CNN
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Alabama plans to execute on Thursday an inmate whose jury’s 11-1 vote for a life sentence was overridden by the trial judge who opted instead for the death penalty, a practice the state has since repealed.
Kenneth Smith, convicted of capital murder for his role in the 1988 killing of Elizabeth Sennett, should not be executed, his attorneys argued in a filing before the US Supreme Court. If he was tried today and his jury came to the same conclusion, they said, Smith would not be qualified for execution – not in Alabama or anywhere else, because no jurisdiction today allows the practice of judicial override.
Putting Smith to death despite the jury’s verdict, they say, would constitute cruel and unusual punishment, violating his constitutional protection under the Eighth Amendment.
Smith is one of four death row inmates set to be executed this week. Stephen Barbee in Texas and Murray Hooper in Arizona were both executed Wednesday, while Smith and Richard Fairchild in Oklahoma are scheduled for execution on Thursday.
Smith’s slated execution comes as juries’ sentencing recommendations in death penalty cases are in the national spotlight. A jury failed to issue a unanimous recommendation in the sentencing trial of the Parkland school shooter, resulting in a life sentence.
Alabama became the last US state in 2017 to repeal judicial override, which allowed judges to disregard a jury’s decision for either life or death in capital cases and impose the alternative sentence. The new law, however, was not retroactive, and inmates like Smith, whose juries rendered what was then an “advisory” verdict for life, remain on death row.
While the practice was previously allowed in three other states – Indiana, Florida and Delaware – Alabama judges routinely overrode juries’ votes for life, per a 2011 report by the Equal Justice Initiative. At the time, judicial override accounted for about 20% of the death sentences among the state’s death row inmates, the report said.
The Supreme Court has visited the issue of judicial override in Alabama since it was repealed. In 2020, the court denied the petition of another inmate, Calvin McMillan, who argued for his death sentence to be vacated, saying it was unconstitutional since his jury had voted for life.
Smith was convicted of capital murder in 1996, court documents show, for his role in a murder-for-hire plot targeting Sennett, the wife of a local minister who was having an affair and had taken an insurance policy out on his wife so he could pay off his debts.
Sennett’s husband, Charles Sennett, recruited an individual to kill his wife, court records state. That man then recruited two others, one of whom was Smith, and Sennett agreed to pay each $1,000 to kill his wife and make it look like she was killed in a burglary.
In March 1988, the men carried out the killing as planned, and Smith took from the Sennett home a video cassette recorder, which he stored in his own residence.
Charles Sennett killed himself a week after his wife’s murder, the records state, as the investigation began to focus on him. But Smith was arrested after authorities, having received an anonymous tip, executed a search warrant at his home and found the Sennett’s VCR.
He was convicted and sentenced to death, but an appeals court overturned that initial outcome and ordered a new trial, finding the state had based peremptory challenges to prospective jurors on their race.
Smith was again convicted in the retrial. But the jury was apparently swayed during the penalty phase, which takes place after the guilt phase in trials for capital crimes. During the penalty phase, prosecutors and defense attorneys traditionally argue over aggravating and mitigating circumstances – reasons why they say the defendant should be executed or put to death.
This time, the jury voted 11-1 for a sentence of life in prison without the possibility of parole after, his attorneys write, hearing evidence about Smith’s “character and life circumstances.”
The judge, however, felt that the aggravating factors outweighed the mitigating circumstances, Smith’s attorneys write, and overrode the jury’s vote, sentencing Smith to death.
Judicial override was intended to allow judges to essentially serve as a check on juries, preventing them from handing down death sentences in arbitrary or discriminatory ways, attorneys for the Innocence Project wrote in a 2020 brief at the Supreme Court in support of McMillan’s case.
Florida, Delaware and Indiana outlined specific standards for when a judge could override a jury’s vote for life, they wrote. In Florida and Delaware, for example, the facts supporting a death sentence needed to be so convincing that no “reasonable person” would disagree.
As a result, judicial override to impose a death sentence rarely took place – or a large bulk of the cases where it was used were later overturned. Additionally, Florida, Delaware and Indiana judges frequently used it to impose life sentences where juries had decided on death.
Alabama instituted no such safeguards, the attorneys’ brief says, and judges there were required only to “consider” the jury’s verdict.
The state did away with the practice in 2017 by amending the law to specify that juries’ verdicts were no longer “advisory” but final.
“You are entitled to a trial of a jury of your peers, and that ought to apply to sentencing too,” state Sen. Dick Brewbaker, who sponsored the bill, told CNN affiliate WSFA in February 2017, before the passage of his bill.
“One of the most important things about our democracy is our laws are derived from the common law,” Brewbaker, a Republican, said. “That’s why a crime of violence is a crime against a community. That’s why we have a trial in the community. That’s why we pick a jury of the community and they decide guilt, innocence, and punishment.”
