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.