Judicial Override In Death Penalty Cases: Another Reason Why Electing Judges Is A Bad Idea

Sherrilyn Ifill has an interesting piece up on the Equal Justice Initiative's new report on the death penalty in Alabama. Unlike other states, Alabama has a policy of judicial override which allows judges to impose the death penalty in cases where the jury has decided on a sentence of life in prison. Delaware and Florida also allow this, but they have restrictions that make overrides much rarer whereas Alabama has none at all. Ifill writes that the report is a "devastating indictment of judicial elections" and that "if judges are condemning convicts to death and overriding the judgment of the jury to improve their chances for re-election, we are looking at a system that can no longer rightly use the word "justice" to describe itself."

There are two key findings from the study I want to highlight. The first is that judicial elections impact the frequency of judicial overrides in death penalty cases:

Override rates fluctuate wildly from year to year. The proportion of death sentences imposed by override is elevated in election years. In 2008, 30% of new death sentences were imposed by judge override, compared to 7% in 1997, a non-election year. In some years, half of all death sentences imposed in Alabama have been the result of override.

The second is that judicial override is more frequently used to impose the death penalty in cases where the victims are white:

There is evidence that elected judges override jury life verdicts in cases involving white victims much more frequently than in cases involving victims who are black. Seventy-five percent of all death sentences imposed by override involve white victims, even though less than 35% of all homicide victims in Alabama are white.

This is in fact true of the death penalty in general--the more salient racial variable in how the death penalty is applied is the race of the victim rather than the race of the perpetrator, though the race of the perpetrator does impact the likelihood of facing the death penalty--people of color have made up a disproportionate amount of those executed.

The Alabama judge most prone to judicial override? That would be Mobile Circuit Judge Ferrill McRae, who was appointed by Governor George Wallace. Yes, that George Wallace. When up for reelection, McRae has touted his overrides resulting in the executions of convicts by describing their crimes in detail in ads. 

Judicial elections are in general a bad idea because they undermine the very point of an independent judiciary. A judge who is elected has even more incentive to politicize their rulings than a judge who is appointed, an aspect of judicial elections that becomes even more disturbing when judges start bragging about all the people they've sent to their deaths. Despite Americans' supposed distaste for "results-oriented judging," it's hard to think of anything more results oriented than advertising your intention to overturn jury verdicts in death penalty cases because it'll help you win elections. 

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