Activist Judge

Regular readers know I think that term is a load of crap, and that I have very little patience for anyone who uses it, because – no matter who invokes it – what it invariably means is nothing more than “this judge made a decision I do not like.” But, if there is any case in the world where a judge actually has imposed his own views on an unwilling populace, it’s this one:

Brandon Deon Mitchell was sentenced Wednesday to death for a Thanksgiving Day 2005 triple murder after the judge overturned the jury’s 10-2 vote for life without parole.

The intro to “Law & Order” notwithstanding, in the criminal justice system the people are represented by the jury. And this particular jury heard all the evidence, considered all the arguments, and decided that no, in this particular case death was not appropriate. Then one elected judge in a rabidly death penalty state decides that his own opinion is better than that of ten jurors.

This is not a unique occurrence. Alabama law lets the judge override the jury’s recommendation for life or its recomendation for death. Judges use that power all the time. But they almost always use it like the judge did in this case: Ninety per cent (90%) of the time judges use the override, they use it to reject the jury’s pro-life decision and impose a death sentence.

Like I said, I think this is bad policy. I see no reason whatsoever to trust a judge’s decision more than the collective wisdom of the jury, especially not when that judge has to run for re-election in a state that is extremely pro-death penalty. I also think it is unconstitutional.

Basically, before Alabama can execute someone, Alabama has to do three things: 1) convict the person of a capital crime; 2) prove beyond a reasonable doubt that at least one “aggravating factor” to that crime was present; 3) demonstrate that the aggravating factor, or factors, outweigh any existing mitigating factors.

Its absolutely settled that the first two things are the sole province of the jury. If the jury says no on either, then that’s it, no death penalty.

The unsettled question is who gets to decide the third question. Most states have given that task to the jury alone. Alabama, by allowing judicial override, has said either the judge or the jury. In other words, in Alabama, there can be no death penalty if the jury votes nay on one or two, however, if the jury says yea on one and two, then, even if the jury says nay on three, the judge can impose death if the judge himself decides the aggravating factors outweigh the mitigating factors.

I think that is unconstitutional.

Over the last few years, Scotus (Scalia in particular) has re-invigorated the sixth amendment right to a jury trial by holding in several cases that facts essential to a penalty must be found by the jury beyond a reasonable doubt. That was the idea behind the end of the mandatory federal sentencing guidelines. It’s also the idea that made the second factor a question for the jury.

Now, here’s why I think that idea should also eliminate judicial override. Facts essential to the penalty must be found by the jury beyond a reasonable doubt. All three factors – capital crime; existence of an aggravating factor; aggravating factors outweigh mitigating factors – are essential to the death penalty. Hence, they all must be found by the jury beyond a reasonable doubt. That would mean the judge can not decide the third any more than the first two. If the jury says no death, that’s it, no death.

The objection to my analysis is that the weighing process is not a factual determination, but a moral judgment incapable of being subjected to standards like beyond a reasonable doubt standard. My response would be that beyond a reasonable doubt is not a quantitative measurement, but an expression of confidence. So it would be perfectly appropriate to apply it to the weighing process. Before the state can impose death, the jury must say that it is convinced beyond a reasonable doubt that death is appropriate.

That’s just my view on the current state of conlaw and its application to Alabama’s death penalty procedures. Regardless of whether you agree with me on that or not, I think we can all agree that as a matter of policy, we ought to get rid of judicial override. If twelve of our peers decide death is inappropriate, what is there to complain about?

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Explore posts in the same categories: Alabama Court Decisions, Birmingham Crime, Capital Punishment, Scotus

9 Comments on “Activist Judge”

  1. Dystopos Says:

    What do you make of Cole’s statements:

    “I weighed [the jury verdict] very heavily in favor of the defendant,” said Jefferson County Circuit Judge Bill Cole, who presided over Mitchell’s capital murder trial in November. “But everything tells me the jury did not make the right decision.”

    “I never saw myself as someone who would override a jury’s decision, especially a 10-2 decision,” Cole said. “Maybe the courts will do away with overrides. If they do, it won’t hurt my feelings at all.”

  2. quaoar Says:

    I wonder whether the decision in the Tomlin case will have any bearing on this one.

    http://www-news.uchicago.edu/releases/03/031009.harcourt.shtml

  3. Wheeler Says:

    “What do you make of Cole’s statements.”

    typical claptrap. dress it up any way you want, this is the purest form of a judge substituting his opinion for that of the jury.

    “I wonder whether the decision in the Tomlin case will have any bearing on this one.”

    it does not appear that it will. in tomlin, the judge was reversed because the judge relied on some improper factors when he overrode the jury. i did not see anything in the news that indicated judge cole relied on anything but the evidence submitted at the sentencing hearing.

  4. Dystopos Says:

    If we assume Cole is not the vindictive or bloodthirsty sort by temperment, what factors might have gone into his decision to override? Is it a play to the voters? Are there interest groups that would make a fuss? What sort of backlash would pertain to keeping the jury’s sentence vs overriding it? Was he provoked by fear? by calculation? by loyalty to precedent?

  5. wheeler Says:

    oh i don’t think he consciously decided to do something nasty, like put his political career ahead of the facts of the case. but i’m sure somewhere inside him the “get tough on crime” cries played a role.

    all i’m saying he is absolutley no better qualified than the jury to decide whether or not the defendant ought to be executed.

    i’m sure he honestly weighed the facts and decided that – in his opinion – death was the correct result.

    i dislike that for two reasons: 1) his opinion ought not trump that of ten jurors; and 2) whether he took into consideration the political/popular reaction to his decision, it certainly looks that way.

  6. CheifManyTypos Says:

    Juries have never been able to sentence offenders for crimes. Judges have always held that authority.

    Back in the 70s, anti-death penalty advocates argued that juries should have no role in sentencing, as they would be too influenced by passion and could not make unbiased sentences.

    The idea that juries should sentence is just a new tactic for anti-death penalty advocates.

  7. wheeler Says:

    “The idea that juries should sentence is just a new tactic for anti-death penalty advocates.”

    which, even if true, is completely irrelevent to whether or not it is a good idea.


  8. […] First, I’ve written a lot about the death penalty lately. (E.g., here, and here). I’m pretty wishy washy on capital punishment, but if anyone out there deserves […]

  9. Hal Davis Says:

    I just learned of Alabama’s jury override provision. This should be grist for Scalia’s view that jury findings are paramount.

    Would certainly also re-invigorate the notion of strange bedfellows.


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