Death penalty cases are almost always legally complex, but many are also morally simple and straightforward. Occasionally such moral clarity breaks through the morass of legal maneuvering associated with those cases.
Kenneth Smith, whom Alabama plans to execute using lethal injection on November 17, is one such case.
He faces death even though a jury that heard his case voted 11-1 to recommend that he be sentenced to life in prison without parole. That alone should raise suspicion that something is amiss in the Smith case, but there is more.
He faces execution because, at the time he was sentenced, Alabama was one of three death penalty states (the other two were Delaware and Florida) that allowed judges to override jury decisions in death cases.
Judicial override meant that elected judges could make their own determination whether the aggravating circumstances in a death case outweighed the mitigating circumstances. Judges could impose a death sentence on the basis of their own idiosyncratic judgment.
As the Alabama law made clear, “[W]hile the jury’s recommendation concerning [the] sentence shall be given consideration, it is not binding upon the court.”
Judicial override was initially designed to prevent the unjustified imposition of the death penalty. However, in Smith’s case, and in many others, it was used arbitrarily to perpetrate injustice, not prevent it.
Let’s look at what the jury of his peers found when it considered the evidence presented during Smith’s 1996 sentencing trial.
According to a cert. petition that Smith filed with the Supreme Court in October 2021, the jury in his case “found one aggravating circumstance (murder for pecuniary gain).”
The jury also determined that there were several mitigating circumstances that had been proven by Smith’s defense: “(1) Mr. Smith’s age (twenty-two at the time of the crime); (2) he had ‘no significant history of prior criminal activity;’ (3) he ‘appeared to be remorseful for what he had done, and he gave a voluntary confession;’ (4) his ‘good conduct in jail; and in counseling others including family members;’ (5) he was ‘neglected and deprived in his early childhood;’ and (6) ‘the jury’s recommendation is a mitigating factor.’”
Eleven members of the jury determined that the mitigating evidence outweighed the aggravating evidence.
The trial judge, M. Pride Tompkins, saw things differently.
He believed that there was “a reasonable basis for enhancing the jury’s recommendation sentence” because “this was a murder for hire and the defendant had the opportunity to reflect and withdraw from his actions; that the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was not substantially impaired.”
In addition, Judge Tompkins discounted the jury’s recommendation because, in his view, jurors were unduly swayed by “emotional appeal from the defendant’s mother.”
But such emotional appeals are normal fare in the penalty phase of capital cases. In the penalty phase, the door is open for evidence and arguments that would be inadmissible in the other parts of a capital trial.
As the Supreme Court said more than fifty years ago, in the penalty phase of capital cases those who impose the sentence must consider “any aspect of a defendant’s character or record…proffered as a reason for a sentence other than death.”
Prosecutors try to stir the anger of jurors by focusing their attention on the most gruesome details of the crime a defendant committed. They often use victim impact statements to garner jurors’ sympathy for families of a murder victim.
Defense lawyers try to humanize their clients and evoke sympathy for them by emphasizing the tragic circumstances of the defendant’s life.
Slate’s Dahlia Lithwick has rightly suggested that “’penalty phase’ is simply a term of art for ‘blatant emotional manipulation,’ as both sides…(do) everything in their power to persuade the jury to vote only with their hearts.”
Judge Tompkins’ objections to such emotional appeals would matter less today than they did in 1996 because nineteen years after he sentenced Smith to die, Alabama changed its death penalty law. It ended judicial override in 2017, making it the last state to do so.
But it refused to apply the law retroactively and undo death sentences, like Smith’s, that were imposed under the very procedure it was rejecting.
The Alabama Senate sponsor of the bill that ended judicial override understood the damage done when judges substituted their own judgment for the considered judgment of a jury. He remarked that it “flies in the face” of democracy to allow a judge to impose a death sentence after the jury voted for life in prison: “We pick a jury of the community and they decide guilt, innocence, and punishment. . . . You are entitled to a trial of a jury of your peers, and that ought to apply to sentencing too.”
The House sponsor similarly explained that the judicial override “actually undermines our [jury] system, as the Constitution guarantees your right to a jury and a trial by your peers.” Abolishing the override “places the death penalty . . . where in my opinion the Constitution intends it to be: in the hands of juries.”
Long before Alabama ended judicial override the United States Supreme Court had said that the Sixth Amendment does not permit a defendant to be “expose[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.”
It later held that juries, not judges, had to make the factual findings legally required before a death sentence could be imposed. At the time, it ruled unconstitutional an Arizona statute that permitted judges, without a jury, to determine whether defendants could receive the death penalty.
In 2020 the Court had a chance to undo the injustice of executing people whose death sentences resulted from judicial override.
At that time, Calvin McMillan, another Alabama man who, like Smith, had been sentenced to death by judicial override, asked the Court to do what Alabama had refused to do in 2017 when it repealed judicial override, namely to apply the law retroactively. McMillan argued that “Experience has proven that judicial override cannot meet the Eighth Amendment’s heightened reliability requirements.” The Constitution, he said, “forbids the execution of a person sentenced to death by judicial override.”
But, without explanation, the Court refused even to hear his case. McMillan, like Smith, remains on Alabama’s death row.
While the legal rules governing retroactive application of statutes and court decisions of the kind at stake in McMillan’s and Smith’s cases are maddeningly complex, the moral principle at stake is clear and compelling.
It can be simply stated: Justice and fairness dictate that no one should be executed if they were sentenced under rules and procedures, like judicial override, that subsequently are declared unconstitutional or repudiated by the jurisdiction in which they were tried.
Several Alabama and Florida judges who had presided over trials in the era when judicial override was legal argued in an amicus brief, “Executing defendants who were sentenced to death by judicial override does not comport with this country’s evolving standards of decency and would allow the consequences of an unreliable system to continue despite its unanimous rejection by every state.”