Alabama is set to exe­cute Ronald Smith on December 8, although the sen­tenc­ing jury in his case rec­om­mend­ed that he be sen­tenced to life. Under a prac­tice that is no longer per­mit­ted in any oth­er state, Smith’s judge over­rode the jury’s sen­tenc­ing rec­om­men­da­tion and imposed a death sen­tence. As his exe­cu­tion approach­es, Smith has filed a peti­tion in the U.S. Supreme chal­leng­ing the con­sti­tu­tion­al­i­ty of Alabama’s law. He argues it vio­lates both his right to have a jury deter­mi­na­tion of all facts that are a pre­req­ui­site to impos­ing the death penal­ty, and a nation­al con­sen­sus against judi­cial dis­re­gard of jury cap­i­tal sen­tenc­ing ver­dicts. Smith’s peti­tion notes that ​“Alabama is the only state that allows a judge to sen­tence a defen­dant to death when the jury has rec­om­mend­ed a sen­tence of life.” His lawyers also have peti­tioned Governor Robert Bentley for clemen­cy, quot­ing a juror who said, ​“It was very painful to make such a dif­fi­cult deci­sion, only to have the judge dis­re­gard it.” A recent report by the Brennan Center on Justice found that ​“elec­toral pres­sures influ­ence judges’ deci­sions in cap­i­tal cas­es,” includ­ing Alabama’s prac­tice of judi­cial over­ride, which accounts for one-fifth of Alabama’s death row. Earlier this year, state courts in Florida and Delaware – the only oth­er states that had per­mit­ted judi­cial over­ride – struck down sen­tenc­ing statutes that per­mit­ted judges to impose death sen­tences in the face of jury rec­om­men­da­tions for life or non-unan­i­mous rec­om­men­da­tions for death. These deci­sions grew out of the U.S. Supreme Court’s January 2016 rul­ing in Hurst v. Florida that “[t]he Sixth Amendment requires a jury, not a judge, to find each fact nec­es­sary to impose a sen­tence of death.” Smith’s attor­neys argue that Alabama’s judi­cial over­ride prac­tice vio­lates Hurst. Alabama’s attor­ney gen­er­al dis­agrees, argu­ing that the Alabama statute is dif­fer­ent from Florida’s because it requires the jury to find the exis­tence of an aggra­vat­ing fac­tor mak­ing the defen­dant eli­gi­ble for death. Smith’s lawyers also argue that “[t]his life-and-death deci­sion is being made by judges fac­ing intense elec­toral pres­sure,” ren­der­ing such over­rides uncon­sti­tu­tion­al­ly arbi­trary. Smith was nev­er able to obtain review of these issues in fed­er­al court because his attor­ney made an error in pay­ing a fil­ing fee. Though his claims were filed by the dead­line, his lawyer, who was on pro­ba­tion for pub­lic intox­i­ca­tion at the time, assumed he did not have to pay a fil­ing fee of $154 because his client was indi­gent. In addi­tion to his judi­cial over­ride chal­lenge, Smith is also part of a group of death row inmates chal­leng­ing Alabama’s new lethal injec­tion pro­to­col, which would use mida­zo­lam, a drug involved in sev­er­al botched exe­cu­tions over the last few years.

(“Alabama Death Row inmate Ronald Bert Smith asks US Supreme Court to stop exe­cu­tion,” Associated Press, December 2, 2016; A. Liptak, ​“Lawyers Stumble, and Clients Take Fall,” The New York Times, January 7, 2013; K. Faulk, ​“Alabama death row inmate seeks clemen­cy from gov­er­nor,” AL​.com, December 1, 2016.) See Sentencing and Arbitrariness. Read Ronald Smith’s clemency petition.

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