"Politics, not justice, in Alabama death penalty cases," is the title of a Los Angeles Times OpEd by Andrew Cohen. Here's the beginning:
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.
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.
Also available, earlier writings by Andrew Cohen.