Alabama Suspends African American Judge Who Declared Death Penalty Unconstitutional, Alleging Abuse of Power and Anti-Death Penalty Bias

The Alabama Judicial Inquiry Commission has sus­pend­ed an African-American judge who declared the state’s death penal­ty statute uncon­sti­tu­tion­al, accus­ing her of unpro­fes­sion­al con­duct and anti-death penalty bias. 

In a 109-page com­plaint filed on April 6, 2021, the Commission charged Judge Tracie Todd (pic­tured), a crim­i­nal court tri­al judge in the Birmingham Division of the Jefferson County Circuit Court, ​“with mul­ti­ple inci­dents of abuse of judi­cial pow­er and aban­don­ment of the judi­cial role of detach­ment and neu­tral­i­ty, pri­mar­i­ly … in the con­text of embroil­ment regard­ing the issue of the death penal­ty, pros­e­cu­tors and the pros­e­cu­to­r­i­al dis­cre­tion of the exec­u­tive branch, and per­son­al vin­di­ca­tion of her pri­or rul­ings and actions.” It alleges that Todd repeat­ed­ly improp­er­ly refused to recuse her­self from cas­es and engaged in a pat­tern of con­duct exhibit­ing ​“lack of faith­ful­ness to the law,” ​“lack of prop­er judi­cial tem­pera­ment and demeanor,” dis­re­gard for the orders of high­er courts, and ​“an appar­ent pre­dis­po­si­tion against the death penalty generally.” 

In March 2016, Todd barred Jefferson County pros­e­cu­tors from seek­ing the death penal­ty in four cas­es and declared the state’s death-penal­ty statute to be uncon­sti­tu­tion­al. 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. 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 and, rely­ing on Hurst, said cap­i­tal sen­tences in the state were ​“being imposed in a whol­ly unconstitutional manner.”

The com­plaint alleges that Todd’s order bar­ring pros­e­cu­tors from seek­ing the death penal­ty inter­fered with their dis­cre­tion to seek the death penal­ty because her rul­ing applied only to exer­cis­es of judi­cial over­ride, not cas­es in which jurors rec­om­mend­ed the death penal­ty. It also crit­i­cized her for rely­ing on sec­ondary sources she had inde­pen­dent­ly obtained, includ­ing infor­ma­tion that Alabama tri­al judges were more like­ly to impose the death penal­ty dur­ing an elec­tion cycle in which they were on the bal­lot, and that unqual­i­fied lawyers were being appoint­ed in cap­i­tal cas­es based on cam­paign con­tri­bu­tions. Those extra­ne­ous sources, the com­plaint said, ​“vio­late a judge’s duty of detach­ment and neu­tral­i­ty.” The com­plaint fur­ther alleges that Todd improp­er­ly refused to recuse her­self from oth­er death penal­ty cas­es after her deci­sion was over­turned on appeal. 

The com­plaint also charges Todd with abuse of pow­er for ban­ning a Birmingham pros­e­cu­tor from her court­room and hold­ing him in con­tempt of court. In that mat­ter, Todd emailed the sher­iff request­ing increased secu­ri­ty in her court­room, claim­ing that the pros­e­cu­tor had ​“unpre­dictable mood swings” and that his insis­tence on appear­ing in her court­room ​“demon­strates will­ful dis­re­gard or men­tal insta­bil­i­ty.” She also emailed the dis­trict attor­ney about the prosecutor’s sub­par per­for­mance in a pair of rape cas­es in which defen­dants charged with rap­ing Black vic­tims were acquit­ted. She then said that a court observ­er and sev­er­al lawyers had remarked to her that the prosecutor’s behaved con­fronta­tion­al­ly towards her because she is a Black woman. 

The pros­e­cu­tor sub­se­quent­ly filed motions to recuse Todd in all future cas­es in which he was involved. Todd denied the motions and, on appeal, assert­ed that the 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 in oppos­ing the recusal appeal. ​“The meth­ods employed in these peti­tions amount to tac­ti­cal relics of dark days past.”

Judge Todd has been auto­mat­i­cal­ly sus­pend­ed with pay pend­ing res­o­lu­tion of the charges. No Alabama tri­al judge who over­rode jury rec­om­men­da­tions for life has ever been sus­pend­ed for pro-death penalty bias.