What to Know: Sentencing Practices and the Death Penalty

• Only three states — Alabama, Delaware, Florida — per­mit­ted judi­cial over­ride, with the prac­tice rou­tine­ly occur­ring only in Alabama. Alabama was the last state to abol­ish this prac­tice, doing so in 2017, but it has con­tin­ued to exe­cute defen­dants who were sen­tenced to death by judges, not juries, even though they would not be sen­tenced to death if tried today. 

• Alabama and Florida are the only two states that allow non-unan­i­mous death sen­tences today. Alabama requires 10 out of 12 jurors to impose a death sen­tence, while Florida requires only 8 out of 12 jurors. 

• Of Alabama’s six death-row exon­er­a­tions, three involved judi­cial over­ride, two oth­ers involved non-unan­i­mous jury ver­dicts for death, and the sixth waived jury sen­tenc­ing. In Florida, 28 of the state’s 30 death row exonerees were either sen­tenced to death by a non-unan­i­mous jury rec­om­men­da­tion or by judi­cial over­ride. Florida has the great­est num­ber of death-row exon­er­a­tions in the nation (30). 

Current Developments

Judicial Override

On April 11^th, 2017, Alabama became the last U.S. state to elim­i­nate judi­cial over­ride. Senate Bill 16, spon­sored by Senator Dick Brewbaker (R‑Montgomery), pro­hibits tri­al judges from over­rid­ing jury rec­om­men­da­tions in death penal­ty cas­es. This bill kept intact the state’s prac­tice of per­mit­ting non-unan­i­mous death sen­tences so long as at least ten jurors vote to impose it.

Since the bill did not have a retroac­tive effect, Alabama has con­tin­ued to exe­cute defen­dants who were sen­tenced to death by judi­cial over­ride, even though they could not be sen­tenced to death the same way if tried today. In the 2024 leg­isla­tive ses­sion, Representative Chris England (D‑Tuscaloosa) spon­sored House Bill 27, which would have retroac­tive­ly applied the judi­cial over­ride ban and resen­tenced 33 death-sen­tenced defen­dants to life in prison. Rep. England’s pro­posed leg­is­la­tion was reject­ed by a 9 – 4 vote. Rep. England pro­posed sim­i­lar leg­is­la­tion, HB 70, for the 2026 ses­sion of the Alabama Legislature, in addi­tion to HB 76 to amend the state Constitution to ban cap­i­tal pun­ish­ment. Neither of these bills passed.

As of April 2017, when the ban on judi­cial over­ride was enact­ed, 33 indi­vid­u­als, mak­ing up more than 20% of the state’s death row pop­u­la­tion, had been sen­tenced to death by judges who over­rode a jury’s life ver­dict. Since then, sev­er­al Alabama defen­dants have unsuc­cess­ful­ly chal­lenged the con­sti­tu­tion­al­i­ty of their death sen­tences. On January 25, 2024, Alabama exe­cut­ed 58-year-old Kenneth Smith, whose jury vot­ed 11 – 1 to sen­tence him to lifein 1988. Mr. Smith was exe­cut­ed using nitro­gen gas after sur­viv­ing a botched lethal injec­tion attempt over a year ear­li­er. Jeffery Lee, who Alabama intend­ed to exe­cute using its nitro­gen gas pro­to­col until a fed­er­al court“permanently enjoined” its use, was also sen­tenced to death by a judge who over­rode his jury’s 7 – 5 vote for life. Two jurors from his tri­al sub­mit­ted videos for Mr. Lee’s clemen­cy cam­paign, stat­ing that they are frus­trat­ed that the judge over­rode their decision.

In a July 7, 2026 op-ed, for­mer Chief Justice of the Alabama Supreme Court and Republican can­di­date for U.S. Senate Roy Moore expressed his sup­port for mak­ing Alabama’s repeal of judi­cial over­ride retroac­tive. ​“I sup­port the death penal­ty and will con­tin­ue to do so, but only when giv­en by a jury, which should have the last word,” he wrote. He con­tin­ued, ​“If it was wrong in 2017 for a tri­al judge to over­turn a jury rec­om­men­da­tion of life with­out parole, it is wrong to con­demn 26 indi­vid­u­als who were denied that right pri­or to 2017.” 

Non-Unanimity

Alabama and Florida are the only two states in the nation that still per­mit non-unan­i­mous death sen­tences. Alabama requires 10 out of 12 jurors to impose a death sen­tence. Florida cur­rent­ly has a low­er thresh­old, requir­ing only eight jurors. 

Florida’s sen­tenc­ing laws have changed over the years. On January 12, 2016, in an 8 – 1 deci­sion in Hurst v. Florida, the U.S. Supreme Court held that Florida’s cap­i­tal sen­tenc­ing statute vio­lat­ed the Sixth Amendment. At the time, the state required a jury to make a sen­tenc­ing rec­om­men­da­tion — on which only a bare major­i­ty of jurors had to agree — to a judge who would lat­er ​“hold a sep­a­rate hear­ing and deter­mine whether suf­fi­cient aggra­vat­ing cir­cum­stances exist­ed to jus­ti­fy impos­ing the death penal­ty.” In October 2016, the Florida Supreme Court declared the state’s sen­tenc­ing law uncon­sti­tu­tion­al and said una­nim­i­ty was required. In March 2017, the Florida leg­is­la­ture amend­ed its cap­i­tal sen­tenc­ing law to com­ply with the Florida Supreme Court’s deci­sion apply­ing Hurst. In 2020, a new­ly appoint­ed major­i­ty on the Florida Supreme Court retract­ed the unan­i­mous jury require­ment. In April 2023, the Florida leg­is­la­ture passed a new non-una­nim­i­ty law, SB 450, requir­ing only 8 jurors to vote in favor of a death sen­tence in order for the judge to impose one. This remains Florida’s law today.

Illustrative Cases

In 2007, Michael James Jackson was sen­tenced to death by a Florida jury who vot­ed 8 – 4 for death. After Hurst, Mr. Jackson was award­ed a new sen­tenc­ing hear­ing for September 2019, which was derailed due to Hurricane Dorian and lat­er the COVID-19 pan­dem­ic. By the time his resen­tenc­ing occurred, the state’s non-una­nim­i­ty law had gone into effect and anoth­er 8 – 4 vote for death put Mr. Jackson back on death row, where the same vote a year ear­li­er would have result­ed in a life sen­tence. Mr. Jackson remains on death row today. 

On November 20^th, 2025, Richard ​“Malik” Randolph, or Malik Abdul-Sajjad, was exe­cut­ed in Putnam County, Florida, after being sen­tenced to death by an 8 – 4 jury vote. Mr. Randolph was a vet­er­an, but his jury did not hear about his hon­or­able mil­i­tary ser­vice, his child­hood trau­ma, or how these fac­tors inter­sect­ed with his substance abuse.

Historical Perspective

After the bifur­cat­ed sys­tem in cap­i­tal tri­als was approved in the 1976 deci­sion of Gregg v. Georgia, most state statutes required unan­i­mous jury ver­dicts to impose a death sen­tence. Of the 34 states that have autho­rized cap­i­tal pun­ish­ment at any point in the mod­ern era, Alabama, Delaware, and Florida were the only states where judi­cial over­ride was per­mit­ted. Florida’s for­mer judi­cial over­ride law required the tri­al judge to give ​“great weight” to the jury rec­om­men­da­tion, where­as Alabama’s statute mere­ly required the judge to ​“con­sid­er” the jury’s ver­dict. Delaware had a sim­i­lar over­ride statute to Florida, where over­ride was per­mit­ted only if a stan­dard was met. Alabama did not have mean­ing­ful stan­dards gov­ern­ing judicial override.