than allow for partisan judicial elections. Judicial appointments would allow judges to operate with a much broader degree of discretion in their decision making processes. Judges would be insulated from political pressures as appointees rather than worrying about what their constituents think nearing election time. However, due in part to the large amounts of money elected judges raise on the campaign trail, this practice is unlikely to change. (215) In fact, recent efforts to reform the Alabama judiciary have failed. (216)

A second legislative remedy would be to set up specific guidelines by which a court would handle override cases. One major problem with the override process in Alabama is that there is a severe deficiency in the standards by which judges implement the override. Strict standards that require substantial deference to the jury's recommendation would alleviate some of the concerns opponents have to the override. While this would not cure all the ailments of the override process in Alabama, it would place judges on a tighter leash by reducing the vast amounts of deference currently afforded to their discretion.

Another option is for the Alabama legislature to completely eliminate the practice altogether. (217) This avenue of redressability would completely eradicate the problem. Eliminating the override is the only concrete way to ensure that Alabama orders appropriate punishment in capital cases. It is time to put the fate of capital defendants in the hands of the jury, where it belongs. As long as judges maintain power through a partisan political process, they should be removed from the process of sentencing in order to assure that trivial political considerations are not a part of deliberations concerning the life or death of a capital defendant.

The final and perhaps the most practical approach is to tailor the override provision of the Alabama Code in a way that would allow judges to only override jury verdicts recommending death. After all, the principal argument made by proponents of the override is that it protects criminal defendants from partial and overzealous juries. It makes sense then to put this proposition to the test. By limiting the override to instances where judges could only use it to protect criminal defendants, all would, in theory, be happy. Those in favor of its use should be open to this change because it accomplishes the ultimate goal underlying the policy they espouse. Those against the use of the override would likewise be happy with this result because it would eliminate the political nature of judges' decisions concerning life or death for criminal defendants. This path to change would also alleviate any constitutional objections to the use of the override because it would eliminate all avenues of attack. Indeed, the middle of the road approach seems reasonable. Perhaps, those in power in Alabama will listen to this call for change.

CONCLUSION

Philosopher Friedrich Nietzsche is credited with saying that the most fundamental form of human stupidity is forgetting what we were trying to do in the first place. The most fundamental purpose of the judicial system is to assure that justice is being served.

"Fairness and accuracy together form the foundation of the American criminal justice system. As our capital punishment system now stands, however, we fall short in protecting these bedrock principles. Our system cannot claim to provide due process or protect the innocent unless it provides a fair and accurate system for every person who faces the death penalty." (218)

Justice in Alabama is not being served when partisan judges are allowed to allocate punishment based on the current political climate. Fairness and accuracy cannot be the priority in Alabama as long as the practice of judicial override continues in its current form. It is important for Alabama to remember what it is trying to do. The Alabama judiciary and legislature should heed this call to action in order to insure that justice is served.

"A long habit of not thinking a thing wrong gives it the superficial appearance of being right, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason." (219)

(1) States with the death penalty are Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, and Wyoming. There has not been an execution in Kansas, New Hampshire, or New York since 1976. DEATH PENALTY INFO. CTR., FACTS ABOUT THE DEATH PENALTY (2007), available at http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited October 30, 2009).

(2) ALA. CODE [section] 13A-5-47(e) (West, Westlaw through Act 2009-838 of the 2009 First Special Session); DEE. CODE ANN. tit. 11 [section] 4209(d) (Westlaw through 76 Laws 2008, ch. 422); FLA. STAT. ANN. [section] 921.141 (West, through 2008 Reg. Sess.).

(3) Harris v. Alabama, 513 U.S. 504, 515-16 (1995) (Stevens, J., dissenting).

(4) See Spaziano v. Florida, 468 U.S. 447, 465 (1984) (holding that there is no constitutional guarantee that a court will adopt the jury sentence in capital cases).

(5) It is important to note that this is a complete reversal from the way that capital cases were handled in Alabama prior to the decision in Furman v. Georgia, 409 U.S. 902 (1972). Prior to Furman, the jury in Alabama had the unbridled discretion to determine whether or not a person deserved death for a crime. That is, the jury alone determined sentencing in capital cases. ALA. CODE [section] 14-424 (1940). This practice, however, was ruled unconstitutional in Furman. See also Hubbard v. Alabama, 274 So. 2d 298 (Ala. 1973) (holding that it is not within the jury's discretion to determine if a defendant deserves death for a murder); Swain v. Alabama, 274 So. 2d 305 (Ala. 1973) (holding that it is not within the jury's discretion to determine if a defendant deserves death for a rape).

(6) McMillian v. Alabama, 570 So. 2d 1285 (Ala. Crim. App. 1990).

(7) Id. at 1288-90.

(8) Id. at 1290-91.

(9) Id. Some attribute the jury's belief of the state's witnesses and disregard of the defense witnesses to racial prejudices. McMillian was black, and all of McMillian's witnesses disregarded by the jury were black. Equal Justice Initiative, Alabama's Exonerated, http://www.eji.org/eji/deathpenalty/wrongfulconvictions/McMillian (last visited April 27, 2009).

(10) McMillian, 570 So. 2d at 1287. The jury split with five voting in favor of the death penalty while seven voted for life imprisonment without the possibility of parole. Id.

(11) ALA. CODE [section] 13A-5-47(e) (1975).

(12) McMillian v. Alabama, 616 So. 2d 933 (Ala. Crim. App. 1993). Luckily, McMillian had the help of the Equal Justice Initiative. Bryan Stevenson worked the case after McMillian's conviction. Stevenson was able to prove that the state's witnesses lied on the stand and that the state had failed to turn over exculpatory evidence to the defense. After the Alabama Court of Criminal Appeals overturned his conviction, McMillian was released from death row after spending six years there for a crime he did not commit. Alabama's Exonerated, supra note 9.

(13) Act of Mar. 31, 1981, 1981 Ala. Acts 81-178 (codified by ALA. CODE [section] 13A-5-39 to 59 (1975)).

(14) Nathan A. Forrester, Judge Versus Jury: The Continuing Validity of Alabama's Capital Sentencing Regime After Ring v. Arizona, 54 ALA. L. REV. 1157, 1180 (Summer 2003).

(15) In Alabama, there are currently eighteen categories of first-degree murder that makes an offense capital. ALA. CODE [section] 13A-5-40(a) (1975).

(16) Id. [section] 13A-5-45(a).

(17) Id. [section] 13A-5-46(a).

(18) Id. [section] 13A-5-45(c). The Alabama Code codifies ten aggravated circumstances which can enhance a sentence. Circumstances are statutorily aggravated if: (1) the offence was committed by a person in prison; (2) the defendant has committed another capital of lense; (3) "the defendant knowingly created a great risk of death to many persons;" (4) the offense was committed during the commission of rape, robbery, burglary, or kidnapping; (5) the crime was done in an attempt to escape; (6) the act was done for financial gain; (7) the crime was committed with the purpose of disrupting the government; (8) the act was "especially heinous, atrocious, or cruel compared to other capital offenses;" (9) two or more people were killed; or (10) the offense was a part of a serial killing. Id. [section] 13A-5-49. The mitigation circumstances are prescribed by title 13A, section 5-51 of the Alabama Code.

(19) ALA. CODE [section] 13A-5-46(d) (1975). The jury has three options upon which to deliberate: "(1) If the jury determines that no aggravating circumstances as defined in Section 13A5-49 exist, it shall return an advisory verdict recommending to the trial court that the penalty be life imprisonment without parole; (2) If the jury determines that one or more aggravating circumstances as defined in Section 13A-5-49 exist but do not outweigh the mitigating circumstances, it shall return an advisory verdict recommending to the trial court that the penalty be life imprisonment without parole; (3) If the jury determines that one or more aggravating circumstances as defined in Section 13A-5-49 exist and that they outweigh the mitigating circumstances, if any, it shall return an advisory verdict recommending to the trial court that the penalty be death." Id. [section] 13A-5-46(e)(1)-(3).

(20) Id. [section] 13A-5-46(f).

(21) Id. [section] 13A-5-47(a)-(e).

(22) ALA. CODE [section] 13A-5-46(e)(3) (1975).

(23) Id. [section] 13A-5-47(e).

(24) Id.

(25) Steven B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U.L. REV. 759, 793 (1995) (by 1995 judges in Alabama had only used the override to favor life in five cases; judges, however, had used the override to favor death in 47 cases).

(26) Harris v. Alabama, 513 U.S. 504, 521 (1995) (quoting Dobbert v. Florida, 432 U.S. 282, 295 (1977)).

(27) There are currently 203 people on death row in Alabama. Alabama Department of Corrections, Alabama Inmates Currently on Death Row, available at http://www.doe.state.al.us/deathrow.asp (last visited April 27, 2009).

(28) Equal Justice Initiative, Judicial Override in Alabama, available at http://www.eji.org/eji/files/03.19.08%20Judicial%20Override%20Fact%20 Sheet_0.pdf (last visited April 27, 2009).

(29) Id.

(30) Id.

(31) Id. See also Gregg v. Georgia, 428 U.S. 153 (1976) (holding a Georgia statute that called for the death penalty constitutional for specified crimes). The Court provided a framework to determine if the death sentence was appropriate. The first stage would determine a defendant's guilt or innocence, and the second would determine the appropriate sentence by weighing the aggravating and mitigating circumstances. Id.

(32) Judicial Override in Alabama, supra note 28, at 1.

(33) ALA. CONST. amend. 328, [section] 6.13; ALA. CODE [section] [section] 12-2-1, 12-3-3, 12-3-4 (1986).

(34) Russell Hubbard, Birmingham's Tommy Wells, ABA President, says Judicial Elections Should End, Birmingham News, March 19, 2009, available at http://blog.al.com/businessnews/2009/03/birminghams_tommy_wells_aba_pr.html (last visited April 27, 2009).

(35) Id. The national average spent on state supreme court elections is just over $890,000. This is a dramatic increase over the past ten years. In the 1990s, candidates for a state's highest court were spending on average around $320,000. See Joanna M. Sheppard, Money, Politics, and Impartial Justice, 58 DUKE L.J. 623, 640 (2009).

(36) Joanna M. Sheppard, Money, Politics, and Impartial Justice, 58 DUKE L.J. 623, 638 n.81 (2009) (listing Alabama, Arkansas, Louisiana, North Carolina, Pennsylvania, Texas, and West Virginia as the only states that still practice partisan judicial elections).

(37) Paul Brace and Brent D. Boyea, State Public Opinion, the Death Penalty, and the Practice of Electing Judges, 52 AM. J. POL. SCI. 360 (2008), available at http://eji.org/eji/files/07.24.08%20State%20Pub%20Op,%20DP,%20and%20 Practice%2 0of%20Electing%20Judges.pdf. Examples of such concerns include judges ruling in favor of interests that donated to their campaign or judges showing bias in cases concerning political campaign finance regulations.

(38) Id. at n. 1 (noting that democracy is a "political system that requires unimpaired opportunities for all full citizens '(1) to formulate their preferences, (2) to signify their preferences to their fellow citizens and the government by individual and collective action, and (3) to have their preferences weighed equally in the conduct of government.'" This is in direct conflict with the idea of an impartial judiciary which is supposed to eliminate outside influence by requiring that judges follow the letter of the law without fear of retaliation) (citations omitted).

(39) Sheppard, supra note 36, at 646; see also DAVID MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 11-78 (Yale Univ. Press) (1975).

(40) Project Hope to Abolish the Death Penalty, Alabama 2005 Poll Data, http://virgilturtle.com/phadp/index.php?option=com_content&task=view &id=36&Itemid=47 (last visited Sept. 11, 2009).

(41) William M. Bowen, Jr., A Former Alabama Appellate Judge's Perspective on the Mitigation Function in Capital Cases, 36 HOFSTRA L. REV. 805, 807 (2008).

(42) Id. at 807.

(43) Id.

(44) N.Y. State Bd. of Elections v. Lopez Tortes, 128 S. Ct. 791, 801 (2008) (Stevens, J., concurring).

(45) Id. at 795.

(46) Id. at 799.

(47) Id. at 800.

(48) Id. at 799 (citations omitted).

(49) Id. at 801 (Stevens, J., concurring).

(50) N.Y. State Bd. of Elections v. Lopez Torres, 128 S. Ct. 791, 801 (2008) (Stevens, J., concurring).

(51) Id.

(52) Id. at 803 (Kennedy, J., concurring).

(53) Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2252 (2009).

(54) Id. at 2254 (Caperton received over three million dollars from the coal company which was more than the combined donations received by the entire campaign).

(55) Id. at 2258.

(56) Id.

(57) Id.

(58) Id. at 2259.

(59) Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252, 2263-64 (2009).

(60) Id. at 2265.

(61) Id. at 2264 (noting that this was an "exceptional" case with rare facts).

(62) Id. at 2262.

(63) It could be argued that the override is unconstitutional because of the possibility of bias. Because the Alabama electorate is overwhelmingly pro-death penalty, judges in Alabama are less likely to be "neutral." Therefore, there is a potential for bias that may render the combined practice of the override and elections in Alabama unconstitutional.

(64) See Brace, supra note 37, at 361.

(65) Ronald J. Tabak, Politics and the Death Penalty: Can Rational Discourse and Due Process Survive the Perceived Political Pressure?, 21 FORDHAM URB. L. J. 239, 256 (1994) (describing how important it is for Alabama politicians, including judges, to support the death penalty). The article also quotes Bryan Stevenson, Director of the Equal Justice Initiative, who states that a "mini-multiple regression analysis of how the death penalty is applied and how override is applied" shows a "statistically significant correlation between judicial override and election years in most of the counties where these overrides take place." Id. at 255-56.

(66) Brace, supra note 37, at 360.

(67) Editorial, It's Still a Judicial Pig, MOBILE PRESS REGISTER, Mar. 29, 2009 (showing that judicial reform efforts in Alabama failed during the 2009 Legislative Session), available at http://www.al.com/opinion/pressregister/editorials.ssf?/base/opinion/ 123831812254800.xml&coll=3 (last visited April 27, 2009).

(68) Harris v. Alabama, 513 U.S. 504, 507 (1995).

(69) Id. at 507.

(70) Id. Michael Sockwell and Alex Hood were the other two conspirators. Sockwell, Hood, and McCarter waited for Mr. Harris as he left work. Sockwell hid next to a stop sign exiting Mr. Harris' workplace while the other two hid in a car nearby. While Mr. Harris stopped at the stop sign, Sockwell approached the car and shot him with a shotgun. Hood and Sockwell were to gain a mere 100 dollars for their participation in this murder.

(71) Id.

(72) Id.

(73) Id.

(74) Harris v. Alabama, 513 U.S. 504, 507 (1995).

(75) Id.

(76) Id. at 507-08.

(77) Id. at 508 (emphasis added). The Code of Alabama provides that "[in] deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict." ALA. CODE [section] 13A-5-47(e) (1975) (emphasis added).

(78) Harris, 513 U.S. at 507.

(79) The trial court's death sentence was upheld on appeal to the Alabama Court of Criminal Appeals. Harris v. Alabama, 632 So. 2d 503 (1992). The Alabama Supreme Court also upheld the sentence. Harris v. Alabama, 632 So. 2d 543 (1993).

(80) Harris v. Alabama, 513 U.S. 504, 504 (1995).

(81) Id. at 511.

(82) Id. at 512.

(83) 468 U.S 447, 457-67 (1984) (holding Florida's death penalty statute constitutional).

(84) Id.

(85) FLA. STAT. [section] 921.141(3) (1985).

(86) Tedder v. Florida, 322 So. 2d 908, 910 (Fla. 1975).

(87) Exparte Jones, 456 So. 2d 380, 381 (Ala. 1984).

(88) Id.

(89) Harris v. Alabama, 513 U.S. 504, 509 (1995).

(90) Dobbert v. Florida, 432 U.S. 282, 295 (1977); see also Spaziano v. Florida, 468 U.S. 447, 465 (1984) (stating that the Florida Supreme Court "takes the [Tedder] standard seriously and has not hesitated to reverse a trial court if it derogates the jury's role.").

(91) Harris v. Alabama, 513 U.S. 504, 511 (1995).

(92) Id.; see also Proffitt v. Florida, 428 U.S 242, 252-53 (1976) (holding that the standard in determining the constitutionality of a state's death penalty statute is to determine whether the sentence is imposed in an arbitrary and capricious manner).

(93) Harris, 513 U.S. at 512.

(94) 487 U.S. 164, 179 (1988).

(95) See e.g. Blystone v. Pennsylvania, 494 U.S. 299, 306-07 (1990); Eddings v. Oklahoma, 455 U.S. 104, 113-15 (1982); Proffitt, 428 U.S. at 257-58.

(96) Harris v. Alabama, 513 U.S. 504, 512 (1995).

(97) Id.

(98) Id. at 515 (Stevens, J., dissenting).

(99) Id.

(100) Id.

(101) Id. at 515-16.

(102) Harris v. Alabama, 513 U.S. 504, 524 (1995) (Stevens, J., dissenting).

(103) Id. at 525.

(104) Id. at 524.

(105) Id. at 526.

(106) Ring v. Arizona, 536 U.S. 584, 591 (2002).

(107) Id.

(108) Id. at 589.

(109) Id.

(110) Id. at 590.

(111) Ring v. Arizona, 536 U.S. 584, 591-92 (2002).

(112) Id. at 592. Under Arizona law, the judge who presided at the trial is required to conduct a sentencing hearing in order to "determine the existence or non-existence of [certain enumerated] circumstances ... for the purpose of determining the sentence to be imposed." This hearing is to be conducted in front of the court alone, and it shall make all factual findings which may he required. ARIZ. REV. STAT. ANN. [section] 13-703(C) (West Supp. 2001).

(113) ARIZ. REV. STAT. ANN. [section] 13-703(f) (West Supp. 2001). Arizona law provides for ten aggravating circumstances: "1. The defendant has been convicted of another offense in the United States for which under Arizona law a sentence of life imprisonment or death was imposable; 2. The defendant was previously convicted of a serious offense, whether preparatory or completed; 3. In the commission of the offense the defendant knowingly created a grave risk of death to another person or persons in addition to the person murdered during the commission of the offense; 4. The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value; 5. The defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value; 6. The defendant committed the offense in an especially heinous, cruel or depraved manner; 7. The defendant committed the offense while in the custody of or on authorized or unauthorized release from the state department of corrections, a law enforcement agency or a county or city jail; 8. The defendant has been convicted of one or more other homicides, as defined in [section] 13-1101, which were committed during the commission of the offense; 9. The defendant was an adult at the time the offense was committed or was tried as an adult and the murdered person was under fifteen years of age or was seventy years of age or older; 10. The murdered person was an on duty peace officer who was killed in the course of performing his official duties and the defendant knew, or should have known, that the murdered person was a peace officer." ARIZ. REV. STAT. ANN. [section] 13-703(g) (West Supp. 2001).

(114) Ring v. Arizona, 536 U.S. 584, 593 (2002).

(115) Id.

(116) Id.

(117) Id. at 594.

(118) Id.

(119) Ring v. Arizona, 536 U.S. 584, 594 (2002).

(120) Id. at 594-95. Specifically, the judge found that the crime resulted in pecuniary gain for the defendant, and it was especially heinous or atrocious as described by Arizona law. The mitigating circumstance cited by the judge was the fact Ring had a virtually nonexistent prior criminal record.

(121) Id.

(122) Id. at 595-97. The court noted that it had concerns as to the apparent inconsistencies in Supreme Court precedent in related cases. Specifically, the court noted that it had to apply Walton v. Arizona because of the Supremacy Clause.

(123) Id. at 596-97.

(124) 497 U.S. 639 (1990).

(125) Id. at 648 (citations omitted).

(126) Id. at 639.; see also Clemons v. Mississippi, 494 U.S. 738, 745 (1990); Hildwin v. Florida, 490 U.S. 638 (1989).

(127) Walton, 497 U.S. at 709 (Stevens, J., dissenting).

(128) Id.

(129) Id. at 713-14 (citations omitted).

(130) 530 U.S. 466 (2000).

(131) Id. at 469.

(132) Id. at 469-70.

(133) Id. The judge sentenced the defendant to twelve years, which was two years in excess of the maximum proscribed for the crime of which the jury had convicted him. Because of the sentencing enhancement, however, the defendant was subject to the harsher punishment.

(134) Id. at 477.

(135) Id.

(136) Apprendi v. New Jersey, 530 U.S. 466, 482-83 (2000).

(137) Id. at 497 (citing Almendarez-Torres v. U.S., 523 U.S. 224, 257 n.2 (1998) (Scalia, J., dissenting) (emphasis omitted)).

(138) Apprendi, 523 U.S. at 497 (citing Almendarez-Torres v. U.S., 523 U.S. 224, 257 n.2 (Scalia, J., dissenting)).

(139) Ring v. Arizona, 536 U.S. 584, 593 (2002).

(140) Id. at 591-92.

(141) Id. at 594.

(142) Id.

(143) Id. at 603 (citation omitted).

(144) Id.

(145) Ring v. Arizona, 536 U.S. 584, 607-08 (2002). In fact the Court notes that of the 39 states that have the death penalty, 29 leave the ultimate decision to the jury. See ARK. CODE ANN. [section] 5-4-602 (1993); CAL. PENAL CODE ANN. [section] 190.3 (West 1999); CONN. GEN. STAT. [section] 53a-46a (2001); GA. CODE ANN. [section] 17-10-31.1 (Supp. 1996); ILL. COMP. STAT. ANN., ch. 720, [section] 5/9-1(d) (West 1993); KAN. STAT. ANN. [section] 21-4624(b) (1995); KY. REV. STAT. ANN. [section] 532.025(1)(b) (1993); LA. CODE CRIM. PROC. ANN., art. [section] 905.1 (West 1997); MD. ANN. CODE, Art. 27, [section] 413(b) (1996); MISS. CODE ANN. [section] 99-19-101 (1973-2000); MO. REV. STAT. [section][section] 565.030, 565.032 (1999 and Supp. 2002); NEV. REV. STAT. ANN. [section] 175.552 (Michie 2001); N.H. REV. STAT. ANN. [section] 630:5(11) (1996); N.J. STAT. ANN. [section] 2C:11-3(c) (Supp. 2001); N.M. STAT. ANN. [section] 31-20A-1 (2000); N.Y. CRIM. PROC. LAW [section] 400.27 (McKinney Supp. 2001-2002); N.C. GEN. STAT. [section] 15A-2000 (1999); OHIO REV. CODE ANN. [section] 2929.03 (West 1997); OKLA. STAT., tit. 21, [section] 701.10(A) (Supp. 2001); ORE. REV. STAT. ANN. [section] 163.150 (1997); 42 PA. CONS. STAT. [section] 9711 (Supp. 2001); S.C. CODE ANN. [section] 16-3-20(B) (1985); S.D. CODIFIED LAWS [section] 23A-27A-2 (1998); TENN. CODE ANN. [section] 39-13-204 (Supp. 2000); TEX. CODE CRIM. PROC. ANN., Art. 37.071 (Vernon Supp. 2001); UTAH CODE ANN. [section] 76-3-207 (Supp. 2001); VA. CODE ANN. [section] 19.2-264.3 (2000); WASH. REV. CODE [section] 10.95.050 (1990); WYO. STAT. ANN. [section] 6-2-102 (2001). Other than Arizona, four States commit both capital sentencing fact-finding and sentencing decisions to the judges alone. See COLO. REV. STAT. [section] 16-11-103 (2001) (three-judge panel); IDAHO CODE [section] 19-2515 (Supp. 2001); MONT. CODE ANN. [section] 46-18-301 (1997); NEB. REV. STAT. [section] 29-2520 (1995). Four States have hybrid systems, where the jury gives an advisory verdict but the judge makes the ultimate sentencing decisions. These are the override states. See ALA. CODE [section][section] 13A-5-46, 13A-5-47 (1994); DEL. CODE ANN., tit. 11, [section] 4209 (1995); FLA. STAT. ANN. [section] 921.141 (West 2001); IND. CODE ANN. [section] 35-50-2-9 (Supp. 2001).

(146) Ring, 536 U.S. at 609.

(147) Id. (quoting Apprendi, 530 U.S. at 494).

(148) Id. at 612-13 (Scalia, J., concurring).

(149) Id.

(150) Id.

(151) Id. at 614 (Breyer, J., concurring).

(152) Ring v. Arizona, 536 U.S. 584, 614(2002); see Gregg v. Georgia, 428 U.S. 153 (1976).

(153) Ring, 536 U.S. at 614 (Breyer, J., concurring); see Furman v. Georgia, 408 U.S. 238 (1972).

(154) See e.g. Harris v. Alabama, 513 U.S. 504 (1995) (Stevens, J., dissenting); Spaziano v. Florida, 468 U.S. 447, 467-90 (1984) (Stevens, J., concurring); Gregg, 428 U.S. 153 (joint opinion of Stewart, Powell, and Stevens, JJ.).

(155) Ring, 536 U.S. at 614.

(156) Id.

(157) Harris v. Alabama, 513 U.S. 504, 521 (1995) (quoting Dobbert v. Florida, 432 U.S. 282, 295 (1977)).

(158) Steve Mills, In Death Cases, Jurors Don't Always Prevail, Chi. Trib., Dee. 28, 2000, at 1N.

(159) Gregg v. Georgia, 428 U.S. 153, 190 (1976).

(160) Id.

(161) Id. at 206-07.

(162) Id. at 192. See also Nathan A. Forrester, Judge Versus Jury: The Continuing Validity of Alabama's Capital Sentencing Regime After Ring v. Arizona, 54 ALA. L. REV. 1157, 1171-72 (2003).

(163) Forrester, supra note 162, at 1172.

(164) Beck v. Alabama, 396 So. 2d 645, 659 (Ala. 1980).

(165) See Ex parte Apicella, 809 So. 2d 865, 873 (Ala. 2001); Ex parte Giles, 632 So. 2d 577, 583 (Ala. 1993).

(166) Forrester, supra note 162, at 1180.

(167) See Spaziano v. Florida, 468 U.S. 447 (1984); Ring, 536 U.S. at 584; Harris v. Alabama, 513 U.S. 504 (1995). Some have recognized that there may be Fourteenth courts to question the constitutionality of the override is a futile exercise. Indeed, there may be a slim ray of hope for capital defendants. Amendment problems with the override. However, courts have given short shrift to this line of arguments, rarely giving it any discussion.

(168) The Fifth Amendment Double Jeopardy Clause was incorporated to the states through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 794 (1969).

(169) U.S. CONST. amend. V.

(170) 513 U.S. 504, 520 (1995) (Stevens, J., dissenting).

(171) Id.

(172) Id.

(173) Proponents of the override will be quick to point out that the judge does not have to take the jury's recommendation that the death sentence should be used in any given case. As Justice Stevens points out, however, in nearly every case that the jury recommends death, the judge agrees. Id. at 520-21.

(174) Dobbert v. Florida, 432 U.S. 282, 295 (1977) (giving the main justification for the use of the override).

(175) Harris v. Alabama, 513 U.S. 504, 521 (1995) (Stevens, J., dissenting).

(176) Spaziano v. Florida, 468 U.S. 447, 465 (1984).

(177) Id.

(178) "If a judge may be vested with sole responsibility for imposing the penalty, then there is nothing constitutionally wrong with the judge's exercising that responsibility after receiving the advice of the jury. The advice does not become a judgment simply because it comes from the jury." Id.

(179) Id at 465-66.

(180) The Sixth Amendment right to a jury trial was incorporated to the states through the Fourteenth Amendment in Duncan v. Louisiana, 391 U.S. 145, 149 (1968).

(181) U.S. CONST. amend. VI.

(182) Apprendi v. New Jersey, 530 U.S. 466, 498-99 (2000). (Scalia, J., concurring).

(183) Id. at 477 (citation omitted).

(184) Id. at 471.

(185) Id. at 476.

(186) Ring v. Arizona, 536 U.S. 584, 585-86 (2002).

(187) Id. at 592.

(188) Id. at 594.

(189) Id. at 609 (quoting Apprendi, 530 U.S. at 494).

(190) Id. at 611-13 (Scalia, J., concurring).

(191) Id. at 612 (Scalia, J., concurring).

(192) Exparte Hodges, 856 So. 2d 936 (Ala. 2003), cert denied, 540 U.S. 986 (2003).

(193) Id. at 938.

(194) Id.

(195) Id. at 940.

(196) Hodges v. State, 856 So. 2d 875, 890 (Ala. Crim. App. 2001).

(197) Ex parte Hodges, 856 So. 2d 936, 940 (Ala. 2003); see also ALA. CODE [section] 13A-5-49(8).

(198) Hodges v. State, 856 So. 2d 875, 932 (Ala. Crim. App. 2001). The trial judge apparently gave little credence to Hodges' mother's testimony that he was beaten growing up and that Hodges had a difficult life. The judge also refused to view Hodge's alcoholism as a mitigating factor. In the state of Alabama, the determination of the weight to be given to any non-statutory mitigating circumstance resides within the sentencing judge's sole discretion. See Boyd v. Alabama, 715 So. 2d 825, 840 (Ala. Crim. App. 1997).

(199) Ex parte Hodges, 856 So. 2d 936, 942 (Ala. 2003). The judge, in his sentencing order explained, "[i]t is the opinion of this Court that, given the facts of this case, that the advisory verdict of the jury should not be followed. This was an especially cruel and torturous murder.... While this Court has given great deference to the verdict and sentence recommendations of this jury, still the depravity of [Hodges], the callousness of his acts toward the victim (as recounted above), and comparing his acts with similar cases, it is the opinion of this Court that a greater measurement of punishment is proper than life [imprisonment] without parole." Id.

(200) Hodges v. State, 856 So. 2d 875, 875 (Ala. Crim. App. 2001).

(201) Ex parte Hodges, 856 So. 2d 936, 943 (Ala. 2003). Under Alabama law, in order to be eligible for the death penalty there must be at least one aggravating circumstance proved. ALA. CODE 1975 [section] 13A-5-45(f).

(202) Ex parte Hodges, 856 So. 2d 936, 943 (Ala. 2003) (citations omitted).

(203) Id.

(204) Id. at 944.

(205) Id.

(206) Id. "The trial court's subsequent determination that the murders were especially heinous, atrocious, or cruel is a factor that has application only in weighing the mitigating circumstances and the aggravating circumstances, a process that we held earlier is not an 'element' of the offense." Id. (citation omitted).

(207) Ex parte Hodges, 856 So. 2d 936, 944 (Ala. 2003).

(208) The Eighth Amendment protection against cruel and unusual punishment applies to the states because it has been incorporated through the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 667 (1962).

(209) U.S. CONST. amend. VIII.

(210) 513 U.S. 504, 515 (1995).

(211) Id. at 512-15.

(212) See Arise Citizen's Policy Project, Unequal Justice: Alabama's Flawed Death Penalty 2 (Oct. 5, 2005).

(213) Ex parte Jackson, 836 So. 2d 979 (Ala. 2002) (holding the override constitutional); Apicella v. State, 809 So. 2d 856 (Ala. 2000) (holding that Alabama's override provision does not violate the Sixth Amendment); Ex parte Land, 678 So. 2d 224 (Ala. 1996) (upholding the use of the override); Ex parte Rieber, 663 So. 2d 999 (Ala. 1995) (recognizing that the jury override, as practiced in Alabama, is constitutional); Ex parte Tarver, 553 So. 2d 633 (1989) (holding that the override is not an arbitrary or discriminative way of imposing the death penalty); Ex parte Hays, 518 So. 2d 768 (Ala. 1988) (holding that the judge could override a jury's recommendation because the recommendations is not binding on the trial judge); Ex parte Harrell, 470 So. 2d 1309 (Ala. 1985) (upholding the override and dismissing a 5th, 6th, 8th, and 14th Amendment attack on the process); Ex parte Jones, 456 So. 2d 380 (Ala. 1984) (holding that it is within the trial judge's discretion to override a jury sentence from life to death).

(214) A poll from 2005 showed that 71% of Alabamians still support the death penalty. Still, 57% said they would suspend the use of the death penalty until it could be assured that it was being administered fairly and not arbitrarily. In fact, almost 80% of those polled in Alabama believe that there has been an innocent person convicted and executed in the state. Because of innocence issues, 96% of Alabamians support the use of DNA technology in capital cases. Death Penalty Survey in Alabama, Capital Survey Research Center, Alabama Education Association (2005), available at http://virgilturtle.com/phadp/index2.php?option=com_content&do_pdf=1&id=36 (last visited October 30, 2009).

(215) One need not look further back than the most recent Alabama Supreme Court election to find an example of an exuberant amount of money changing hands in order to be elected to the state's highest court. The two candidates, running in 2008, raised over 4 million dollars for their respective campaigns. This amount made the Alabama election one of the most expensive judicial elections in the entire country. Phillip Rawls, Candidates in Alabama Supreme Court Race top $4M, Chi. Trib., Jan. 30, 2009, at 1, available at http://archives.chicagotribune.com/2009/jan/30/local/ chi-ap-al-expensiverace (last visited October 30, 2009).

(216) A recent bill that would have taken partisan politics out of Alabama's judicial elections failed to get out of committee in the Alabama House. This bill would have also set limits on the amount of money that could be raised for judicial elections. Bob Johnson, Judicial Election Bills Defeated, Montgomery Advertiser (March 26, 2009), available at http://www.votelaw.com/blog/archives/2009_03.html (last visited October 30, 2009).

(217) This is the remedy suggested by the American Bar Association. Alabama should strengthen the jury's role in capital sentencing by eliminating 'judge override,' the rule that allows judges to disregard juries' sentencing recommendations. Judge override diminishes jurors' sense of responsibility for the enormous life and death decision they must make, and results in jurors paying less attention to jury instructions and deliberating for less time. All of this can result in unfairness and inaccuracy. In addition to eliminating judge override, Alabama should require juries to be unanimous in recommending a death sentence. Bottom line: Alabama should respect the ability of juries to 'get it right.'" ABA Report, Alabama's Death Penalty System Identification of Problems and Recommendations for Reform, available at www.abanet.org/moratorium/assessmentproject/alabama/factsheet.doc; see also ABA Report, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Alabama Death Penalty Assessment Report 12 (June 2006), available at http://www.abanet.org/moratorium/assessmentproject/alabama/report.pdf.

(218) Id at i.

(219) THOMAS PAINE, COMMON SENSE 1 (Forgotten Books 2000) (1776).

Clayton Tartt J.D. Candidate, May 2010, Faulkner University Thomas Goode Jones School of Law.
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