Advised that the Alabama House Judiciary Committee was going to hold a hearing Wednesday, April 17, on HB 27, I prepared to speak in favor of this bill that would give retroactive effect to a 2017 law that eliminated judicial override of a jury recommendation for life imprisonment in cases of capital murder.

That sounds like nothing but legal technicalities — unless you are one of 33 people sitting on Alabama’s death row because a judge overrode a jury’s unanimous recommendation for life imprisonment without parole.

(Pexels)

Alabama law provides that, when a jury has convicted a person of capital murder, the court will then hold a subsequent hearing in which the jury will consider aggravating and mitigating factors, determining whether the punishment should be death or life without parole. Until 2017 a judge could override the jury on his own initiative, changing a death sentence to life without parole, or a life without parole sentence to death. Only a few states allowed judges to override juries like this, and Alabama was the last to abandon the practice.

In a 2017 bipartisan effort, Alabama implemented a bill eliminating the judicial override. Now, if the jury chooses life without parole, the judge cannot change that sentence.

But the 2017 bill did not make the change retroactive. There are still 33 persons who await the death penalty (34, until the execution of Kenneth Smith on Jan. 25, 2024), even though their juries unanimously recommended life without parole. HB 27, sponsored by Rep. Chris England (D-Tuscaloosa), would make the change retroactive and applicable to these remaining 33.

The Judiciary Committee hearing did not allow citizen testimony, and unlike many hearings I’ve observed, this one didn’t dissolve into emotion and name-calling. England presented the reasons for his bill rationally, answering questions accurately and effectively.

I thought HB 27 might draw the Republican support it needed to pass. But then the debate shifted. One legislator noted that three of the 33 cases of judicial override arose in his district, and he described the grisly murder details, suggesting that judges may have good reasons for overriding jury sentences. England calmly responded that in each of those cases, the juries were fully informed of all of the facts known to the judge, and nevertheless unanimously voted for life without parole.

Another legislator supported the 2017 change, but said that those cases before 2017 were handled according to the law as it read at that time, and therefore he could not support making the change retroactive. “But we abolished the judicial override in 2017 because we as a society concluded it was unfair and improper,” I thought. “If the law was unfair in 2017, it was unfair before 2017 as well.”

The Committee eventually defeated the bill largely on party lines. I left disappointed, because as a Christian constitutionalist I believe some measures of criminal justice reform are appropriate. If HB 27 had clearly stated that the defendant’s death sentence could be reconsidered rather than automatically overturned, it might have had a greater chance for passage.

Yes, the Old Testament authorizes capital punishment for murder (Genesis 9:6), and Romans 13:1-4 confirms that the judicial power to punish criminals applies in the New Testament era. But in an interesting 5th-century exchange of letters between Augustine and a Christian judge named Macedonius, Augustine suggested that Old Testament penalties appeared to be mandatory, but in the New Testament era there was room for clemency, especially in cases of repentance.

Also, the Old Testament required two or three witnesses (Deuteronomy 19:15) to convict, and there were strict penalties for perjury (Deuteronomy 19:16-21). Today, when so many convictions are obtained by the cooperation of accomplices who have been promised immunity or lesser sentences in return for their testimony, I’m not sure today’s verdicts have the same guarantee of accuracy.

Additionally, I oppose judicial override because of my high view of the jury’s role in our criminal justice system. A revered institution of the common law at least as early as AD 1297, the Framers enshrined the jury in Article III, Sec. 2 of the Constitution, fleshing out the details in the Sixth Amendment, because they saw the jury as the people’s check upon judicial tyranny and misconduct.

“Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary departments, I would say it is better to leave them out of the Legislative,” Thomas Jefferson wrote. “[T]he common people … should have as complete a control, as decisive a negative, in every judgment of a court of judicature” as they have in the legislature, John Adams observed. This view was nearly universal; Federalists saw the jury as “a valuable safeguard to liberty,” while Antifederalists viewed the jury as “the very palladium [outer wall of defense] of free government.” In colonial times, and in the early days of our republic, juries often passed sentences as well as verdicts. They often decided questions of law as well as questions of fact and possessed the power of jury nullification (refusing to follow the instructions of a judge).

Although I would not say this with absolute certainty, I think a strong argument can be made that the defendant’s right to a jury in Article III, Sec. 2, and in the Sixth Amendment includes the right to not only have the jury determine guilt or innocence, but also the right to have a jury determine the sentence as well. Nothing in the Constitution limits that right to the guilt-or-innocence phase of the trial.

Christian conservative constitutionalists support law and order, believing government has a duty to punish crime. But law and order also means the government must follow the law, and the rights of innocent and guilty defendants must be zealously defended, because a violation of the rights of one leads to violations of the rights of all.

Bills in the Legislature sometimes take years, experiencing setbacks before they finally pass (often this is a good thing). I hope England will renew his bill next year, and I hope Christians, constitutionalists, conservatives, and Republicans will do more than give it a knee-jerk negative.

“Retroactivity of judicial override” seems like legal mumbo-jumbo, but the lives of 33 prisoners (who, let us not forget, were created in the image of God) hang in the balance.

Colonel Eidsmoe is Professor of Constitutional Law for the Oak Brook College of Law (obcl.edu) and Senior Counsel for the Foundation for Moral Law (morallaw.org). He can be reached for speaking engagements at eidsmoeja@juno.com.

Article originally posted April 24, 2024, on 1819 News. Used with permission.