Editorial: Alabama rightly ends its outrageous death penalty sentencing procedures

Alabama’s embattled Gov. Robert Bentley stepped down Monday after pleading guilty to two misdemeanors following a salacious sex scandal. That set off an enormous media extravaganza that overshadowed the other big political news out of Alabama this week: Bentley’s successor, Gov. Kay Ivey, signed a law Tuesday ending the state’s atrocious practice of allowing judges to override a jury’s recommendation of a life sentence and instead send convicted killers to death row.

The death penalty is an anachronistic, barbaric act, and society would be better off without it. It is meted out disproportionately against people of color and the poor. It hinges on the arbitrary whims of local prosecutors, who decide whether particular murders should be charged as capital offenses. The courts themselves have proven susceptible to bad policing, prosecutorial misconduct and lying witnesses.

But despite all that, states that continue to put people to death need to ensure that they do so as fairly as possible and without violating the constitution.

Alabama hasn’t met those standards. The Supreme Court ruled in its 2002 Ring vs. Arizona decision that under the 6th Amendment guarantee to a jury trial, the “findings of fact” that can lead to an execution must be made by a jury, not a judge. The court reinforced that standard in its 2015 Hurst vs. Florida decision, ruling that Florida’s system of having juries issue advisory recommendations was insufficient because the final decision was left to a judge. Florida subsequently revised its rules; the Delaware Supreme Court also voided its similar system. But Alabama’s judicial override system sputtered on. The outrageous practice is compounded by politics. The Equal Justice Initiative, a civil rights and criminal justice advocacy group, has reported that judicial overrides increase during judicial election years, suggesting that some death sentences may have been imposed not because the defendants were the “worst of the worst,” but because judges running for reelection sought to portray themselves as tough on crime. That would be a cynical abuse of judicial authority.

So in the “better late than never” spirit, it’s good that Alabama has finally ended the practice. But hold the full applause. The new law doesn’t change Alabama’s rule allowing a death sentence to be handed down on the basis of 10 out of 12 juror votes (rather than a unanimous 12, which is what is required for conviction). Also, the new law is not retroactive, which means people sent to Alabama’s death row by judges overruling juries still face executions. Presuming Alabama isn’t about to end the death penalty altogether, it should take those two additional steps to make its system as fair and just as possible.

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