Last week, Alabama’s newly-ascended Governor Kay Ivey signed a law that ended judicial override in Alabama. I will tell you what judicial override is in a moment. But first I want to share with you how we arrived at this bending toward justice moment.
People on death row are truly the least of the least of these. I have vigorously fought the unjustness of Alabama's death penalty for many years. I first introduced legislation to address this injustice in the year 2000. It proposed a three-year moratorium on all executions while the Alabama Legislature determined how to make capital punishment less infected by poverty, race, gender, inadequate legal representation, etc. I have introduced similar legislation virtually every year for 17 years. I have also introduced other legislation aimed at the unjustness of the death penalty. One of those bills would prevent what is known as judicial override. None of these bills passed.
Alabama was the only state still allowing a judge to override a jury’s verdict of life imprisonment without parole to impose a sentence of death. Nearly one-fourth of the human beings on Alabama’s death row are there by virtue of judicial override. In other words, after 12 citizens heard all the evidence in a death penalty case and rendered a verdict that called for life imprisonment without parole, a single judge could disregard the jury’s verdict and impose the death penalty.
Theoretically, a judge could also set aside a sentence of death and impose life without parole. Judges rarely set aside the death penalty to impose life without parole and regularly set aside life-without-parole sentences to impose the death penalty. And it happened even more regularly when judges were facing reelection. A number of judges confidentially told me how much they wanted judicial override removed because district attorneys often waged media campaigns to set aside life without parole verdicts to impose the death penalty. These judges were caught between a rock and a hard place.
After introducing the judicial override bill 11 times over a period of 11 years, I saw the odds of passage as very long with a Republican-controlled legislature. Even after the U.S. Supreme Court struck down similar laws in other states, I still perceived passage as unlikely in Alabama. But new champions arose.
Senator Dick Brewbaker, a Republican from Montgomery, decided to introduce a similar judicial override bill. He asked if I would mind. I said that I did not mind, and I urged him to take the judicial override baton and run with it. Lo and behold, he ran well, carrying the judicial override baton (bill) through the Alabama Senate. Then Rep. Chris England, a Democrat from Tuscaloosa, ran well, carrying the judicial override baton (bill) through the Alabama House. Then Gov. Kay Ivey signed the bill into law.
In the 21st Century, the death penalty has become more and more unused in the United States and around the world. Few Western countries other than the United States have the death penalty. In 1996, there were 315 death sentences. In 2015 there were 30, a very dramatic drop. In fact, during 2016 only five of 50 states executed a human being. Just two states, Texas and Georgia, accounted for 80 percent of executions in 2016. Only five states executed anyone in 2016. Of the roughly 3,000 counties in the U.S., death sentences come from just 27. The death penalty, in large measure, depends upon the zip code. There has been a huge decrease in the death penalty from shortly after 1976, when the U.S Supreme Court reinstated the death penalty, to today. The arc of the moral universe is long, but it bends toward justice.
Over the last decade, the U.S. Supreme Court has limited the death penalty in various ways. Children can no longer be put to death. The mentally ill can no longer be put to death. Children can no longer be given life without parole. Judicial override can no longer be utilized. I introduced bills prohibiting all of these.
Now that the Alabama Legislature and the governor have declared that judicial override is unfair, unjust and unlawful, it is reasonable, fair and just that the sentences of those on death row because of judicial override now be changed to life without parole. I tried to put an amendment on another death penalty bill that would commute to life without parole the sentences of those on death row by virtue of judicial override. I was unsuccessful. I then introduced a bill to accomplish that goal. I expect a long, hard fight. I want to bend the arc just a little more toward justice. The arc of the moral universe is long, but it bends toward justice.
EPILOGUE – Sometimes it’s hard to progress unless we look back over time. Too often we fail to see progress because we look just at the present or the immediate past. And when we look ahead, we see more problems than progress. Every now and then we have to look at the long arc of the moral universe.
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