Using the Death Penalty to Get Re-Elected


While most of the country was riveted by the verdict in the Casey Anthony case — invoking the O.J. trial and decrying what many regarded as an unjust verdict — the Equal Justice Initiative (EJI), a nonprofit criminal-defense and civil rights law and advocacy firm, released yet another in a series of reports that clearly demonstrate that the criminal-justice system, especially in the South, is broken and dangerously on the brink of illegitimacy. 

The EJI's latest report (pdf) focuses on a little-known practice, permitted in only three states: judicial override. Florida, Delaware and Alabama allow judges to overturn jury-sentencing verdicts in death penalty cases. There are no individuals on death row in Delaware as a result of judicial override, and no judge has imposed a capital punishment override in Florida in the last 12 years. But according to the EJI report, judicial override in Alabama is almost always exercised to impose the death penalty when a jury has recommended life in prison. In fact, although judges have the authority under Alabama law to override a jury's sentence of death and to instead impose a life sentence, 92 percent of judicial overrides are used to order death. 


According to EJI estimates, there are 40 men on death row in Alabama who were placed there after a judge overrode a jury's sentence of life in prison. Given that Alabama imposes few obstacles to the imposition of the death penalty by juries (a death sentence does not require a unanimous verdict in Alabama — the agreement of 10 of 12 jurors is sufficient), and that jurors opposed to capital punishment are excluded from serving on Alabama juries, judicial overrides to impose death are particularly alarming. But these judicial overrides have not provoked charges of "activist judging," confirming that the charge of judicial activism has simply become right-wing shorthand to describe a judge whose independence gets in the way of the conservative agenda.

Among the most disturbing but unsurprising findings in the report are that the judicial override in Alabama is almost always imposed when a jury has given a defendant life in prison for the murder of a white victim. According to the report, in Alabama 75 percent of death overrides involve a white victim, even though only 35 percent of homicide victims in Alabama are white. This coincides with long-standing studies that demonstrate the death penalty is imposed most often when the victim of the homicide is white.

Yet another devastating revelation is the evidence that judges override juries to impose the death penalty more often in a judicial election year. If one plus one still equals two, this is among the most searing indictments of judicial elections (still used in 38 states). It suggests that in some instances, judges, feeling the pressure of upcoming election contests, may either consciously or unconsciously make decisions that will shore up their "tough on crime" bonafides. 

It is perhaps no coincidence that in Delaware — where judges are appointed — there are no convicts on death row as a result of judicial override. A decade-old study of Pennsylvania judges suggests that there is a positive correlation between harsher sentences imposed by judges against criminal defendants and the proximity of an upcoming judicial election.


The existence of such a correlation in the imposition of the ultimate sentence — death — is a devastating indictment of judicial elections. In fact, if judges are condemning convicts to death and overriding the judgment of the jury to improve their chances for re-election, we are looking at a system that can no longer rightly use the word "justice" to describe itself.

To understand the toxic brew of race, the death penalty and judicial elections, one need only read the words of one judge cited in the report, who substituted a death sentence over the jury's recommendation of life in prison on a white defendant because if he didn't impose the death-sentence override, the judge said, "I would have sentenced three black people to death and no white people."


The EJI report is particularly disturbing when read as a companion to the report the organization issued last year that showed the consistent exclusion of blacks from Southern juries in criminal cases. In that report, Alabama once again held a place of special distinction.

Judges ignoring juries to impose death sentences on defendants who kill white victims? Blacks excluded from serving on Southern juries? The charges are lurid and retro but well-documented and devastating. They suggest — along with the now well-known cases of prosecutors framing black criminal defendants for murders they did not commit and withholding exculpatory information from defense counsel, the deaths of unarmed black men at the hands of police officers, racially disparate stop-and-frisk police practices and unconstitutional conditions of confinement in our nation's prisons — that our criminal-justice system is in real trouble. 


Where are the congressional hearings on the findings unearthed in these reports and cases? Where is the U.S. Commission on Civil Rights, which was specifically empowered to "study and collect information relating to discrimination or a denial of equal protection of laws under the Constitution because of race, color … or in the administration of justice," and to engage in the kind of long-term fact gathering that this very serious problem requires?

Without further delay, we need a federal inquiry into the findings of the EJI report. But we also need a broader, more comprehensive examination of our criminal-justice system and the persistent and pernicious role that race continues to play in how justice is meted out, from encounters with the police to conviction and sentencing. 


Whether the inquiry comes from Congress or the Commission on Civil Rights, or even from the Department of Justice, something must be done at the federal level. The U.S. can no longer turn a blind eye toward an uncomfortable but painfully obvious truth: that the legitimacy of our justice system is in deep peril. Outrage about the Casey Anthony verdict would be better directed toward addressing the widespread injustices in our criminal-justice system that have been amply documented by EJI and others, rather than a myopic focus on one admittedly disturbing case served up by television networks for our entertainment.

Sherrilyn A. Ifill writes about the law for The Root.

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