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.