Law Review: New Article Highlights Decline of Judicial Death Sentences

At least 99 men and one woman are on death row in eight U.S. states, condemned to death by judges without the prior authorization of a jury, according to a 2019 study by researchers Michael Radelet and Ben Cohen (pictured) published in the Annual Review of Law and Social Science. Another 18 prisoners sentenced to death since the resumption of capital punishment in the U.S. in the 1970s, the study shows, have been executed after judges disregarded or overrode jury votes in favor of life.

Radelet and Cohen argue that death sentences imposed “without the protections of the right to a jury determination of sentence … violate[ ] both the original purpose of the constitutional protection and the evolving standards of decency” that govern the constitutionality of death-penalty practices today. These sentences, the authors write, are the product “of the constitutional blunder of trial judges instead of juries deciding who lives and who dies.”

Radelet and Cohen’s data “show that eight states have permitted or required some form of judge sentencing in capital cases since the dawn of the modern era of the death penalty in 1972.” However, judge-sentencing in capital cases has sharply declined this century, as a result of state and federal constitutional rulings and the actions of state legislatures.

In 2002, the U.S. Supreme Court ruled in Ring v. Arizona that the Sixth Amendment afforded a capital defendant the right to a jury determination of all facts necessary to impose a death sentence. In 2016, the Court struck down Florida’s death-penalty statute in Hurst v. Florida for violating that constitutional guarantee. Also in 2016, the Delaware Supreme Court, in Rauf v. State, declared its judicial sentencing statute unconstitutional. However, while the Delaware court ruled that Rauf applied to all cases in the state in which a death sentence had been imposed, the state and federal courts in Arizona and Florida have refused to apply Ring or Hurst to cases that had already completed the direct appeal stage of judicial review by the time Ring was decided.

Prior to Hurst, three states — Alabama, Delaware, and Florida — permitted judges to impose death sentences based upon non-unanimous jury recommendations for death and to override jury recommendations for life. Delaware and Florida have since discontinued those practices and Alabama has repealed the judicial override portion of its death-penalty statute. Indiana and Missouri direct the trial court to independently determine the sentence if the jury fails to reach a unanimous sentencing verdict.

Radelet, a professor in the University of Colorado, Boulder’s Department of Sociology and Institute of Behavioral Science and a noted death-penalty scholar, and Cohen, a capital litigator with the New Orleans-based Promise of Justice Initiative, have been tracking judicial sentencing in death-penalty cases for more than a decade. In 2017, they reported that Florida judges had imposed at least 134 death sentences after juries had returned non-unanimous sentencing recommendations in cases that were tried after Ring was decided or that were still pending on appeal when Ring was decided. For this study, they identified cases in which states permitted judges to impose the death penalty without a jury recommendation for death or permitted judges to override jury recommendations that a life sentence be imposed.

As of April 2019, they said, approximately 100 cases remained in which defendants who had not waived their right to a jury had been sentenced to death by judges. The most (40 cases) were Arizona cases that predated Ring, followed by 33 cases of judicial override in Alabama, and 11 death sentences imposed under Nebraska’s judge-only sentencing statute. They report that one woman, Robin Row, was sentenced to death in 1993 under Idaho’s pre-Ring judicial sentencing procedures. Alabama has executed 11 men whom judges sentenced to death despite jury recommendations for life, followed by Florida with four jury-override executions. Missouri has executed three prisoners who were sentenced to death in judge-only sentences.

Regarding these cases, Radelet and Cohen write, “[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 write, “is of retroactivity” and “whether the evolving standards of decency prohibit the execution of judge-imposed death sentences.”