Ala. Death Penalty Scheme Is Constitutional

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By Lance J. Rogers

June 21 — Alabama's capital-sentencing scheme is constitutional, the Alabama Court of Criminal Appeals ruled June 17 ( State v. Billups, 2016 BL 194832, Ala. Crim. App., No. CR-15-0619, 6/17/16 ).

The decision puts the death penalty back on the table for four men facing capital murder charges, at least for now.

Just two weeks ago, the U.S. Supreme Court vacated an Alabama death row inmate's sentence and remanded the case back to the Alabama Court of Criminal Appeals, directing the court to consider this very same issue; does Alabama's scheme comply with the dictates of Hurst v. Florida, 2016 BL 7258 (U.S. 2016) (98 CrL 333, 1/20/16)?

Parsing Hurst

Jefferson County Judge Tracie Todd ruled March 3 that the state was barred from seeking the death penalty because Alabama's procedures violated the principles announced in Hurst, which struck down a Florida death penalty scheme for giving judges too much power to override a jury's recommendations about capital punishment.

But the Alabama appellate court, in an opinion by Judge J. Elizabeth Kellum, ordered Todd to vacate her decision, saying that she was reading Hurst too broadly.

In Hurst, the U.S. Supreme Court didn't strike down all sentencing override procedures as violative of the Sixth Amendment, the court said. Instead, the justices merely ruled that Florida's capital-sentencing scheme was unconstitutional because the procedure specifically conditioned a capital defendant's eligibility for the death penalty on findings made by the trial court and not on any findings made by the jury.

“In Florida, the jury did not have to unanimously find the existence of an aggravating circumstance before the jury could vote on whether to recommend a sentence of death or even before the jury recommended death,” Kellum wrote.

By contrast, a judge can't issue an override under the Alabama scheme unless a jury first agrees beyond a reasonable doubt that at least one aggravating circumstance exists, the court said.

Two weeks ago, the U.S. Supreme Court vacated an Alabama death row inmate's sentence and remanded the case back to the Alabama Court of Criminal Appeals for further consideration in light of Hurst.

In concurrence, Judge J. Michael Joiner argued that the circuit court judge lacked jurisdiction to pass judgment on the constitutionality of the Alabama law because none of the men had been sentenced, much less convicted. Joiner also criticized the circuit judge for basing her ruling on what appeared to be her personal opinions, instead of the law.

The Alabama Attorney General's Office, Montgomery, Ala., represented the state. The defendants were represented by The Myers Firm; Emory Anthony Jr.; the C. Burrell Law Group; and Katheree Hughes, Jr., all of Birmingham, Ala.

To contact the reporter on this story: Lance J. Rogers in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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