By Andrew George and Aaron Rabinowitz[1a]


          Three states invest elected judges with the power to impose the death penalty despite a jury’s recommendation of life in prison.  Jury overrides are rare in Florida and Delaware[1] but a near-institution in Alabama, where one-fifth of current death row inmates arrived by judicial fiat, despite what the jury thought.[2]  An Alabama judge can impose a death sentence more easily than a directed verdict in a routine slip-and-fall case.  All he needs to do is find that the aggravating circumstances of a capital case outweigh the mitigating circumstances.[3]

          Jury overrides are regularly attacked for violating the Sixth Amendment’s right to a jury trial.  Defendants typically cite the line of federal sentencing cases from Apprendi through Booker, which collectively hold that any fact used to increase a defendant’s sentence must be found by a jury beyond a reasonable doubt.  Defendants (rightly) point out that this rule is violated when a judge supplies his own aggravating circumstances to override the jury’s life recommendation.  But this argument fails because courts (wrongly) believe that a capital conviction automatically exposes the defendant to the full range of potential punishment—including death—to begin with.           

          We aim to refresh this argument through an additional aspect of the sentencing cases.  Viewed closely, they show that not only must a jury find the existence of any enumerated factor used to increase a defendant’s sentence, including the one “built-in” to the conviction (e.g., the burglary, for murder in the course of a burglary[4]), the jury must also find the case-specific facts needed to give that factor weight, to be balanced against the mitigating circumstances in the case.  So long as a case presents any such mitigating circumstances (likely, where the jury has already recommended life), this additional fact finding is a necessary precursor to a death sentence.


          Of 34 states permitting capital punishment, 31 leave sentencing to the jury.  But in Alabama, Delaware, and Florida, a judge may override a jury’s recommended sentence and independently impose life without parole or death.[5]  To do this, a judge must first weigh the mitigating and aggravating circumstances of the case to determine whether the death penalty should be imposed.

          Jury override provisions were actually enacted to empower cool-headed judges to limit overly-harsh jury sentences.[6]  And in Delaware and Florida, that is primarily what they are used for.[7]  But things in Alabama tend to move in the other direction.  Between 1976 and 2011, 92% of Alabama’s 107 jury overrides were towards death.[8]  This is not to say that Alabama judges override juries consistently, however.  In Alabama, the odds of an override towards death depend greatly on the county in which a defendant is charged.[9]

          This article will focus mostly on Alabama, where overrides are most common.[10]  In Alabama’s judicial override process, judges weigh specifically enumerated aggravating factors against any mitigating circumstances present in the case.[11]  Typical statutory aggravators include a murder being especially heinous or cruel, likely to result in many deaths, or committed in the course of a rape, robbery, burglary or kidnapping, and many others.[12]  Typical mitigators, meanwhile, include the defendant’s age, lack of prior criminal activity, and any extreme emotional disturbance, duress, or lack of mental capacity that affected the defendant at the time of the offense.[13]

          Electoral politics strain the integrity of this weighing process.[14]  Alabama judicial campaigns often feature “tough-on-crime” boasts of the judge’s death-penalty enthusiasm.  For instance, the day after an override, reelection ads for Judge Ferrill McRae “‘touted McRae’s record on sentencing defendants to death’ and mentioned [the defendant] by name.”[15]  Circuit Judge Mike McCormick’s reelection ads stated that, “[s]ome complain that he’s too tough on criminals, AND HE IS . . . We need him now more than ever.”[16]  Another judge justified an override by stating, “If I had not imposed the death sentence, I would have sentenced three black people to death [in other, unrelated cases] and no white people.”[17]  Alabama Supreme Court Justice Kenneth Ingram even managed to turn a death sentence from his days as a circuit judge into a rhyming campaign slogan: “Without blinking an eye, Judge Kenneth Ingram sentenced the killer to die.”[18]

Sixth Amendment Challenges to Jury Overrides

          The Sixth Amendment grants every criminal defendant the right to “a jury determination [of whether he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.”[19]  Apprendi v. New Jersey established that, so long as “a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt.”[20]  The Supreme Court applied this rule in Ring v. Arizona to strike down Arizona’s capital-murder system because it permitted a judge to issue a death sentence where he found that a statutory aggravating factor existed on his own, without any jury input.[21]  The Court held that such statutory aggravating factors must be found by a jury beyond a reasonable doubt.[22]

          The Alabama Supreme Court has distinguished Alabama’s override provisions from Ring.  The difference, it held, is that Arizona’s system did not require a jury to find a single aggravating factor before a judge could impose death, whereas some of Alabama’s capital crimes have aggravating factors built-in.[23]  Thus, for example, when a jury convicts a defendant of murder in the course of a burglary, the aggravator is already established (the burglary), the defendant is exposed “to a range of punishment that had as its maximum the death penalty,”[24] and an override is permissible. 

          This reasoning was suspect from the outset.  Alabama only permits the death penalty where aggravating factor(s) outweigh mitigating factors.  If there are mitigating circumstances in a case (as there usually are where the jury has already weighed the evidence and come out in favor of life), additional aggravating factors may be needed to outweigh them and to make the defendant death-eligible.  A mere conviction for murder in the course of a burglary, for example, will rarely permit death by itself.  To justify a capital sentence, a judge will likely need to point out that a murder was especially heinous and cruel, that the defendant committed the offense for pecuniary gain, that the defendant had previously been convicted of a violent felony, and so on.[25]

          That is actually what happened in Ex parte Waldrop, Alabama’s case upholding judicial overrides.[26]  The defendant was convicted of murder in the course of a robbery—itself theoretically enough to impose a death sentence.[27]  But the court found an additional aggravator: that the murder was especially heinous, atrocious, or cruel.[28]  That was immaterial in the Alabama Supreme Court’s view, however, because “Alabama law requires the existence of only one aggravating circumstance in order for a defendant to be sentenced to death.”[29]  Perhaps so, but Alabama law also requires that aggravating factors outweigh mitigating factors before a death sentence can be imposed.[30]  So, if that aggravator was necessary to the override, Apprendi at a minimum should have required that it be found by a jury beyond a reasonable doubt. 

The Sentencing Revolution, Applied

          Timothy Ring’s felony murder conviction was not enough to make him death eligible.  Additional aggravating circumstances were needed, and those, the Supreme Court held, had to come from the jury.  Justice Scalia explained in his concurrence that “the jury must find the existence of the fact that an aggravating factor existed.”[31]  Maybe so, but what about the facts needed to find that an aggravating factor existed or, more importantly, to give it weight relative to mitigating factors in the case? 

          One of the aggravating factors at issue in Ring was whether the murder was committed “in an especially heinous, cruel or depraved manner.”[32]  Of course, for a murder to be especially heinous, cruel, or depraved, additional information is required, beyond the mere fact that it was a murder.  That is why the judge cited testimony from the sentencing hearing that, following the crime, Ring bragged about his marksmanship.[33]  This bragging was just as necessary to Ring’s increased sentence as the enumerated aggravating factor it was cited to support.  Ring’s statement was itself necessary to find that aggravators outweighed mitigators, and thus to impose the death penalty in his case. 

          This was spelled out more explicitly in Blakely v. Washington.[34]  Ralph Blakely Jr. pled guilty to kidnapping his estranged wife, admitting to facts that, by themselves, supported a maximum sentence of 53 months’ imprisonment.  But Washington’s state sentencing guidelines permitted an upward departure where a domestic-violence defendant acted with “deliberate cruelty.”  After hearing the estranged wife’s testimony, the judge invoked this aggravating factor, sentencing Blakely to 90 months.  Unlike in Ring, the Court’s concern was not over the fact of the aggravator’s existence, but rather “the facts supporting [the] finding” that Blakely had acted with deliberate cruelty.[35]  Because those facts were not admitted by the defendant or reflected in the jury verdict, the judge could not use them to increase Blakely’s sentence.[36]

          United States v. Booker took this to the next level, rendering the federal sentencing guidelines advisory because they required judges to make factual findings to support sentencing outcomes including increased sentences.[37]  The problem, wrote Justice Stevens for the majority, was that the guidelines required trial courts to impose “particular sentences in response to differing sets of facts,” which no jury had found beyond a reasonable doubt.[38]  Many guidelines called for judges to find unnamed case-specific facts that supported recognized guidelines factors. 

          One guideline bore a particularly strong resemblance to the aggravator/mitigator weighing process for judicial overrides, asking whether a defendant played an “aggravating role” in the offense by leading or supervising the criminal activity.[39]  The judge was to consider factors including “the exercise of decision making authority, the nature of participation in the commission of the offense, . . .  the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.” [40]  

          Such guidelines factors are, of course, meaningless by themselves.  The “nature of participation in the commission of the offense” means nothing without additional information.  Thus, in striking down the mandatory guidelines because they required judicial fact-finding to support specific sentences, Bookerrecognized that such case-specific facts are “facts” under the Sixth Amendment that must be found by a jury beyond a reasonable doubt. 

          Aggravating factors supporting jury overrides in capital cases derive their weight from the same kind of case-specific facts, and they require that weight to outweigh whatever mitigation exists in a case.  This is true not only for aggravators a judge might cite in addition to a capital crime’s built-in aggravator, but also for thebuilt-in aggravator itself.  If, for example, a court relies solely on the fact that a murder occurred during a robbery, the judge still must determine the weight to accord that robbery relative to the mitigation in that case.  This might include questions such as how avoidable the murder was, or whether the defendant could have allowed the victim to flee.  The answers to these questions are unlikely to be “reflected in the jury verdict” from the guilt-phase of the case,[41] and they are “facts” for Sixth Amendment purposes. 


          So long as there is a “mere peppercorn” of mitigation in a capital case (likely, where the jury has recommended life), a conviction cannot by itself expose the defendant to the full range of potential punishment including death.  It takes at least some case-specific aggravating facts to outweigh those mitigating circumstances and to make the defendant death-eligible.   Apprendi and its progeny leave no question that the jury―and only the jury―must find,­­ beyond a reasonable doubt, all facts used to outweigh the mitigating circumstances in a case.