MONTGOMERY — A bill that would ban Alabama judges from imposing the death penalty against the wishes of a jury narrowly survived a vote in a state Senate committee Wednesday.
The Senate Judiciary Committee voted 5-3 in favor of the bill, with committee chairman Cam Ward, R-Alabaster, casting the final, deciding vote.
"Judicial override is constitutional," Ward said. "That being said, we’re the last state ... it may be constitutional but it's immoral and it's wrong."
Alabama is the only state that allows judges to sentence a capital murder defendant to death even if a jury recommends life in prison. Similar provisions in Florida and Delaware were struck down by federal courts, on the grounds that a judge's override violates the right to trial by jury. Alabama's capital sentencing system has survived legal challenges so far.
Alabama now has 183 inmates on death row, more than any other state except California, Texas and Florida. Opponents of judicial override say Alabama's practice of electing judges in partisan contests gives judges added incentive to choose death sentences, in order to appear tough on crime.
"I'm not saying judges are bad people," said Sen. Dick Brewbaker, R-Montgomery, sponsor of the judicial override bill. "I'm saying they're human people."
Brewbaker said election-year pressure affects elected officials' decision-making even when they're not aware it does. He said half of judicial overrides ending in a death sentence take place in election years.
Stephen Stetson, a spokesman for the group Alabama Arise, told senators judicial override was "a practice from an earlier era" designed to empower judges to lessen sentences in an age of lynch mobs. He said it's rarely used to soften sentences now.
Assistant Attorney General Thomas Govan noted that override was used in a famous case of racial violence. When Klansman Henry Hays was convicted of the 1981 murder of black Mobile resident Michael Donald, he said, the jury recommended life — but the judge ordered Hays to be executed.
Govan said override is sometimes used to lessen a verdict from death to life imprisonment. Brewbaker disputed that observation, saying he looked at judicial overrides between 2005 and 2015, and found 23 times judges rendered a death sentence — with no overrides to give an inmate life in prison.
In 2013, Calhoun County Circuit Judge Brian Howell sentenced Joshua Eugene Russell to death over a jury’s recommendation of life in prison. Russell had been convicted of the 2011 murder of Anniston police officer Justin Sollohub; he remains on death row at Holman Prison in Atmore.
Sen. Phil Williams, R-Rainbow City, said it was a mistake to bring the issue of election year pressure into the conversation. Judicial overrides happen in both election and non-election years, he said, and Alabama's death penalty system hasn't been rejected by the courts.
"I'm concerned that perhaps this is an argument we don't need to have," he said.
Sen. Rodger Smitherman, D-Birmingham, said prosecutors get "two bites at the apple" before a defendant is sentenced in a capital case. They go before a jury in both the trial and sentencing.
"I don't see any reason why, after 12 people that were picked by both sides hear the evidence twice, then we should allow a judge to wipe that out," he said.
Ward cast the final vote in the roll-call vote, making his "yes" a tiebreaker. (Without it, the bill would have failed with a 4-4 vote.)
The bill heads to the full Senate for consideration.