Shannon Rae McKenzie had never heard of judicial override when she was summoned for jury duty back in 2010. During jury selection, McKenzie said, the defense and prosecution asked her whether she could “ever sentence a man to death.” McKenzie said she could, and she was picked as a juror in the murder trial of Courtney Lockhart. Before the trial, McKenzie vaguely knew the story of the crime, because it had made national news. In 2008, Lockhart, a black Iraq war veteran, had abducted Lauren Burk, a white freshman at Auburn University, and forced her to strip naked at gunpoint while he drove her car. Burk jumped from the vehicle, Lockhart shot her, and she died soon after.
When McKenzie and the 11 other jurors unanimously agreed that Lockhart was guilty and deserved life in prison without the possibility of parole, McKenzie thought the trial was over. So when a friend called her a few months later to tell her the judge had overruled the jury’s verdict and sentenced Lockhart to death, McKenzie was shocked. “I couldn’t believe it. I didn’t know that could happen,” McKenzie said.
In January, the Supreme Court declared that Florida’s practice of judicial override—which is similar to the Alabama law under which Lockhart was sentenced—was unconstitutional, because it violated a defendant’s Sixth Amendment right to a jury by his or her peers. But, in Alabama, judicial override is still the law, and Lockhart and dozens of others, sentenced not by juries but judges, remain on death row. There are serious questions—even among judges in Alabama—of the constitutionality of the state’s death penalty system, and a higher court will likely have to address it sooner or later. Until one does, juries in Alabama will continue to be asked to weigh the punishment of life without parole or death, only to have their decision readdressed and possibly changed by a judge. And more defendants may be sentenced to death not by a jury of their peers but by judges.
In its 8–1 ruling in Hurst v. Florida at the start of the year, the court wrote that the Constitution requires “a jury, not a judge, to find each fact necessary to impose a sentence of death.” The Hurst decision was buttressed by the 2002 case, Ring v. Arizona, in which the Supreme Court ruled 7–2 that Arizona’s use of judicial override was unconstitutional. Only two states, Alabama and Delaware, have death penalty statutes similar to the one that the court struck down in Florida. While no one is currently on death row in Delaware due to judicial override, the state recently halted all capital trials and executions until the state Supreme Court can review the statute’s constitutionality.
Alabama is a different story. Since 1981, judges in the state have overridden at least 101 life verdicts for the death penalty. (They’ve also switched 10 death verdicts to life.) At least 40 people currently on death row in Alabama, including Lockhart, were sentenced to death not by a jury but by a judge. After the January ruling, the Alabama attorney general’s office issued a statement saying that the Supreme Court’s decision “does not affect Alabama’s law” because Alabama juries specify the aggravating factors—like a murder being committed during a robbery, a rape, or a kidnapping—that might justify the sentence of death, even if they don’t vote in favor of the death penalty in a given case. In its ruling, the Supreme Court struck down Florida’s statute because it allowed judges to find these aggravating factors on their own without the jury’s input and exposed defendants to greater punishments than authorized by the juries. In both states, though, after a jury’s advisory verdict, a judge reweighs evidence—including pretrial investigations and a sentencing hearing where the jury is not present—and makes a final decision.
Since the Supreme Court struck down Florida’s death penalty statute, some of Alabama’s own judges have been questioning the practice of judicial override. At a January meeting of the Alabama Circuit Judges’ Association, judges from the state’s 67 counties were split on whether or not they should continue to hear capital cases until a decision is made on the law, while other judges argued that trials should proceed as before until the Supreme Court directly declares the statute unconstitutional. The judges agreed to form a committee to recommend and possibly help draft a new sentencing structure for the Alabama legislature.
One key problem with judicial override is that judges in Alabama face partisan elections every six years, which can come with public pressure to punish criminal defendants harshly. Judge Tommy Nail, the presiding criminal judge in Jefferson County, Alabama’s most populous county, believes that the Supreme Court’s ruling was “not exactly clear” in how its ruling should affect Alabama’s statute and that, in theory, judicial override can work to correct improper verdicts. The problem, he argued, “comes in practical application because of the pressures and other things that we as human beings have to deal with.” Nail clarified that “pressures” mean elections.
In Alabama, judges run in partisan elections every six years. And many judges I spoke with, like Nail, said there is pressure to appear tough on crime. “I am not saying that judges decide to [use override] because of elections, but I do know that the death penalty, being as popular as it is, is used all the time to promote an election,” retired Judge Pam Baschab said. Baschab was on the bench for 20 years, and in 1995 she overrode a jury’s verdict and sentenced a man to death. She remembers that the local district attorney was a big fan of media attention, and a capital murder trial in a small town in Alabama is big news.
“There was pressure on me. I knew that whatever my decision was [it] was going to be a big public thing, whatever I did, and the district attorney was pushing for the death penalty. He wanted me to do the override,” Baschab remembered. “I don’t believe in my heart of hearts, that that influenced me, but I can see how it could influence me, or anyone else.”
Jeremy Armstrong has stood on both sides of this issue. For years, he was an assistant attorney general prosecuting death penalty cases. Now, Armstrong is a defense attorney and has tried more than 26 capital cases in Alabama. He defended Lockhart and originally doubted whether he could get a fair trial in rural Alabama because the case was heavily publicized and involved the murder of a beloved local college student. “[But] those 12 men and women on the jury in Lockhart’s case proved me wrong,” he told me. When the judge overrode the jury’s verdict, Armstrong said, he was at a complete loss. Since there are no standards a judge must follow for overrides, Armstrong wondered what further evidence he could have presented and questioned his own future as a defense attorney.
Armstrong said he believes that when judges override, they “show contempt for those jurors.” I contacted all 12 jurors in Lockhart’s trial to try to see how they felt being on the jury and having their verdict overridden. Aside from McKenzie, only one other juror agreed to speak to me, but she asked to remain anonymous. Like McKenzie, she and her family still live in the area, and she said the case has haunted her for years. “When I found out [the judge] overturned it, it was kind of like a slap in the face,” she said of the judge’s decision. “He knew that he was going to overturn that. I was kind of like, what were we there for?” The judge, Jacob A. Walker III, said he couldn’t speak to me about this case since it’s still in appeals.
In the wake of the Supreme Court ruling, Armstrong and other defense attorneys have started filing motions in current capital cases arguing that the judicial override portion of Alabama’s death penalty is unconstitutional. Armstrong’s filed his motion four times, but so far, no judge has ruled on it. Judge Nail said he has denied similar motions before him. Earlier this month, though, Judge Tracie Todd in Jefferson County ruled that in light of the Supreme Court’s decision in Hurst, Alabama’s death penalty statute is unconstitutional and cannot not be applied to the four capital cases before her. The state has appealed her ruling, and the attorney general has repeated his office’s stance that Alabama’s use of judicial override is not affected by the Supreme Court’s ruling.
The reality is, though, that the practice of judicial override denies defendants of their constitutional right to trial by jury, explodes one of the tenets of democracy, and renders mute the voice of the people. For now at least, Alabama remains the only state where judges alone decide life or death.