Alabama Judicial Disciplinary Court Suspends Judge Who Declared State’s Death Penalty Unconstitutional, Saying She Disregarded Appellate Decisions and Abandoned Neutrality

The Alabama Court of the Judiciary has sus­pend­ed for 90 days with­out pay an African-American tri­al judge who declared the state’s death penal­ty statute uncon­sti­tu­tion­al and crit­i­cized appel­late review of some death penal­ty cas­es as ​“cer­e­mo­ni­al at best.” 

After a four-day tri­al, the dis­ci­pli­nary pan­el ruled on December 3, 2021 that Jefferson County Judge Tracie Todd had vio­lat­ed four canons of judi­cial ethics in con­nec­tion with her con­duct in death penal­ty cas­es. In an opin­ion that pro­vid­ed lit­tle expla­na­tion for how it reached its deci­sion, the judi­cia­ry court admon­ished Todd for ​“repeat­ed­ly dis­re­gard­ing the law as set forth in deci­sions of the Alabama appel­late courts”; ​“defy­ing and dis­re­gard­ing orders and deci­sions of the Alabama Court of Criminal Appeals”; ​“mak­ing inap­pro­pri­ate state­ments regard­ing the Alabama judi­cia­ry, includ­ing … sug­gest­ing that the judi­cia­ry in Alabama is polit­i­cal­ly cor­rupt”; and ​“aban­don­ing her role as a neu­tral arbiter and becom­ing an advo­cate for defen­dants, her own judi­cial rul­ings, and her personal opinions.” 

The pan­el also ruled that Todd had vio­lat­ed judi­cial ethics by plac­ing a white pros­e­cu­tor who had attempt­ed to recuse her under oath and ques­tion­ing him ​“regard­ing his con­tri­bu­tions to her polit­i­cal oppo­nen­t’s cam­paign in a mat­ter in which such con­tri­bu­tions were not at issue and were not raised by any par­ty, there­by cre­at­ing at least the appear­ance of impropriety.”

Todd’s lawyer did not indi­cate whether she will appeal the ruling.

In March 2016, Todd issued a rul­ing that barred Jefferson County pros­e­cu­tors from seek­ing the death penal­ty in four cas­es and that declared the state’s death-penal­ty statute uncon­sti­tu­tion­al because it per­mit­ted judges to impose death sen­tences based on non-unan­i­mous jury rec­om­men­da­tions for death and to over­ride jury votes for life. Her deci­sion came in the wake of the U.S. Supreme Court’s January 2016 rul­ing in Hurst v. Florida strik­ing down Florida’s death penal­ty scheme on the grounds that it reserved the final author­i­ty to deter­mine facts nec­es­sary to impose the death penal­ty to judges, rather than juries. 

Based on Hurst, courts in the only oth­er states that had per­mit­ted judi­cial over­ride — the Florida and Delaware Supreme Courts — declared the prac­tice uncon­sti­tu­tion­al. The Alabama appeal courts reversed Todd’s ruling.

Todd not­ed in her deci­sion that ​“Alabama has become a clear out­lier” by per­mit­ting judges to impose death sen­tences by over­rid­ing jury votes for life. ​“Alabama is soli­tary in its unbri­dled sys­tem of allow­ing judges to devi­ate from jury advi­so­ry ver­dicts in order to effect life-to-death sen­tence over­rides,” she wrote. Relying on Hurst, she said cap­i­tal sen­tences in the state were ​“being imposed in a whol­ly unconstitutional manner.” 

Todd echoed the dis­sent­ing opin­ions of U.S. Supreme Court jus­tices John Paul Stevens and Sonia Sotomayor that the par­ti­san nature of judi­cial elec­tions inevitably influ­enced judi­cial actions and Alabama judges were more like­ly to over­ride jury votes for life and impose death sen­tences in years they were up for elec­tion. Quoting Justice Sotomayor, she wrote, ​“Alabama judges have become ​‘too respon­sive to a high­er pow­er’ and have ​‘suc­cumbed to elec­toral pres­sures.’” As a result, she said, ​“An appeal to the high­er courts in Alabama on behalf of a cap­i­tal defen­dant sen­tenced to death by judi­cial over­ride is cer­e­mo­ni­al at best.”

Todd also wrote that it was ​“an open secret” that judi­cial deci­sions to appoint coun­sel in death penal­ty cas­es were used to reward cam­paign con­tri­bu­tions. ​“Alabama’s judi­cia­ry has unequiv­o­cal­ly been hijacked by par­ti­san inter­ests and unlaw­ful leg­isla­tive neglect,” she said. 

Though Todd nev­er used the term, the dis­ci­pli­nary court equat­ed her com­ments with ​“sug­gest­ing that the judi­cia­ry in Alabama is polit­i­cal­ly cor­rupt.” It also sanc­tioned her for engag­ing in judi­cial analy­sis beyond the four cor­ners of the argu­ments raised in the defen­dants’ chal­lenge to Alabama’s statute, say­ing she had ​“engag[ed] in extra­ju­di­cial fac­tu­al inves­ti­ga­tions, by mak­ing find­ings of fact regard­ing mat­ters as to which no evi­dence was pre­sent­ed, and by inap­pro­pri­ate­ly insert­ing legal issues not raised by the parties.”

Alabama’s Judicial Inquiry Commission sus­pend­ed Todd with pay in April 2021, fil­ing a 109-page com­plaint against her. The com­plaint alleged that her order bar­ring pros­e­cu­tors from seek­ing the death penal­ty con­sti­tut­ed judi­cial over­reach because her rul­ing applied only to death sen­tences imposed by judi­cial over­ride, not cas­es in which juries rec­om­mend­ed the death penal­ty. It fur­ther charged that she had abused judi­cial pow­er by ban­ning a Birmingham pros­e­cu­tor from her court­room, hold­ing him in con­tempt of court, and accus­ing him of ​“unpre­dictable mood swings” and pos­si­ble ​“men­tal instability.”

Todd also refused to recuse her­self from oth­er cas­es involv­ing that pros­e­cu­tor, assert­ing that the recusal motions had been filed in retal­i­a­tion for her deci­sion strik­ing down the death penal­ty. ​“Historically, judges in Alabama who made unfa­vor­able rul­ings against the inter­ests of the pow­er struc­ture were threat­ened, ostra­cized and made sub­ject of per­son­al and polit­i­cal retal­i­a­tion,” she wrote. She then attempt­ed to remain on the cas­es after state appeals courts ordered her recused. 

The Court of the Judiciary ruled that the time she had been sus­pend­ed as a result of the Judicial Inquiry Commission com­plaint would count toward her pun­ish­ment for the ethics vio­la­tion. The court rein­stat­ed her to the bench, effec­tive December 6, 2021, with­out pay for 90 days. The court also assessed Todd the costs of the disciplinary proceedings.