Last year, when a jury spared a man twice convicted of sexual assault and murder from the death penalty, presiding Judge Charlie Graddick was quick to suggest he thought they’d made the wrong decision.

“If it was appropriate, Alabama would have allowed me to override your recommendation and maybe sentence him to death,” Graddick said of Carlos Edward Kennedy. “I could do that today, but I know we’d be right back here in the same shape as we are now.”

Graddick was referring to state judges’ ability to override a jury’s recommended sentence in cases involving capital punishment. When he made those statements last May, Alabama was one of only two states that still allowed the practice.

Today, it’s the only the state that still allows judicial override, but a pair of bills in the state Legislature are looking to remove that provision — one sponsored by Republican Sen. Dick Brewbaker of Montgomery and the other being pushed in the House by Rep. Chris England, D-Tuscaloosa.

Though similar legislation has been filed in previous years, the fact that 2016 saw similar laws declared unconstitutional in Delaware and Florida has one of the bills, Brewbaker’s SB16, enjoying at least some bipartisan support from local lawmakers and prosecutors alike.

Mobile County District Attorney Ashley Rich.

“Early in my career, I argued for override in several capital cases, but I’ve come to realize we don’t need it. It tends to cause so many additional problems on appeal in capital cases,” Mobile County District Attorney Ashley Rich told Lagniappe. “Lord knows there’s already plenty of reasons why they’re appealed, but to have the sentence overridden in that appeal is even more dangerous now that Alabama is the only state that still permits judicial override.”

Death penalty opponents have particularly targeted states that have permitted judicial override in the last several years, including the Equal Justice Initiative, a Montgomery-based nonprofit that strives to end “mass incarceration and excessive punishment” in the United States.

Data compiled by EJI shows that, since 1976, Alabama judges have overridden jury verdicts 112 times — 91 percent of which changed recommended sentences of life in prison to the death penalty. Today, roughly 20 percent of current inmates on death row got there by a judicial override, which EJI claims is the “primary reason” Alabama has the highest rate of death sentences per capita.

Addressing the Senate Judiciary Committee about his bill last week, Brewbaker took things even further when he suggested there could be political pressure on judges to hand down death sentences, adding that 12 of 23 overrides recorded between 2005 and 2015 occurred in judicial election years.

“There’s no way to take politics out of politics,” he told the committee. “It’s like taking the wet out of water. It can’t be done.”

Judicial override cases in Mobile County from 1979-2016. [Jason Johnson]

Locally, Mobile County has the second highest recorded number of judicial overrides in Alabama death penalty cases. Of the 113 overrides recorded since 1976, 17 took place in Mobile County, compared to 13 in Montgomery County and just five in Baldwin County.

It’s worth noting that some of those cases in Mobile County overrode recommended sentences for defendants that were tried multiple times, such as Phillip Tomlin, who was sentenced to death by three separate judges in 1990, 1994 and then again 1999.

However, in the past four decades, only one local judge has used judicial override to downgrade a jury’s recommendation. Circuit Court Judge Michael A. Youngpeter overrode those death sentences for Michael Berry in 2012 and for Saraya Atkins last December, both of whom were convicted of capital murder and both of whom were prosecuted by Rich’s office.

Instances like those are why Rich said the issue of judicial overrides encompasses more than people’s personal positions on capital punishment; it also deals with the integrity of a jury’s decisions.

“I was extremely upset with Judge Youngpeter in those cases, and I was very public about it. That’s two sentences that he’s overruled for no reason other than he didn’t believe they were deserving of the death penalty,” she said. “I believe that juries usually do the right thing for the right reasons, and we shouldn’t seek to overrule anything that a jury does in any case.”

So far, Brewbaker’s legislation has cleared the judiciary committee, where it passed with help from several Democrats including Sen. Vivian Figures, D-Mobile. However, the bill wouldn’t have passed through committee had Sen. Cam Ward, R-Alabaster, not broken from his fellow Republicans to support removing an override provision he described as “immoral and wrong.”

Sen. Vivian D. Figures (D-Mobile).

When asked about some of the additional support removing the override provision has seen this year, Figures pointed to the death penalty statutes in Florida and Delaware that were declared unconstitutional over the past year.

“Unfortunately, sometimes that’s what it takes for Alabama to get in line with what other states are doing,” Figures said. “I have always been opposed to the death penalty anyway, but that’s supposedly why we have juries — to make the decisions in those cases.”

On the other side of the aisle, Sen. Rusty Glover, R-Mobile, told Lagniappe last week he was “pretty much in favor” of the bill because of Rich’s support. Before the session, Sen. Trip Pittman, R-Fairhope, said he was open to the discussion but added that he’d like to see a debate about situations where an override of a jury’s recommendation might be appropriate.

“I fully support the death penalty, but we do to need to look at judicial override,” Pittman said. “I think it may provide an opportunity to combine some of the alternate forms of delivering the death penalty as part of a larger discussion or debate.”

Though he didn’t cite it specifically, a bill Pittman filed in 2016 made national headlines due to provisions that, had it passed, would have authorized Alabama to carry out state executions by firing squad.


Alabama judicial override cases by county 1979-2012