In an editorial published last Friday decrying judicial override, a practice that permits judges to overrule jury recommendations for life in capital cases, the New York Times drew heavily upon a recently published Forum Essay by Patrick Mulvaney and Katherine Chamblee. After Florida eliminated override in March 2016, and the Delaware Supreme Court invalidated that state’s override law in August 2016, there is only one state in the country that continues to permit judges to instate the death penalty over a jury’s recommendations for life: Alabama. Alabama’s law, the New York Times wrote, “embodies all the irrationality, unreliability and arbitrariness of the death penalty in America in 2016.”[1]

Critics of override have long argued that the practice violates the Sixth Amendment jury right, as well as the Eighth Amendment protections against arbitrary punishment. In their Essay, Mulvaney and Chamblee—both capital defense attorneys at the Southern Center for Human Rights—now argue that override also increases the risk of wrongful executions. Pointing to evidence that half of the exonerations in Alabama since 1981 involved cases in which jurors initially voted against death, Mulvaney and Chamblee show that overrides are disproportionately applied in wrongful conviction cases. According to Mulvaney and Chamblee, that imbalance is not surprising: capital jurors may be convinced “beyond a reasonable doubt”—the standard sufficient for conviction—but may still be plagued by some lingering doubt (“residual doubt”) that prompts them to spare the defendant’s life at the sentencing stage. As Justice Stevens observed in 1984 in a dissent from a decision upholding Florida’s override law, “It may well be that the jury was sufficiently convinced of petitioner’s guilt to convict him, but nevertheless also sufficiently troubled by the possibility that an irrevocable mistake might be made . . . that [it] concluded that a sentence of death could not be morally justified in this case.”[2] Override thus targets cases with weaker evidence, yielding less reliable death sentences.

Echoing Mulvaney and Chamblee, the New York Times suggested that it may be time to end the practice of judicial override nationwide in order to preserve, in Justice Sotomayor’s words, “the sanctity of the jury’s role in our system of criminal justice.”[3]