Editorial

Alabama a glaring example of problems with the death penalty

In Alabama, 36 of the nearly 200 people on death row were sent there by judges overriding juries

In the spring of 1997, four young men in a car near Montgomery, Ala., cut off a second vehicle with two men inside, intending to rob them. During a brief gun fight, the driver of the second car was killed. Prosecutors charged all four men in the first car with capital murder, but only one received a death sentence. How Shonelle Jackson was singled out raises — yet again — troubling questions about the fairness of the death penalty, and especially about Alabama's peculiarly arbitrary judicial override system.

Alabama is one of three states that allow judges to second-guess a jury's recommendation of life in prison and change it to a death sentence. Delaware and Florida also allow overrides, but they happen only rarely. In Alabama, 36 of the nearly 200 people on death row were sent there by judges overriding juries, according to a recent examination of the practice by the New Yorker. (In California, the jury decides, but a judge can reduce a death sentence to life without parole.)

In the Jackson case, a 12-member jury voted unanimously in 1998 for a life sentence rather than execution, in part because of evidence that the fatal bullet came from another defendant's gun. But invoking "judicial discretion," Judge William Gordon changed the sentence to death based on aggravating factors. One of the factors cited by the judge — who also acknowledged that Jackson might not have been the killer — was that he had declined to accept a plea bargain, thereby failing to take responsibility for his actions. So much for innocent until proven guilty. The other three men, friends before the shootout, received lighter sentences because they testified against Jackson, who knew them only in passing. One was sentenced to life; the other two come up for parole in 2015 and 2017.

Despite misgivings expressed in dissents, the Supreme Court has affirmed Alabama's use of judicial discretion in other cases. But that the practice is legal doesn't make it right. According to the state's Equal Justice Initiative, Alabama judges, who are elected rather than appointed, use the override inconsistently. Some use it more often against black defendants, some judges use it more than others, some counties use it more than others. Judges also invoke it more often in the lead-up to elections, apparently to show that they are tough on crime.

This page has been steady in its opposition to the death penalty. But if states are going to embrace such barbarism, they must respect the individual rights guaranteed under the Constitution, including its 8th Amendment protection against arbitrary punishment. It's one thing for an elected judge to be "tough on crime." It's something entirely different when the judge overrules a jury's call for leniency and imposes a death sentence.

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