Jurors, Judges Urge Supreme Court to End Judicial Override of Life Sentences in Death Penalty Cases

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.