On November 20, 2020, the U.S. Supreme Court is scheduled to conference the case of Calvin McMillan, one of thirty-two Alabama death-row prisoners whose death sentences were imposed by trial judges who overrode jury recommendations to sentence the defendants to life. McMillan has asked the Court to declare the practice unconstitutional, and two jurors who voted for life in judicial override cases and three former state court judges in states that had permitted the practice, have filed friend-of-the-court briefs supporting his efforts.

McMillan, who is Black, was 18 years old when he shot a white man in a Walmart parking lot to steal his truck. During McMillan’s trial in June 2009, the jury was presented evidence of the horrific trauma McMillan experienced as a child, including hunger so severe that he would draw pictures of sandwiches and eat the paper. The defense described for the jury a rudderless childhood of deprivation and neglect spent shuttling between more than two dozen foster homes and institutions. Weighing the mitigating evidence against the single aggravating factor in the case — that the murder was committed during the course of a robbery — the jury voted 8-4 to recommend that McMillan be sentenced to life. The trial judge overrode their verdict, claiming with no support in the record that they had grown “tired” of deliberating.

Jurors Francis Miles, who was one of seven jurors who unsuccessfully voted to spare Ulysses Sneed in his 2006 retrial, and Janet Johnson, who was one of nine jurors whose votes for life were overridden in the 1992 capital trial of Larry Padgett, told the Court that judicial override disrespects the views of individual jurors and the critical role juries play in expressing the conscience of the community in capital cases. In a November 12 commentary in the American Constitution Society Expert Forum blog, Mr. Miles said the judge’s decision to disregard the jury’s judgment “was a slap in the face that shook my confidence in the criminal justice system.” “The whole process was a waste of time and taxpayer dollars,” he said.

Three former judges from judicial override states (two from Florida and one from Alabama) also filed an amicus curiae brief in support of McMillan, writing that “executing defendants who were sentenced to death by judicial override does not comport with this country’s evolving standards of decency and would allow the consequences of an unreliable system to continue despite its unanimous rejection by every state.” Judge O.H. Eaton, Jr. (pictured), one of the amicus judges, criticized judicial override decisions in a November 17 Bloomberg Law commentary, writing that they “were not guided by any meaningful standards about when or how to bypass the jury’s verdict.” Jurors “are the best deciders of the facts in criminal trials, and especially in death penalty trials,” Eaton said.

Judge Eaton also noted the racial disproportionality of judicial override rulings, noting that “55% of the people sentenced to death by judicial override have been African American, and a full 75% were convicted of killing White victims. This makes judicial override one more aspect of the death penalty in America tainted by the specter of racial bias,” he wrote.

Miles’ commentary described the rigorous deliberations that the engaged in in McMillan’s case. “The faithful work of a jury should not be cast aside cavalierly,” he wrote. “Juries are the voice of the community and its values. As important, juries provide a check on the government’s power to take away a citizen’s life and liberty. Nowhere is the jury’s role more important than in a death penalty case when a person’s life is on the line.”

Moreover, Miles said, judicial decisions to override the jury’s vote are personally demeaning. “Mr. McMillan’s petition to the Supreme Court understandably focuses on the harm that judicial override caused him,” Miles wrote. “But there’s harm to the citizens who serve on juries, too. The legacy of judicial override stamps some juries with a mark of inferiority, as though we are too emotional or incompetent to do our jobs.”

Only four states — Alabama, Delaware, Florida, and Indiana — have ever practiced judicial override, allowing judges to impose a death sentence even if the jury recommended life. In 2017, Alabama became the last state to abandon the practice, but death-row prisoners sentenced by judicial override continue to face execution in the state.