A little over two years ago, the U.S. Supreme Court in Hurst v. Florida ruled 8-1 it was unconstitutional for state judges to overrule jury sentencing recommendations in death penalty cases. The high court ruled a criminal defendant’s Sixth Amendment right to a trial by jury was violated if the jury was not permitted to decide every part of the case, including both guilt and sentence. That decision invalidated a Florida law, which made the jury’s sentencing verdict merely advisory and able to be overridden by the trial judge.

Following the Hurst decision, the few states (Alabama, Delaware, and Florida) which allowed judges to disregard jury recommendations abolished that practice, either by court decision or by new state legislation. On Jan. 25, the U.S. Supreme Court returned to the issue by granting a stay of execution to a longtime prison inmate in Alabama, who was convicted before the state passed a new law ending judicial overriding of jury verdicts.

Vernon Madison, now 67 and in poor health, has been on Alabama’s death row for more than 30 years, after being convicted in April 1985 for killing a Mobile policeman responding to a domestic dispute involving Madison — who was also charged with attempted murder for shooting his girlfriend, who survived the attack. When that conviction was overturned for the systematic exclusion of African-Americans from the jury, Madison was retried and again convicted in 1990.

When that verdict was overturned for prosecutorial misconduct, he was retried and reconvicted in 1994, but this time the jury voted for life imprisonment for the now-elderly inmate, who had suffered a series of strokes. The presiding judge, who had overridden more jury verdicts in capital cases than any other in state history, again did so in Madison’s case, sentencing him to death despite the jury’s recommendation.

In another appeal in November, the high court unanimously rejected a bid (Dunn v. Madison) to overturn Madison’s death sentence on the grounds that his claimed mental disabilities prevented him from remembering his trial or the crime on which he was convicted; the high court’s rebuff reversed a federal appeals court’s favorable ruling.

In the most recent legal battle, Madison’s lawyers, from the Montgomery-based Equal Justice Initiative filed a last-minute appeal to both the Alabama Supreme Court and the U.S. Supreme Court one day before Madison was scheduled to be executed. Meanwhile, lawyers for Alabama argued waiting that long to file their appeal was enough reason to deny it.

Madison’s latest appeal raises the question whether — now that Alabama, like all states, does not allow judges to override any part of a jury verdict— it would violate the Eighth Amendment’s ban on cruel and unusual punishment, as well as the Fourteenth Amendment’s requirements of due process and equal protection, to execute an inmate whose jury recommends life imprisonment, only to have the judge disregard their decision.

The Supreme Court only narrowly agreed to issue a stay to hear Madison’s appeal. At least four Justices must vote to hear an appeal, and three of the nine Justices – Samuel Alito, Jr., the only dissenter in the Hurst case, plus Clarence Thomas and Neil Gorsuch, the newest Justice, who replaced the late Antonin Scalia – dissented from granting Madison the stay of execution.

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).