Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Monday, April 03, 2006

Executing From the Bench

The Moore-ons frequently complain about judicial tyranny. It is undemocratic, they say, for a judge to prohibit prayer in schools, or to forbid executing children. If the people want to acknowledge god, or put twelve year olds to death, no judge can prohibit them.

I won't criticize that argument here. I only ask how it applies to Alabama's capital sentencing scheme. As pointed out in this article, in Alabama death penalty cases the jury makes a sentencing recommendation, which the judge is free to accept or reject. According to the article, in about one quarter of death sentences the judge rejected a life recommendation. In other words, the judge sentenced the defendant to death even though a group of twelve ordinary citizens who heard the same evidence as did the judge decided that life was the appropriate sentence.

Judicial tyranny? If not, how is entrusting a judge to overide a jury's sentence different than entrusting a judge to declare laws unconstitutional?