Wrongful Capital Convictions May Be More Likely in Cases of Judicial Override, Non-Unanimous Death Verdicts

New data sug­gests that states that cap­i­tal sen­tenc­ing statutes that per­mit judges to impose death sen­tences by over­rid­ing jury rec­om­men­da­tions for life or after juries have returned non-unan­i­mous rec­om­men­da­tions for death may increase the risk of wrongful executions. 

In an arti­cle in the Yale Law Journal Forum, lawyers Patrick Mulvaney and Katherine Chamblee of the Southern Center for Human Rights report that in Alabama, the only state that still per­mits judges to over­ride a jury’s rec­om­men­da­tion for life, over­ride cas­es account for less than a quar­ter of death sen­tences but half of death row exon­er­a­tions. They say that this may be a result of ​“resid­ual doubt” among jurors, which they describe as ​“a state of mind that exists some­where between ​‘beyond a rea­son­able doubt’ and ​‘absolute cer­tain­ty,’” often result­ing from weak­er or more sus­pect evi­dence of guilt. Research has shown that when juror have such doubts, they are sub­stan­tial­ly more like­ly to vote for a life, as did jurors in the cas­es of Alabama death row exonerees Larry Randal Padgett (9 – 3 jury vote for life) and Daniel Wade Moore (pic­tured, left, 8 – 4 vote for life) and cur­rent death row pris­on­er Shonelle Jackson (unan­i­mous jury life recommendation). 

Non-unan­i­mous jury rec­om­men­da­tions for death also appear to pose sim­i­lar prob­lems. Of Alabama’s six death row exon­er­a­tions, 83% involved either judi­cial over­ride (3 cas­es) or non-unan­i­mous jury votes for death (2 cas­es, includ­ing Anthony Ray Hinton, pic­tured). Data from Florida reveals a sim­i­lar pat­tern: of the 20 death row exon­er­a­tions for which infor­ma­tion on the jury vote is avail­able, 90% involved a non-unan­i­mous rec­om­men­da­tion for death, includ­ing three judi­cial over­rides of jury rec­om­men­da­tions for life. 

In 1984, U.S. Supreme Court Justice John Paul Stevens raised con­cerns about judi­cial over­ride and wrong­ful con­vic­tions that are now sup­port­ed by data: ​“It may well be that the jury was suf­fi­cient­ly con­vinced of petitioner’s guilt to con­vict him, but nev­er­the­less also suf­fi­cient­ly trou­bled by the pos­si­bil­i­ty that an irrev­o­ca­ble mis­take might be made … that [it] con­clud­ed that a sen­tence of death could not be moral­ly jus­ti­fied in this case.” 

Statutes per­mit­ting judi­cial over­ride or non-unan­i­mous jury rec­om­men­da­tions for death have been under increased scruti­ny since the U.S. Supreme Court’s deci­sion in Hurst v. Florida in January 2016. Hurst struck down Florida’s sen­tenc­ing statute say­ing, ​“The Sixth Amendment requires a jury, not a judge, to find each fact nec­es­sary to impose a sen­tence of death.” Florida’s leg­is­la­ture respond­ed by end­ing judi­cial over­ride and requir­ing juries to unan­i­mous­ly find aggra­vat­ing cir­cum­stances in cap­i­tal cas­es, though they may still make non-unan­i­mous sen­tenc­ing rec­om­men­da­tions. The Delaware Supreme Court struck down its sen­tenc­ing statute in light of Hurst in August 2016, leav­ing Florida and Alabama as the only states that still per­mit non-unan­i­mous jury rece­om­men­da­tions of death.

The jury votes in the four oth­er Alabama death row exon­er­a­tions were: Walter McMillian, 7 – 5 for life; Anthony Ray Hinton, 10 – 2 for death; and Wesley Quick, 11 – 1 for death. The oth­er Alabama death row exoneree, Gary Drinkard, waived jury sentencing altogether.