A murder trial is held and the defendant is convicted. After hearing the mitigating and aggravating circumstances of the crime during the sentencing phase of the case, the jury concludes that the death penalty is not an appropriate punishment for the crime. The jury votes instead for a life sentence.

But after deliberations are over, the judge overrides the jury’s verdict and sentences the defendant to death anyway. Afterward, on the campaign trail, the judge boasts that he is tough on crime, and a stoic supporter of capital punishment, and suggests the electorate should reward him for these positions with another term. He wins reelection — and the opportunity to preside over countless other death penalty cases.

If this were fiction — from a novel by John Grisham, say — we would shake our heads at the perverse incentives in play in this narrative. We might say to ourselves, “A judge can’t do that, can he?” But it’s not fiction. It’s fact.

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It’s happening in Alabama, where judicial elections and legislatively sanctioned “judicial overrides” of jury verdicts in capital cases combine regularly to vitiate the constitutional rights of criminal defendants. Judges there have been given more power to make life-or-death decisions, and more incentives to politicize those choices to appease the electorate.

Don’t just take my word for it. Supreme Court Justice Sonia Sotomayor last month detailed Alabama’s dubious sentencing scheme in her dissent when the high court declined to hear Woodward vs. Alabama. This is a case in which a jury voted 8 to 4 to give defendant Mario Dion Woodward a life sentence for murder, only to see that result overturned by a judge.

Alabama is one of only three states that give judges this override power in capital cases, and it is the only state in which judges regularly use that power to enhance sentences. As Sotomayor wrote in Woodward, it is not hard to understand why. “Alabama judges,” she wrote, “appear to have succumbed to electoral pressures” in a way that “casts a cloud of illegitimacy over the criminal justice system.”

There is incontrovertible evidence that this is so, and Sotomayor cites a great deal of it in her dissent (which was joined only by Justice Stephen G. Breyer). In Alabama, the record reflects, judges have publicly proclaimed that their choices in death penalty cases have been influenced by voters. She cites one such example, and another of a judge who had imposed the death penalty in six cases who boasted in campaign advertisements about his record. Sotomayor noted that “since 2000, there have been only 27 life-to-death overrides, 26 of which were by Alabama judges.” Could all 26 of those juries have been wrong?


This is the strongest argument I have heard yet against judicial elections, the very existence of which undermine confidence in the impartiality of the judiciary. Any judge who has to beg future litigants for votes, or who has to promise her constituents that she will employ a particular doctrine or ideology, is tainted. And any defendant whose life or liberty or property depends on the objectivity of a judge pandering to constituents has been deprived of basic fair-trial rights. It’s bad enough that judicial elections taint civil justice in states such as Texas. That they taint life-or-death decisions in Alabama is simply deplorable.

What’s happening in Alabama is not new. Throughout U.S. history, state judges have been more susceptible to political pressures than their federal counterparts. But what is new is the failure of the federal judiciary to stop the most patently unlawful of these practices. Federal judges, life-tenured and independent, are supposed to be immune from the very political pressures we see in play in Alabama. Federal judges thus are supposed to better preserve and protect the constitutional rights of defendants like Woodward from the judicial overreach seen in this case.

And yet, in this case, seven justices of the U.S. Supreme Court refused to do anything about the way judicial elections in Alabama manipulate how capital cases unfold there. Woodward’s jury spoke clearly after a thorough trial, and it spoke for life. Remember this case, and this result, the next time the justices in Washington preach about the virtues and necessity of juries in our system of justice. That system broke down in this case, and it wasn’t the jury’s fault.

Andrew Cohen, a legal analyst, is a contributing editor at the Atlantic and is a fellow at the Brennan Center for Justice.