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The Supreme Court Faces a Matter of Life and Death

A jury spared Calvin McMillan’s life, but a judge sentenced him to death anyway. Will the Roberts court save or condemn him?

Chip Somodevilla/Getty Images

Millions of Americans who were reared on Law & Order and other courtroom dramas have a familiar, if slightly misleading, understanding of how criminal trials are supposed to work. The prosecution and the defense present their evidence and arguments to the court. A lawyer occasionally shouts something like “Objection!” and the judge drily responds with “Overruled!” or “Sustained!” The trial attorneys trade barrages of high-flown oratory. Then the jury deliberates and dramatically announces its verdict. If it was a capital case, that jury would also be charged with deciding whether the defendant lives or dies.

Until recently in Alabama, however, there was another step in death penalty cases: The trial judge could simply ignore the jury’s conclusion and send the defendant to death row anyway. Calvin McMillan is one of 35 death-row prisoners in the United States who received a life sentence from a jury of their peers, only to have the presiding judge sentence them to death instead. Thirty-two of those prisoners are from Alabama, where the state legislature recently scrapped the practice, McMillan’s lawyers told the Supreme Court in a petition for certiorari that the Court will consider Friday. Lawmakers did not make the change retroactive, and McMillan is now asking the Supreme Court to rule that his execution would violate the Eighth Amendment’s ban on cruel and unusual punishment.

“A system that determines who lives and who dies based on the timing of an election, or in this case, undue speculation about the jury’s level of exhaustion, cannot satisfy the heightened standard of reliability that the Eighth Amendment requires,” McMillan’s lawyers argued in their petition for the court. The Supreme Court’s conservative majority is not known for its solicitude toward death-row prisoners, to say the least. But it has shown a willingness to intervene in cases involving unusual practices that minimize a jury’s role in the outcome of trials.

A jury found McMillan guilty of murder in 2009 for killing a man in a Walmart parking lot, two years earlier, and stealing his truck. During the sentencing phase, McMillan’s lawyers told jurors about the extraordinarily difficult childhood and formative years that their client had endured. They recounted how McMillan was raised in extreme poverty and was subjected to physical and sexual abuse. They claimed that he used to draw pictures of sandwiches on paper when he was hungry and eat the drawings. And they noted that he had been shuffled through more than two dozen foster homes before he turned 18 years old.

In death penalty cases, jurors are supposed to weigh mitigating factors, such as a traumatic childhood or a lack of criminal history, with aggravating ones when deciding whether to condemn a defendant to execution. In McMillan’s case, the jury voted 8–4 to recommend that McMillan receive a life sentence instead for the killing. But the presiding judge was not bound by their conclusion under Alabama law at the time and chose to impose the death penalty. In explaining his move, the judge said he thought that the jurors may have started deliberations with more votes in favor of death and that the votes for life “only increased as they grew tired of the process,” suggesting without evidence that the jurors had been lazy or negligent in their duties.

“Under Alabama’s administration of judicial override, then, defendants could be—and, in many instances, were—sentenced to death over a jury recommendation of life based solely on the vagaries of the sentencing judge’s idiosyncrasies, electoral prospects, or biases,” McMillan’s lawyers told the court in their petition. “Experience has proven that judicial override cannot meet the Eighth Amendment’s heightened reliability requirements.”

Such reversals were explicitly authorized under Alabama law until 2017, when the state legislature passed a law to strip state judges of that discretion. Critics had argued it had been used disproportionately to hand down death sentences in cases with Black defendants, amplifying problems with racial bias in capital punishment. Judicial overrides also raised concerns about the arbitrary imposition of death sentences, one of the core problems that led to the death penalty’s abolition in the 1970s. A local judge told The Birmingham News after the state changed the system that he thought the Supreme Court would have eventually intervened if lawmakers hadn’t.

In 2013, Justice Sonia Sotomayor dissented from the court’s decision not to take up a judicial override case from Alabama. Her dissent, joined by Justice Stephen Breyer, focused on the political aspect of Alabama’s system at the time. “One Alabama judge, who has overridden jury verdicts to impose the death penalty on six occasions, campaigned by running several advertisements voicing his support for capital punishment,” she wrote. “One of these ads boasted that he had ‘presided over more than 9,000 cases, including some of the most heinous murder trials in our history,’ and expressly named some of the defendants whom he had sentenced to death, in at least one case over a jury’s contrary judgment.” Sotomayor concluded that “Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”

The Supreme Court previously upheld state laws that allowed judicial overrides, including the one at question in McMillan’s case. In the 1984 case Spaziano v. Florida, the majority rejected a challenge to Florida’s judicial override law at the time that claimed it led to the arbitrary imposition of death sentences. In 1995, the court also signed off on Alabama’s system in particular in Harris v. Alabama, ruling that states with override laws weren’t obligated to require judges to place any particular weight on the jury’s sentencing conclusions.

But that status quo has been contested in recent years. In the 2016 case Hurst v. Florida, the justices reconsidered their ruling in Spaziano and struck down Florida’s system, which merely required juries to render an “advisory sentence” and left the final determination to the trial judge. That ruling raised questions about Harris, the constitutionality of Alabama’s system, and judicial overrides in capital cases in general. But the justices have not offered more clarity on the subject thus far. If anything, they’ve muddied the waters further. In an Arizona capital case earlier this year, the majority quoted Antonin Scalia’s concurring opinion in a pre-Hurst case where he opined that “states that leave the ultimate life-or-death decision to the judge may continue to do so.”

Even if the court takes up McMillan’s case, victory may be a long shot. The Supreme Court is arguably more favorable toward the death penalty than at any time in the last two decades. Over the last two years, the court lost Ruth Bader Ginsburg, who had expressed support for revisiting the death penalty’s constitutionality, as well as Anthony Kennedy, who occasionally sided with the court’s liberals to limit the types of defendants who could be executed in America. Kennedy’s replacement with Brett Kavanaugh solidified a five-justice majority in favor of capital punishment in general. And while Amy Coney Barrett has yet to take part in a capital case since joining the court, she is expected to be far less averse to it than Ginsburg was.

There are still signs that the current justices are willing to root out unusual practices that diminish the importance of juries in criminal trials. Earlier this year, the Supreme Court ruled in Ramos v. Louisiana that the Sixth Amendment forbids the states from allowing juries to find defendants guilty in criminal cases without unanimous verdicts. The majority based its ruling in part on the Jim Crow origins of the Louisiana rule and a similar one in Oregon but also on the jury’s essential role in the American criminal justice system. If the court wants to ensure that the system Americans think they have is the one that they actually have, a definitive ruling on judicial overrides may be inevitable.