Alabama Schedules Execution of Death-Row Prisoner Whose Jurors Voted 11 – 1 for Life

Alabama has set a November 17, 2022 exe­cu­tion date for a death-row pris­on­er whose jury vot­ed 11 – 1 to spare his life.

On September 30, 2022, bare­ly a week after the botched attempt­ed lethal injec­tion of Alan Miller, the Alabama Supreme Court grant­ed a motion by state pros­e­cu­tors to issue a death war­rant for Kenneth Smith. Smith, now 57, was sen­tenced to death in 1996 when his tri­al judge over­rode the jury’s near-unan­i­mous rec­om­men­da­tion for a life sen­tence. At the time, Alabama was one of only three states to per­mit judges to over­ride a jury’s vote for life and impose a death sen­tence. By the time the Alabama leg­is­la­ture repealed that por­tion of its death penal­ty statute in 2017, no oth­er state per­mit­ted the practice.

Smith and his co-defen­dant John Forrest Parker were sen­tenced to death for the 1988 con­tract killing of Elizabeth Sennett. The victim’s hus­band, Reverend Charles Sennett, alleged­ly paid each man $1,000 for the killing, and a week lat­er died by sui­cide. Parker was exe­cut­ed in 2010. Smith was first sen­tenced to death in 1989, when the tri­al court imposed the death penal­ty after his jury vot­ed 10 – 2 in favor of death. His con­vic­tion was reversed on appeal in 1992 because his pros­e­cu­tor uncon­sti­tu­tion­al­ly struck Black jurors on the basis of race.

Smith was retried and again con­vict­ed in 1996, but eleven of the jurors vot­ed to rec­om­mend he be sen­tenced to life. Trial judge M. Pride Tompkins ignored their rec­om­men­da­tion, and in May 1996 imposed a death sen­tence. In response to a defense motion for a new tri­al, Judge Tompkins explained his over­ride by assert­ing that the jury pur­port­ed­ly had been ​“allowed to hear an emo­tion­al appeal from the defendant’s moth­er.” The tri­al record estab­lished that this ​“emo­tion­al appeal” con­sist­ed entire­ly of Linda Smith’s unob­ject­ed to tes­ti­mo­ny about her son’s fam­i­ly back­ground, char­ac­ter, and upbringing.

“If Smith’s tri­al had occurred today, he would not be eli­gi­ble for exe­cu­tion,” a fed­er­al appeals court wrote in 2021.

In a peti­tion for cer­tio­rari filed in the U.S. Supreme Court in October 2021, Smith not­ed that Judge Tompkin’s stat­ed rea­son for over­rid­ing the jury’s life rec­om­men­da­tion was ​“near­ly iden­ti­cal to those the same tri­al judge offered for over­rid­ing the jury’s sen­tenc­ing ver­dict in a dif­fer­ent case involv­ing a dif­fer­ent defen­dant and dif­fer­ent facts.” In that case, Smith wrote, ​“the tri­al court dis­count­ed the jury’s sen­tenc­ing ver­dict because ​‘the Jury was allowed to hear an emo­tion­al appeal from the defendant’s wife.’”

Smith asked the Court to review the con­sti­tu­tion­al­i­ty of the tri­al court’s over­ride of the jury’s rec­om­men­da­tion ​“based on the same ratio­nale the tri­al judge lat­er offers to jus­ti­fy over­rid­ing the jury’s sen­tenc­ing ver­dict in a dif­fer­ent case involv­ing a dif­fer­ent defen­dant and dif­fer­ent facts.” The Court denied his peti­tion on February 22, 2022.

In a 2019 study pub­lished in the Annual Review of Law and Social Science, Michael Radelet and Ben Cohen found that, at that time, 100 defen­dants were on death row due to death sen­tences imposed by a judge, and anoth­er 18 pris­on­ers were exe­cut­ed after a judge over­ruled the jury’s vote in favor of a life sen­tence. Radelet and Cohen wrote, “[b]y any mea­sure, the judge-imposed sen­tences … stem from an anachro­nis­tic ves­ti­gial process from a peri­od from which the coun­try has evolved.” The ​“most sig­nif­i­cant ques­tion remain­ing,” they wrote, ​“is of retroac­tiv­i­ty” and ​“whether the evolv­ing stan­dards of decen­cy pro­hib­it the exe­cu­tion of judge-imposed death sentences.”

The prac­tice of judi­cial over­ride in cap­i­tal cas­es was out­lawed by the Alabama state leg­is­la­ture in April 2017. Prior to its repeal, the prac­tice was a sig­nif­i­cant source of con­tro­ver­sy, espe­cial­ly in Alabama.

In a 2016 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 per­mit­ted judges to over­ride a jury’s rec­om­men­da­tion for life, over­ride cas­es account­ed for less than a quar­ter of death sen­tences but half of death row exon­er­a­tions. Data from oth­er states sug­gests a link between judi­cial over­rides and wrong­ful con­vic­tions, as well.

A 2011 report by the Equal Justice Initiative (EJI) in Alabama found judges in the state have over­rid­den jury rec­om­men­da­tions 107 times since 1976; judges over­ruled life ver­dicts in favor of death sen­tences in 92% of these instances; and 20% of defen­dants on Alabama’s death row were sen­tenced through judi­cial over­rides. The report also found that polit­i­cal con­sid­er­a­tions influ­ence the prac­tice, with the use of judi­cial over­ride increas­ing dur­ing elec­tion years, which aligns with Alabama’s his­to­ry of elect­ing pros­e­cu­tors and judges with ​“tough on crime” plat­forms. ​“In 2008, 30% of new death sen­tences were imposed by judge over­ride, com­pared to 7% in 1997, a non-elec­tion year. In some years, half of all death sen­tences imposed in Alabama have been the result of over­ride,” EJI report­ed. Judicial over­ride also has been taint­ed by racial bias, with judges more like­ly to over­ride a rec­om­men­da­tion for life in cas­es involv­ing white vic­tims. ​“Seventy-five per­cent of all death sen­tences imposed by over­ride involve white vic­tims, even though less than 35% of all homi­cide vic­tims in Alabama are white,” EJI said.

If Smith is exe­cut­ed, it will be Alabama’s first exe­cu­tion since the mul­ti-hour botched exe­cu­tion attempt of Alan Miller on September 22, 2022. Alabama has refused to acknowl­edge that there were any prob­lems dur­ing its failed attempt to exe­cute Miller, its 2018 failed attempt to exe­cute Doyle Hamm, and the three-hour peri­od in which exe­cu­tion­ers failed at least 7 times to set an IV line dur­ing the exe­cu­tion of Joe Nathan James.