Will 2017 Bring Change to Alabama’s Capital Punishment Law?

Written by: Emma Sloan

Member, The American Journal of Trial Advocacy

*Journal Member Emma Sloan follows up on Hurst v. State and offers an update on Alabama’s legislative intentions to address Judicial override of Jury recommendations in Death Penalty cases.

At the start of 2016, Alabama was among three states that had not yet changed its death penalty law eliminating judicial override. Now, at the beginning of 2017, Alabama is the last state to allow a judge to override a jury’s decision for a life sentence without parole and instead impute the death penalty.[1] Alabama also allows majority, rather than unanimous, jury vote for the death penalty.[2]

Beginning in January of 2016, after Hurst v. Florida[3], Alabama became one of only two states upholding a judge’s ability to override the jury and impose the death penalty. In Hurst, the Supreme Court of the United States held Florida’s death penalty law violated Hurst’s Sixth Amendment’s guarantee to a trial by jury.[4] The Court reasoned that because the jury is responsible for finding facts necessary to impose their verdict of choice, allowing the judge to override the jury’s decision gives the judge the fact-finding ability.[5] Therefore, it is no longer a trial by jury, but a trial by judge.[6] Eight months later, following the rationale in Hurst, Delaware changed its death penalty law, finding it unconstitutional in Rauf v. State.[7] Alabama has since been the only state to allow judicial override.

There are signs that Alabama’s death penalty law may be on the U.S. Supreme Court’s radar. In 2016, the Supreme Court vacated several Alabama inmate’s death sentences, remanding the cases back to Alabama courts to reconsider in light of the recent Florida decision.[8] However, the Supreme Court of Alabama remained firm in its stance, holding Alabama’s death penalty law constitutional even when considered in light of the Florida decision.[9] The issue has remained a topic of discussion, especially in the wake of Ronald Bert Smith’s arguably botched execution in December of 2016 after the Supreme Court split six-six in on whether to intervene in the case.[10] In anticipation of the Supreme Court’s hammer drop, Alabama Senator Dick Brewbaker has proposed new legislation to eliminate judicial override and allow a jury’s verdict to be final in capital cases.[11] Specifically, the death penalty law as written today describes the jury’s verdict as “advisory.”[12] Senator Brewbaker seeks to exclude the word “advisory” thereby making the jury’s verdict final and not subject to change by the presiding judge.[13] The first read of this proposed legislation is set for February 7, 2017.[14] Stay tuned.

[1] Ala. Code § 13A-5-47 (2012).

[2] Ala. Code § 13A-5-46 (2012).

[3] 136 S. Ct. 616 (2016).

[4] Id. at 622.

[5] Id.

[6] Id.

[7] 145 A. 3d 430, 433 (Del. 2016).

[8] See generally Kirksey v. Alabama, 136 S. Ct. 2409 (2016) (granting certiorari, vacating judgment, and remanding “for further consideration in light of Hurst v. Florida”); Wimbley v. Alabama, 136 S. Ct. 2387 (2016) (granting certiorari, vacating judgment, and remanding “for further consideration in light of Hurst v. Florida”); Johnson v. Alabama, 136 S. Ct. 1837 (2016) (granting certiorari, vacating judgment, and remanding “for further consideration in light of Hurst v. Florida”).

[9] Ex Parte Bohannon, No. 1150640, 2016 WL 5817692, at *5 (Ala. Sept. 30, 2016).

[10] Kent Faulk, Executed Alabama inmate failed to get one ‘courtesy’ vote from U.S. Supreme Court, al.com, (December 13, 2016), http://www.al.com/news/birmingham/index.ssf/2016/12/executed_alabama_death_row_inm.html; See Robert Matthews, Hurst v. State: Alabama and the Death Penalty, The American Journal of Trial Advocacy Blogpost, (December 5, 2016), http://www.cumberlandtrialjournal.com/hurst-v-state-alabama-and-the-death-penalty/.

[11] S.B. 16, 2017 Leg., Reg. Sess. (Ala. 2017).

[12] Ala. Code § 13A-5-47 (2012).

[13] S.B. 16, 2017 Leg., Reg. Sess. (Ala. 2017).

[14] Id.

 

1 Comment on "Will 2017 Bring Change to Alabama’s Capital Punishment Law?"

  1. Great article.

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