Bloomberg Law
Nov. 17, 2020, 9:00 AM

Supreme Court Must Eradicate Judicial Override in Death Penalty Cases

O.H. Eaton Jr.
O.H. Eaton Jr.
Circuit Court Judge, Ret., Florida

Over the course of nearly 25 years as a judge for Florida’s Eighteenth Judicial Circuit Court, I saw the workings of death penalty trials up close. It is my firm opinion that if we are to have capital punishment at all, we must take every precaution to ensure that it is imposed fairly, and we must scrupulously adhere to all procedural safeguards against arbitrary government action that may lead to the unjust imposition of the ultimate penalty.

You might be surprised that as a judge, I believe jurors—and not judges—are the best deciders of the facts in criminal trials, and especially in death penalty trials.

Judges may know the law, but when a jury of 12 ordinary citizens is given full and accurate information about a crime and a defendant, the process of discussion and deliberation will tend to produce a fair and reliable outcome. That is why the right to a trial by jury was so important to the framers of our Constitution, and why it remains a cornerstone of our criminal justice system today.

The importance of having juries decide death sentences, and not judges, is why I joined together with fellow judges from Florida and Alabama to urge the U.S. Supreme Court to take up the case of Calvin McMillan and put an end, once and for all, to a practice known as “judicial override” in death penalty cases.

A Perfect Example: Calvin McMillan

No state in the country still allows a trial judge to substitute his or her own decision about the death penalty for that of the jury, and only four states—Alabama, Florida, Delaware, and Indiana—ever practiced it. Yet there are still 32 people on death row in Alabama, including Calvin McMillan, whose juries’ decisions for a life sentence were overridden by the trial judge. The U.S. Supreme Court’s intervention is needed to correct this vestigial injustice.

McMillan’s case is a perfect example. He is a Black man who was tried in Alabama for killing a White man while stealing a truck. McMillan was just 18-years-old at the time of the crime and had survived horrific childhood trauma, including being shuttled between more than two dozen foster homes and institutions and at times being so hungry that he drew pictures of sandwiches and ate the paper.

The jury heard substantial mitigating evidence about McMillan’s background, and the only aggravating factor in his case was that the killing occurred during a robbery. But when the jury voted 8 to 4 in favor of a life sentence, the judge refused to accept the verdict.

Instead, the judge concluded—based on pure conjecture—that the jury had simply grown tired of its task, and the judge therefore sentenced McMillan to death.

Judicial override is no longer the law in Alabama, which was the last state in America to outlaw the practice. But the 32 prisoners who were sentenced to death by judges after their juries voted for life still face execution. Those judges’ decisions were not guided by any meaningful standards about when or how to bypass the jury’s verdict.

Moreover, 55% of the people sentenced to death by judicial override have been African American, and a full 75% were convicted of killing White victims. This makes judicial override one more aspect of the death penalty in America tainted by the specter of racial bias.

‘Unreliable and Improper’

As my fellow judges and I explained in our brief to the Supreme Court in support of McMillan’s case, “a nationwide consensus has now formed that judicial override constitutes an unreliable and improper way to sentence capital defendants. All states have abandoned this sentencing practice. [We] contend that executing defendants who were sentenced to death by judicial override does not comport with this country’s evolving standards of decency and would allow the consequences of an unreliable system to continue despite its unanimous rejection by every state.”

The U.S. Supreme Court must step in to ensure that people like Calvin McMillan, whose jury decided based on all the evidence that he should receive a life sentence, are not executed. The Eighth Amendment, which forbids cruel and unusual punishment and embodies our evolving standards of decency, demands no less.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Judge O.H. Eaton Jr. served on the Circuit Court for Florida’s Eighteenth Judicial Circuit Court from 1986 through 2010, including as Chief Judge. He submitted a “friend of the court” brief in support of McMillan’s petition for a writ of certiorari.