Jefferson County Circuit Judge Tracie Todd did something unusual – she wrote an opinion striking down Alabama’s death penalty statute – which permits judicial override — as unconstitutional. Judicial override in Alabama allows judges to override a jury’s decision to give a life sentence and impose a death sentence instead. Judge Todd explained that the judicial override system was being applied liberally and unfairly in Alabama:

At present Alabama is solitary in its unbridled system of allowing judges to deviate from jury advisory verdicts in order to effect life-to-death sentence overrides. Jefferson County leads the state in total death sentences resulting from judicial overrides, with 17, according to the study, which looked at sentencing since the U.S. Supreme Court allowed capital punishment to resume in 1976 after a four-year nationwide ban.

After listing the many concerns about Alabama’s arbitrary judicial system and lack of funding, Judge Todd concludes:

The Alabama capital sentencing scheme fails to provide special procedural safeguards to minimize the obvious influence of partisan politics or the potential for unlawful bias in the judiciary. As a result, the death penalty in Alabama is being imposed in a “wholly arbitrary and capricious” manner.

Alabama Attorney General Luther Strange immediately objected, saying the death penalty statute was “constitutional.” He went beyond this anticipated commentary, however, and strongly criticized Judge Todd’s opinion. His March 10 press release, which was posted on the Attorney General website along with the 30-page opposition, defended the practice as perfectly legal:

Although recent legal developments may call into question the imposition of the death penalty under certain circumstances, the trial court’s order is indefensible. It eliminates the State’s ability to seek the death penalty for four offenders.

Judicial override has long been identified as a problem. Only a few states still allow for a judge to overrule a jury’s sentence of life and impose death: Alabama, Florida and Delaware. In particular, Jefferson County has notably had the most death sentences by judicial override since the law came into effect in 1976. A report by the Equal Justice Initiative says that 17 of the 107 judicial overrides that have occurred statewide since the law began were from Jefferson County. The report makes plain that judicial overrides significantly increase the number of death sentences – 21% of defendants on death row are there because of judicial overrides – and enhances the already glaring racial disparity.

Most importantly, Judge Todd held that Alabama’s death penalty statute was similar to that of Florida’s, which the U.S. Supreme Court struck down as unconstitutional in January in Hurst v. Florida. The Florida legislature responded by amending its statute to make the the jury’s sentencing decision binding, and moved to require that at least 10 out of 12 jurors vote for death before a judge can sentence a defendant to execution. They previous Florida statute allowed for a simple majority vote. But, to date, Alabama courts have all passed on the issue with the exception of Judge Todd.

Unfortunately, state Attorney General Luther Strange is vigorously challenging Judge Todd’s decision. This development is not surprising, given Strange’s strong support for the death penalty. He has supported legislation that would speed up the process, and pressed forward with trying to resume executions despite the questionable efficacy of the drug protocol.

Now, the Alabama Court of Criminal Appeals will have to decide whether or not to vacate Judge Todd’s decision.