Double Jeopardy In Alabama, a judge can override a jury that spares a murderer from the death penalty.

The title of this post is the title to a long article in The New Yorker. See here. A friend of this blog suggested that I read it, and I am enormously grateful for the suggestion. While it will take you some time, I strongly encourage you to read it as well.

paige-williams-2014-150x150The piece is wonderfully written. Indeed, and whether intended or not, it is the best example of legal realism I have read in a long time.

The author is Paige Williams, an associate professor at the Missouri School of Journalism. Among other accomplishments, Ms. Williams is the former editor of Nieman Storyboard, the online narrative journalism publication of the Nieman Foundation for Journalism at Harvard. She holds an MFA, in fiction, from Columbia University. Her narrative nonfiction book “The Dinosaur Artist,” based on a New Yorker story, will be published, by Hachette, in fall 2016.

I wish I could write like Ms. Williams. In fact, I would sell what little remains of my soul to acquire that talent.

As for the legal issues raised by the article, I will leave that to mostly to you. What I will say is that electing judges, and then allowing judges to impose the death penalty after juries have decided against it, hits my nostrils as a particularly toxic brew.

I am interested in your thoughts, particularly if you are from Alabama. I would love to hear your views on the legal issues and, of equal importance to me, the writing of Ms. Williams.


*The federal system allows me to use acquitted conduct to sentence someone, although I don’t remember ever doing so. That said, having been given life tenure, I have no incentive to curry favor with those who vote with their viscera rather than their prehistoric brains. Nor do I need to worry about the leftist Wobblies who, spouting utter nonsense, populate, and parade about, college towns like Lincoln.


14 responses

  1. RGK,
    It scares the hell out of me that a single human can decide whether another human can live and die. That seems to go against everything I know about the death penalty system in the United States.

    Given your own abilities as a writer, your compliments to her are high indeed. I’ll keep an eye out for more of her writing.


  2. The article by Professor Williams parallels my experiences in capital cases – namely, that DP-qualified juries are predisposed to convict BUT if they have doubts regarding guilt, they recommend LWOP..

    Very interesting that the Judge in this case also had his doubts but imposed death anyhow.

    Also – how can any attorney accept a capital case (guilt OR penalty phase) without having any experience in capital cases? Capital cases are a whole ‘nother set of challenges that inexperienced attorneys just are not qualified to approach.

    Lest anyone believe that the attorneys have little effect, let me tell you about Philadelphia.

    Philly has a special division of the Public Defender that handles nothing but capital cases (until recently, the Philly DA initially prosecuted all murder 1’s as capital). Since its inception in approximately 1990, the division has never had a client sentenced to death. This despite the fact that the division handles the worst, most horrific cases imaginable.

    Many of the death row inmates in Pennsylvania are from cases emanating from Philly, and many are from the poverty level. In each case, the inmate was represented by court-appointed counsel instead of the special division of the PD.

  3. My friend, Russ, forgot to mention that for years the private Philadelphia bar resisted allowing the Defender Association to handle capital cases, despite its widely acknowledged expertise at handling all other kinds of criminal cases.

    Matt Pettigrew

  4. Judge, Wobblies, are you now streaming Joe Hill instead of dreaming of sentencing statistical convicts?

  5. repenting lawyer,

    From Joe’s Last Will and Testament,

    My will is easy to decide,
    For there is nothing to divide.
    My kin don’t need to fuss and moan,
    “Moss does not cling to a rolling stone.”

    My body? Oh, if I could choose
    I would to ashes it reduce,
    And let the merry breezes blow,
    My dust to where some flowers grow.

    Perhaps some fading flower then
    Would come to life and bloom again.
    This is my Last and final Will.
    Good Luck to All of you,
    Joe Hill


  6. What Alabama allows is an abomination. That juror who asked why jurors are put through the exercise of a toothless sentencing recommendation had exactly the right question. The Alabama practice makes a mockery of the jury trial right.

    And we know, everyone who thinks fairly about it knows, that no one has ever lost an election because she imposed a death sentence. But we know that Rose Bird lost her seat on the California Supreme Court because she voted to reverse too many. And we know that Michael Dukakis’s answer on the death penalty went a long way to ensuring that he would not become President.

    Here in Ohio, where all judges and justices are elected, we have judicial override only of a death sentence for life. If the jury votes for death, the judge can impose one of the three life sentence options. If the jury votes for one of the three life options, the judge must impose that specific sentence. Of the several hundred death sentences voted by juries here, there have been eight judicial overrides. Each is accompanied by an explanation, and they make fascinating reading. (One judge pointed to the youth of the offender as among the reasons for the override; the youngster was 35!)

    Less than a week before the election this year, the Ohio Supreme Court affirmed a death sentence by a 4-3 vote (State v. Thompson). Two of the justices in the majority were on the ballot, running to hold their seats in contested elections. Both ran as law-and-order, tough-on-crime conservatives. Thompson’s lawyers asked the court to rehear the case and asked that those judges recuse themselves since their votes look like campaign statements rather than reasoned judgment. The two refused the recusal requests.

    We also allow capital trial either to a jury or to a panel of three judges. However, a person who chooses to plead guilty in order to accept responsibility for the crime is required to have his sentence determined by a panel. State law does not permit a guilty plea to a jury in a capital case or a plea to a panel and then a jury for the sentencing phase. Every death penalty state, it seems has at least one provision that is fundamentally unfair/unreasonable/unconscionable.

    I’ve tried capital cases. I’ve appealed them. I’ve done capital habeas work. I’ve never put anyone on death row, and I’ve gotten some off. I’ve also had clients executed. Judges who stand for election or seek preferment have every incentive to vote for execution or affirm death sentences. They don’t always do that, of course. But the risk, and the appearance of impropriety, is always present.

  7. Judge:

    Acquitted conduct and relevant conduct sentencing has always troubled me. The case of Antwuan Ball (DC Circuit) comes to mind – the guy was acquitted of 18 counts, found guilty on one count of selling $600 of crack and sentenced to 18 years in prison on that basis:

    You say you haven’t used acquitted sentencing, but what about relevant uncharged conduct? I see no difference to be honest but that’s at the heart of the sentencing guidelines now isn’t it? Relevant conduct can be the tale wagging the dog at times.

  8. Anon.,

    Relevant conduct is, to me, materially different than acquited conduct when it comes to sentencing. Relevant conduct is the backbone of truthful sentencing. That said, relevant conduct can be a significant problem, particularly in drug conspiracy cases that span a long time period and require the jury to determine quantity. I take care to carefully instruct in that situation.

    Thanks for your engagement. All the best.


  9. It is not only drug cases – it can happen in cases where someone is convicted of bank or credit card fraud but being sentenced on the basis of an uncharged murder. See United States v. Fitch, 659 F.3d 788, 790 (9th Cir. 2011). Or where a defendant is convicted of one fraud scheme, but sentenced on the basis of multiple fraud schemes and so on (there is too many cases to pick from in this instance). Or where a defendant is convicted of mail fraud, but actually being sentenced for an overdose by one of his clients. See Zhang v. United States, 401 F.Supp.2d 233 (EDNY 2005).

    In short though: isn’t punishing someone on the basis of relevant conduct (established only on the basis of a preponderance of the evidence) akin to punishing bad character (that’s a point made by Richard S. Frase)?

    I have read elsewhere on your blog that you are a self-identified utilitarian with a dose of retribution. Relevant conduct can fit neatly within a utilitarian framework but it doesnt really “gel” within a retributive framework; retributivism doesnt permit sentencing on the basis of bad character or acts that dont lead to a conviction. (You may dispute that but the source is: Richard S. Frase, Prior-Conviction Sentencing Enhancement: Rationales and Limits Based on Retributive and Utilitarian Proportionality Principles and Social Equality
    Goals, in PREVIOUS CONVICTIONS AT SENTENCING: THEORETICAL AND APPLIED PERSPECTIVE 122 (Julian V. Roberts & Andrew von Hirsh eds., 2010). How do you reconcile the two when you sentence on the basis of relevant conduct (forget the jury; assume the defendant plead guilty but the PSR contains information about uncharged murders, or frauds, or criminal conduct that hasn’t been formally charged, or in a more extreme case where the PSR or Government sentencing memorandum contains allegations of uncharged criminal conduct where the statute of limitations has long since expired).

    What’s your take? What is your academic view on this? I have given you a few examples and I enjoy your posts.

    And, also, what exactly underpins the Sentencing Reform Act (3553(a))? Utilitarian goals or retributive goals? I have read that it is a “mix” of everything and that there doesn’t appear to be a consensus and I wish you would write about it a bit more!

    Thanks in advance.

  10. Anon.,

    Sorry for my failure to reply earlier. If you read 18 U.S.C.§ 3553 you will see every possible sentencing theory included in the statute. Therefore, I mix, match and combine (the utilitarian and retributive) because I think that is the right thing to do. The statute gives me no direction.

    All the best.


%d bloggers like this: