Executed Against the Judgment of 12 Jurors

The capricious nature of the death penalty was on full display on August 5, 2013, when the state of Florida executed John Errol Ferguson. More than three decades had come and gone since he’d received a death sentence for his role in what came to be known as the Carol City killings. It was the longest time lapse between death sentence and execution in United States history, due largely to the extraordinary degree of mental illness Ferguson had exhibited since well before his arrest for the murders.

But in the hundreds of news stories about the Ferguson case, there was barely a word about Beauford White, one of the other men who had been with Ferguson during the murders. Perhaps it was because White had been executed 26 years earlier, and his name had faded from memory. Or perhaps the public had forgotten, or never known, that the jury convicting Beauford White didn’t want him to be executed.

Jury verdicts are considered sacrosanct in American jurisprudence, particularly where the death penalty is concerned. Proponents of capital punishment have long argued that death sentences imposed by 12 jurors must be respected above any claims of bad lawyering, prosecutorial misconduct, judicial mistakes, or myriad other errors. Verdicts in capital cases are different than in all other cases in one crucial regard: the decision whether someone should live or die is a moral one, rather than factual or legal. Unlike a guilty verdict, which is reached through group deliberation, a life or death sentencing decision in a capital case is the product of individual reflection: each juror weighs the arguments for life imprisonment or execution on his or her own. The vast majority of states that have a death penalty require a unanimous vote by a jury before the death penalty is applied. But three states—Florida, Alabama, and Delaware—do it differently. This is how Beauford White came to be executed against his jury’s wishes. 

As a literary device, it might work well to trace the parallel lives of John Ferguson and Beauford White. But the truth is that their lives ran at opposing angles, at least as far as the crime and its aftermath were concerned. So the night of the Carol City killings is as good a place as any to start their story. On July 27, 1977, Ferguson, identifying himself as “Lucky” and posing as an employee of Florida Power and Light, entered a house in a suburb of Miami. Shortly thereafter, he pulled a gun and demanded drugs, money, and jewelry from the female inhabitant. His co-conspirators, Beauford White and a man named Marvin Francois, joined Ferguson inside the house; all of the men were armed. Eventually, seven more people entered the home, including the woman's boyfriend and the owner of the house.

At this point, the prosecution and defense versions of the story veer away from each other. The state claimed that the killers wanted to eliminate the witnesses; lawyers for White argued that their client was along for the robbery, but the murders were part of a prearranged contract involving only Ferguson and Francois. In either case, two facts were undisputed: Eight people had been forced to lie on the floor, their hands tied behind their backs, and shot in the back of the head (two miraculously survived). And Ferguson and Francois had pulled the triggers. This was not a whodunit.

Everyone agreed that White had never attempted to kill anyone, or even intended that anyone should be killed—that he had, in fact, tried to talk Ferguson and Francois out of killing. While White took his share of the drugs, money, and jewelry, the testimony revealed that he appeared to be in shock after the murders, his eyes glazed over and his expression blank, “just sitting there like he seen a ghost.” And then there was this testimony of his refusal to cover up the crime, from the man who drove the killers to the crime scene:

Q: Somebody said something about getting rid of the .38, I think is what you said before we took the break.
A: Yes. Marvin [Francois] and Ferguson was talking about getting rid of the guns. They asked Beauford to get rid of it.
Q: What did Beauford say?
A: Beauford said, "I ain't getting rid of nothing."

So the picture was clearly drawn for the jury: Beauford White had not killed or attempted to kill—had, in fact, been shocked that killing had occurred—and was unwilling to join in the cover-up afterwards. When the jury sat down to decide if White was the worst of the worst, it wasn’t even close. All 12 voted that life imprisonment for him was more appropriate than execution.

John Ferguson did not fare nearly as well in front of his jury. Logic dictated that he was the leader—at the very least, he was the first to enter the house and pull a gun, the first to bind and blindfold a victim—and it was clear that Ferguson, along with Francois, had placed the eight victims on the floor and shot them in the back of their heads. While there was evidence that Ferguson had been mentally ill for some years before the date of the crime, he was clearly sane under any legal definition of insanity; and with six murders and two near misses on the docket, the jury had little choice. At the end of May 1978, less than a year after the slaughter in Carol City, the jury unanimously recommended that John Errol Ferguson be executed by the state of Florida.

***

It is reasonable to wonder how Beauford White, the man who received a unanimous jury vote for life, came to be executed in 1987, while John Ferguson managed to avoid a similar fate until 2013, even with a unanimous vote for death. There is no single explanation, as there rarely is when the death penalty is concerned, but a good starting point is the Florida sentencing law.

When the death penalty was ruled unconstitutional in the landmark 1972 case Furman v. Georgia, Florida became the first state to pass a new death penalty statute, six months later. Most of the country soon followed suit, but Florida’s law had a quirk that only Alabama and Delaware adopted: The jury’s vote regarding life or death was a recommendation, not a decision. The trial judge alone would determine the sentence.

Two years later, however, the Florida Supreme Court weighted the jury recommendation: For a judge to override a jury vote and change a life vote to a death verdict, “the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” Regardless of what the jurors thought, Beauford White’s fate rested with the trial judge, Richard S. Fuller.                                                          

Judge Fuller was a scoutmaster, a medic in a MASH unit, and a personal injury lawyer. Tall, distinguished, and with a memorable head of white hair, he is recalled by South Florida lawyers as the guy you might select if you were looking to cast a judge in a movie. One of those same lawyers remembered him in a legal brief as a man “who would send an individual to the electric chair.” He presided over the consecutive jury trials of the three defendants in the Carol City killings, and Beauford White found himself sandwiched between the two actual killers.

Marvin Francois was first, and when the jury recommended a death sentence, Judge Fuller followed their recommendation three days before the Beauford White trial started. When imposing a sentence in a capital case, a Florida judge is obligated to determine reasons a defendant should live and reasons he should die—these are called mitigating and aggravating circumstances—and then weigh them to determine the sentence. Judge Fuller found no mitigating circumstances in Francois's case. (His future appeals proved fruitless, and he was executed in 1985.)

Beauford White's case was surely much more complicated than Francois's. The crime itself was horrific, but White had not taken part in the killings, and had in fact argued against them. Twelve jurors heard the evidence and voted to spare him, no small fact according to the Florida Supreme Court. Were their voices to be ignored? Could anyone have said that no reasonable person would have voted for life, after 12 citizens selected randomly from the community just had?

Yes—Judge Richard S. Fuller. In weighing the arguments for a death sentence against those for a life sentence, Judge Fuller once again found no mitigating circumstances—not White's failure to kill, not his shock after the killings, not even his opposition to the killings. At the end of April, 1978, Beauford White was sentenced to death.

In May, John Ferguson’s jury unanimously recommended death, and Judge Fuller imposed that sentence as well. Of the three decisions, this one was likely the easiest for the judge: Only a month before, Ferguson had confessed to killing two 17 year olds in the course of a robbery/rape, a crime that six months later resulted in two more death sentences imposed by the same judge. There was some evidence that Ferguson had mental health problems—he had been committed previously to a state mental hospital—but Judge Fuller was not sufficiently moved to consider his mental illness a mitigating circumstance. In fact, as with Francois and White, Judge Fuller found no mitigating circumstances at all for John Ferguson.

*** 

The cases moved on to the Florida Supreme Court. The Ferguson case hit a little speed bump when the court found that Judge Fuller had misapplied the law regarding mental illness as a mitigating circumstance But another judge ran through the procedure properly and reimposed a death sentence.

Beauford White's sentence didn’t meet with any resistance at all—the Court had no problem affirming Fuller’s decision to override a unanimous jury, ruling that “the only colorable mitigating circumstance was the … consideration that the defendant was not the triggerman.”

Colorable? That was a strange way to put it, particularly since all 12 jurors had found White’s lack of participation in the murders as the reason to recommend a life sentence. Indeed, the foreman of the jury, in an interview almost 10 years after White's trial, said, “We voted for life because we did not see a shred of evidence indicating that White himself actually took part in the killing. We knew he was present, and we knew he was guilty of something, we just didn't know of what crime it was. We couldn't be sure he was guilty of murder, so we voted to spare his life.”

But it didn’t matter what the foreman thought—or what anyone else on the jury thought, for that matter. Judge Fuller had decided that the jury was wrong, and the Florida Supreme Court had found his decision “so clear and convincing that virtually no reasonable person could differ.”

Capital cases follow a well-worn appellate path, and the next stop for White and Ferguson was post-conviction. This is the stage where defendants go back to the trial court and allege mistakes or omissions that took place the first time around. But while both men found themselves at the same stage, their legal postures were profoundly different. Ferguson now had two more death sentences to deal with—the murders of the two 17 year olds had been merged with the Carol City killings for purposes of his appeal—but his extensive mental health history and brutal upbringing had required a complex investigation that slowed his appeals dramatically.

White, on the other hand, had already persuaded every member of his jury that he should live. His post-conviction case took a very different turn from Ferguson’s, and a considerably luckier one in two ways. His case was now in the hands of Judge Herbert Klein, a man far more predisposed towards mercy than Judge Fuller. And while White's case was pending, the United States Supreme Court had decided the Florida death penalty case of Earl Enmund. 

Like Beauford White, Earl Enmund hadn’t killed or attempted to kill anyone. And like White, Enmund was clearly guilty of a robbery during which people had been killed. Overruling the Florida Supreme Court, the United States Supreme Court determined that death was not a valid penalty for a person who neither took life, attempted to take life, nor intended to take life. Enmund v. Florida appeared to be a home run for Beauford White. At least Judge Klein thought so; applying the Enmund case, he vacated White’s death sentences, and the case once again went to the Florida Supreme Court.

Courts don’t like to be reversed, and it is impossible to read the Florida Court’s opinion without feeling the justices' resentment: “We have no doubt that Enmund, overturning as it did centuries of law, represents a major change in constitutional law and that we are obligated to revisit this case in order to determine if Enmund  prohibits the imposition of the death penalty under the facts and circumstances of this case.”

Not surprisingly, the Court found no prohibition. Stating that White had done nothing to “disassociate himself” from the murders, the Florida Supreme Court reimposed the death penalty on him. Not all seven justices agreed—two of them thought that the Enmund case required a life sentence for White, and one came right out and said that the Florida Supreme Court had no business sentencing anyone to death, which was what it was doing by overruling Judge Klein. But two negative votes did not change the outcome for Beauford White. On a Florida jury, even a unanimous recommendation was not the final word about life or death. But a simple majority was more than enough for the Supreme Court of Florida.

***

Since Beauford White had received a life recommendation from all 12 of his jurors, his lawyers initially had little reason to contest the facts of the Carol City killings. But as the first President Adams said more than 200 years ago while defending reviled British troops in the Boston Massacre case, facts are stubborn things. And as White’s case wound its way through the courts on a profoundly dangerous spiral, some stubborn facts surrounding the crime itself began to surface. Not small facts, either—facts that raised questions about who the victims were, and how the investigation of the crime had been conducted.

The Florida Supreme Court had noted that “the essential facts” of the case were not in dispute: an hour after the robbery had begun, the owner of the house and five of his friends had “arrived,” subsequently becoming victims of the robbery. One of those friends, Johnnie Hall, had survived the shooting and become the main witness for the state. But Hall was not the innocent bystander portrayed at the trial. And the lead investigator in the case, Detective Robert Derringer, was not the police officer the jury and judge might have assumed he was.

To understand who they really were, it is necessary to revisit the Miami of the late 1970s and early 1980s—a city drowning in cocaine and cash.

South Florida brought three things together in the late 1970s: proximity to Colombia, a landscape that lent itself to easy access by small planes and boats, and an extraordinary willingness by all branches of the government to look the other way. When the drug boom hit, fisherman stopped fishing and used their boats for drug imports. Luxury cars flew off lots, and the Miami Federal Reserve branch found itself with a surplus of $5 billion in $50 and $100 bills—more than the next 12 Federal Reserve branches in the country combined. And one other thing happened: Miami became the homicide capital of the country.

Law enforcement was not oblivious to Dade County's sudden shift in fortunes. While the Carol City victims initially seemed to have had the bad luck of walking in on a robbery, the police knew better. A police document written four days after the crime, but never revealed to the defense, summarized the true nature of the circumstances: “Charles Ceasar Stinson, N/M, 35, of Milwaukee, Wisconsin, was in Miami with the intention of making a large cocaine buy. Charles Stinson contacted his associate, Gilbert Williams, N/M, 35, of Miami, who is his contact in Miami, in an effort to arrange the cocaine deal. Gilbert Williams utilized John Hall, N/M, 45, to make the arrangements to buy the cocaine.”

The memo went on to describe how the victims and TTthe owner of the house had been involved in the drug deal. The fact that John Hall was an active player in a drug conspiracy, rather than an innocent man who happened to stumble into the wrong house, was only half the issue. At trial, Hall was the main witness in the case, and it was he who testified that the murders took place to eliminate the witnesses, rather than as a prearranged hit Beauford White had nothing to do with.

The cocaine, the violence, the incredible amounts of cash—all of these things had a predictable impact on the Dade County police force. A federal investigation in the early 1980s had revealed that during the period of the Carol City killings, the lead detective in the case, Robert Derringer, and another detective involved in the investigation, Fabio Alonso, had been deeply involved with drug dealers and their profits.

In all, seven officers involved in the Carol City case were implicated in a large-scale drug operation that involved, among other things, stealing drugs, money, and jewelry from the residences of homicide victims. Derringer was ultimately convicted of income tax evasion and unlawful appropriation of property and sentenced to six years in federal prison. Alonso received a 10-year sentence.

Finally, there were considerable new revelations about Beauford White himself. His trial attorney had spent very little time looking into his own client’s background—the law that requires such information to be taken into account in capital cases was in its infancy in the late 1970s when White's case first came to court. But nine years later, the obligation to discover, understand, and present a defendant’s history was better known, and it turned out White's background was stark and sympathetic. His mother, who started having children at 12 and had had her fifth by the age of 20, was routinely and savagely beaten by his father, Ernest—and when his father was not beating her, Beauford himself became the target. When he was three, his father knocked him out cold, driving his teeth through his tongue; a doctor later concluded that this assault and others were the likely cause of seizures that plagued Beauford through his lifetime.

When Ernest White left the family to go to Detroit, his mother took up with a series of men just as abusive, eventually killing one of them and going to prison for a seven-year sentence. Beauford, abandoned time and time again as a youngster and now without a mother or a father, nonetheless shone in school. Twenty-five years later, in a statement given to Beauford’s lawyers, his junior high school principal recalled him as “an ideal young person … academically gifted … He probably would have been a straight-A student if he would have had some stability in the home and a place to study … one of those kids that a teacher looks forward to being around.” Another teacher described him as “truly one of my tops”; a third said the reason she remembered him all those years later was because “I liked him so much.”

He was reportedly a terrific athlete as well—Leroy Cromartie, a supervisor for the Miami Recreation Department, told the lawyers that Beauford had had “major league potential.” (And Cromartie would have known—his son Warren was a successful first baseman and outfielder with the Montreal Expos.) Cromartie went on to detail the drug culture that eventually sucked Beauford into its maw, and the addiction that eventually overcame his potential. Then he said the same thing dozens of other witnesses had said: “It tears me up to see what happened to Beauford, but I know too well how it happened. I would have appreciated the chance to explain all of this to his judge and jury.”

Was there time for these new revelations to save Beauford White? By now, his case had already been denied once in the federal courts, and his new lawyers—death-penalty specialists who worked well under the pressure of an execution warrant—rushed to get the previously hidden information in front of a judge before it was too late.

With less than two weeks to go before White's scheduled execution, the Florida Supreme Court refused to even consider the new claims. “It is clear … that this eleventh hour petition is an abuse of process,” the Court wrote in an opinion that ran less than 500 words. A request for a stay of execution a few days later compelled the same court to complain, “The fact that we are dealing with a death sentence does not excuse [White’s lawyers’] failure to abide by the Florida Rules of Criminal Procedure.” Time was running out.

***

While White was already in the homestretch of his last appeals, Ferguson’s lawyers were still in state court, working to piece together their client's complex and dysfunctional background. There was no doubt that Ferguson had suffered from a serious mental illness since well before the crimes that had put him on death row, but the cause of the illness was proving impossible to pinpoint. As a child he had been forced to move nearly a dozen times, fleeing his violent and drunken father or his mother’s many boyfriends; sometimes the family moved simply to find a place with electricity and running water. When he was 13, his father died from the effects of alcohol abuse, and shortly thereafter he was committed to a state school. He dropped out in 9th grade; a medical report indicated that he was “beat up by kids and … a loner throughout his life.” 

It hardly seems possible, but Ferguson’s life took a severe turn for the worse when he was 21: He was shot four times by the police, once in the head. Those around him noticed an immediate impact on his behavior, which often became irrational and inexplicably hostile. From the day he was shot to the day of his arrest in the Carol City killings, he spent the majority of his time in mental hospitals and the rest of it committing crimes; twice, he was found not guilty of robberies by reason of insanity. It was during this eight-year period from 1969 to 1977 that the true scope of John Ferguson’s mental instability became known.

Psychiatry is not an exact science. Different doctors bring different perspectives to their examinations, and mental illnesses wax and wane. Thus, the consistency of Ferguson’s diagnoses, through 11 evaluations by seven different doctors, is the most compelling evidence of just how ill he was. Virtually every evaluation echoed the same three words: schizophrenia, psychosis, and hallucinations. His symptoms were consistent as well—he was conversing with his deceased father, he refused to sleep in jail because “they” put scorpions on his bed, he suffered from headaches caused by roaches and “very small” people that had been placed inside his brain.

And every evaluation came with a warning or a recommendation: Ferguson had “such a severely damaged ability to distinguish between right and wrong” that he “would commit illegal acts,” wrote one doctor. Warned another, his “degree of irrationality coupled with a rather impulsive, explosive and aggressive nature makes him a rather dangerous person both to himself and to others.” A third concluded that he was “dangerous to the point where he is considered homicidal.” Finally there was this: Ferguson “has a longstanding, severe illness which will most likely require long-term inpatient hospitalization. This man is dangerous and cannot be released under any circumstances.”

Almost 40 years later, it's unclear what circumstances allowed a state mental hospital to release a paranoid schizophrenic despite his imminent danger to the public. But Ferguson was on the streets on July 27, 1977, when he participated in the Carol City killings. He would not be free much longer, and the doctors’ warnings, unheeded when they might have done the most good, were now all that stood between a life of incarceration and execution by the state of Florida.

***

Proponents of capital punishment commonly argue that death penalty appeals are endless, that the same issues are litigated over and over, and that technicalities often free the most heinous murderers. It's safe to say that none of these things happened in the case of Beauford White. By the summer of 1987, he had already had his claims rejected by the state and federal courts, and he was in desperate straits.

A last-ditch effort in the federal courts was all that remained. The judge who would hear the final appeal of Beauford White was the newly appointed Stanley Marcus, fresh from heading the United States Attorney’s Office that had indicted and convicted the lead detectives in the case. Marcus had already denied White’s appeal once, but that was before the drug conspiracy among the victims or the corruption of the investigating police officers had come to light—before the very real possibility that the main eyewitness had lied about the crime. Surely the former United States Attorney would see the significance of these new revelations, especially since the jury had voted unanimously for life without even knowing what Judge Marcus now knew.

On the night of August 25, 1987, from 4:00 p.m. to 11:00 p.m., a hearing concerning the fate of Beauford White took place in the Federal Court House in Key West Florida. Less than 24 hours later, in an opinion a higher court later referred to as “carefully reasoned,” Marcus made quick work of the defense arguments. Evidence that the victims were involved in drug trafficking, and that the murders were planned executions by Francois and Ferguson, had no bearing on “whether White was guilty of the first degree murder charges and whether the death penalty had been properly imposed.” The fact that the main eyewitness had lied about his business in the drug house and his own involvement “was not central” to the issue of White’s guilt, and “in no way” exonerated him. The subsequent criminality of many of the police officers involved in the investigation of the case—officers convicted and incarcerated by the U.S. Attorney’s office run by Marcus before he became a judge—is not mentioned at all in his 35 page opinion.

The case moved quickly from there. The next day, the United States Supreme Court denied review; the appeals had run their course. Two Justices, Brennan and Marshall, disagreed with the denial. Noting that White had been “duped into what he later discovered was a planned contract murder of one or two of the victims,” that he was “visibly shaken afterwards and refused to help dispose of the weapons,” and that the trial judge had disregarded the jury’s unanimous recommendation, the justices argued that White’s execution was “inexcusable.” But they were the only two, and on August 28, 1987, Beauford White died in the Florida electric chair. Two other men, in Alabama and Utah, were executed as well, making it the first time in modern United States history that three men were executed on the same day.

***

In retrospect, Judge Marcus’s opinion seems to squarely address the main issue in the case. “We are firmly convinced,” Marcus wrote, “from a detailed review of the newly discovered evidence, that there is no reasonable probability that, had this evidence been disclosed to the defense, the results of the proceedings would have been any different.” In other words, if the defense had known that the main eyewitness was lying, that the police were corrupt, that the killings were actually an orchestrated hit rather than a late decision to eliminate the witnesses—would any of it have made a difference to Judge Fuller? Was there any evidence at all that might have persuaded him to go along with the jury recommendation for a life sentence?

Perhaps not. It turns out only one other person in American history has ever been given a death sentence and then executed after a 12-0 jury recommendation of life: Bernard Bolender. After deliberating six hours and then convicting him of four murders, Bolender’s jury deliberated only 12 minutes before unanimously voting for life in prison. His lawyers claimed that the jury reached its startlingly quick decision because of questions regarding Bolender’s guilt. But the trial judge overrode the jury’s recommendation, imposing a death sentence, and Bolender was executed in 1995. The judge in that case? Richard S. Fuller.

In a sworn affidavit, Jimmy Della Fera, one of Bolender’s lawyers, wrote that “the judge assigned to the case, the Honorable Richard S. Fuller, was predisposed to impose death and that there was not much that could be presented in the way of mitigation that would make any difference to Judge Fuller … I did not think it mattered much what the jury recommended because the judge had the final say. As it turned out, the jury did recommend life, and Judge Fuller overrode that recommendation and imposed death.” It’s possible that White’s fate was sealed not when he stood by and watched six people killed, but when he was assigned to Judge Fuller’s courtroom.

***

It took 26 years for the circle to close on Carol City, and for most of that time, John Errol Ferguson’s lawyers argued that their client could not proceed with his appeals because he was too mentally ill to meaningfully consult with them. The Florida courts disagreed: They acknowledged that at one time he had “suffered from a mental disorder that had symptoms associated with paranoid schizophrenia,” but that since 1994, his mental health had improved so as to make him “no longer a disruptive member of his prison environment.” Indeed, rather than finding him overtly psychotic and too dangerous to be walking the streets, as the doctors who evaluated Ferguson before the killings had, the Florida courts concluded that his disorder was in remission and that he was malingering or exaggerating his symptoms.

This was far from the universal view of the medical community, however. Virtually every criminal trial involving a mental health opinion has expert testimony from both the prosecution and the defense, and such cases routinely devolve into a battle of experts. Ferguson’s certainly did. At every one of Ferguson's hearings, doctors were lined up on both sides, and more than a dozen of them concluded that he was too mentally ill to proceed. In every instance, however, the state prevailed, and slowly but inexorably his case moved toward a conclusion.

As the date of his execution neared, Ferguson’s attorneys claimed that he was incompetent to be executed. In other words, he was too mentally ill to rationally understand the reason he was being executed. By this time there was little talk of Ferguson being a malingerer. Everyone agreed that he was a paranoid schizophrenic with grandiose religious delusions about being the Prince of God. But the last court to take a look at his case, the 11th Circuit Court of Appeals, was not persuaded of his incompetence: “That most people would characterize Ferguson's Prince of God belief, in the vernacular, as ‘crazy’ does not mean that someone who holds that belief is not competent to be executed.” On August 5, 2013, John Errol Ferguson was executed by the state of Florida. His final words, spoken calmly, were, “I just want everyone to know that I am the Prince of God and will rise again.”

***

Judicial override is not yet a thing of the past in Florida, though the Florida state's Supreme Court (in the case of Alfredie Steele) has asked its state legislature to rewrite the death penalty statute and “decide whether it wants Florida to remain the outlier state.” Thus far, the legislature has taken no action. And while the Florida trial courts have not overruled a jury recommendation of life since 1999, the repercussions of the practice can still be felt today. In 2010, the United States Court of Appeals for the Eleventh Circuit upheld the override of Matthew Marshall from more than 20 years earlier. He remains on Florida’s death row awaiting execution.

Override of jury sentencing has its greatest vitality in Alabama. Whereas Florida ruled in 1975 that great weight should be given to jury recommendations, its neighbor to the north declined to follow the same rule. Alabama’s legal code, updated in 1981, declares, “While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court.”

And Alabama chooses its judges in partisan elections. This fact plays a huge, if predictable, role in sentencing outcomes. As far back as the 1930s, Alabama judge James Edwin Horton was quickly booted out of office after granting the “Scottsboro Boys” a new trial following a thoroughly racist and unfounded capital rape prosecution. Since then, judges have been stressing their “law and order” bona fides at election time, and poll numbers in Alabama strongly suggest that supporting the death penalty is a vote-getter.

The 1995 Supreme Court case Harris v. Alabama allowed the state's override policy to stand. The sole dissenting voice belonged to Justice John Paul Stevens, who observed that capital judges may be “too responsive to a political climate in which [those] who covet higher office—or who merely wish to remain judges—must constantly profess their fealty to the death penalty.” He added that the danger of judges “bend[ing] to political pressures when pronouncing sentence in highly publicized capital cases is the same danger confronted by judges beholden to King George III.” Justice Stevens then noted a striking disparity: Alabama judges had vetoed only five jury recommendations of death, but had condemned 47 defendants whom juries would have spared. By 2011 those numbers had become even more extreme: 98 overrides for death, only nine for life.

The U.S. Supreme Court hasn't heard a case on judge override since 1995. In the last decade 23 men, all of them in Alabama, have been sentenced to death after their juries recommended a life sentence; three received unanimous votes for life. One of those cases, that of Mario Dion Woodward, nearly reached the Supreme Court in November, but the justices declined to hear it. Only Justices Sonia Sotomayor and Stephen Breyer objected to the denial of certiorari—Sotomayor noted that Alabama judges “appear to have succumbed to electoral pressures.” The New York Times's editorial board chimed in the same day, arguing that a death penalty “should not be imposed by a judge who is worried about keeping his job.”    

Whether Richard S. Fuller—who left the bench more than two decades ago and passed away in 1997—was worried about keeping his job when he overruled unanimous life recommendations would be cold comfort to Beauford White or Bernard Bolender. As for the dozens of men now similarly situated on death row, the Supreme Court’s recent refusal to hear the Woodward case is a disappointing reminder that electoral pressure on state judges is still constitutionally permissible. In 2000, Harold See, a member of the Alabama Supreme Court, ran for chief justice with a television advertisement about upholding death sentences; the narrator intoned that the judge was “fighting against minor technicalities that would let criminals off.”

Until the state of Alabama changes its laws or the U.S. Supreme Court takes up the challenge, it appears that a jury’s decision as to who should live or die may remain little more than a minor technicality.