Mimesis Law
8 December 2019

Will Judge Tracie Todd’s Death Penalty Decision Change Alabama’s Law?

Mar. 7, 2016 (Mimesis Law) — What is the “right thing to do” when you’ve got two years’ job security left as an elected judge and really hate certain state laws, even though they’re the law and you swore to uphold it? That’s got to be a question Alabama Circuit Court Judge Tracie Todd is asking herself in recent days.

A Jefferson County judge Thursday morning ruled that Alabama’s capital murder sentencing scheme, which allows judges to override jury recommendations of life without parole and instead impose the death penalty, is unconstitutional.

Judge Todd’s order issued on March 3rd, barring the imposition of a death sentence on four defendants in her court, is unique in numerous respects. It’s going to be appealed, since the public loves “tough on crime” more than they care for concepts like “the right thing to do,” “fair and impartial,” or that old standby, “constitutional.”

It voices strong opinions on how capital cases are decided and the death penalty imposed in Alabama. It’s someone in a black robe acknowledging they get information and have power the jury doesn’t when making the decision to take a life, and saying “the death penalty will not be considered in my court.”

When a person is convicted of a capital offense in Alabama, the court is required to hold a separate sentencing hearing “as soon as practicable” after conviction to determine whether the defendant gets life without parole or death.  Prior to the hearing, which may include the jury, the judge will get a pre-sentencing report that is not confidential, and made part of the record but apparently not shown to the jury.

The judge is also obligated to review a pre-sentence report prepared by the State Board of Pardons and Paroles. This report is not made available to the jury.

The trial court will then hear evidence of any aggravating or mitigating factors presented by both sides, and the judge makes the final decision.  The jury will hear the evidence, and deliberate, and return a verdict, but it isn’t binding on the court.

The jury’s role is merely “advisory,” and if the person wearing the robe thinks the defendant should get death while the majority of the jury disagrees, then screw the majority. Off to the gallows the Defendant goes.

Essentially, the Alabama capital sentencing law allows a judge to overturn a jury recommendation without statutory guidelines to steer the final decision.

In January, the United States Supreme Court issued an opinion in Hurst v. Florida that held Florida’s sentencing scheme violated the Sixth Amendment because the judge had the final say when sentencing a person to death.  Just like in Alabama.

The Sixth Amendment protects a defendant’s right to an impartial jury. This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s factfinding. Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.

One defendant in the Alabama started the new year off by filing a Motion to Declare the Alabama Capital Murder Statute Unconstitutional and Bar the Death Penalty on New Year’s Day.  The United States Supreme Court issued the Hurst decision on January 12th. The Jefferson County District Attorney’s office filed their response to the defendant’s motion on February 1st, and the Motion hearing came on March 3rd.

Judge Todd apparently read the Hurst decision in the interim.  Her ruling heavily reflects that.  In complete fairness, it also reflects her disgust with the Alabama judicial election process, how the judicial branch is funded and staffed, the lack of courtroom security, and her extensive love of misleading footnotes. From the outside, it looks like Judge Todd is bating the DA’s office into appealing her ruling.

But Todd said her ruling likely will be appealed by prosecutors. If an appellate court were to uphold her ruling, then it would become a precedent and apply to cases around the state, attorneys said.

The Attorney General’s response to Judge Todd’s ruling sounds like they’ve taken the bait.

“Judge Todd’s ruling today is not a general pronouncement for the State of Alabama, but is strictly limited to the four cases upon which she ruled in the Jefferson County Circuit Court,” Alabama Attorney General Luther Strange said Thursday afternoon.  “Alabama’s capital sentencing statutes are constitutional. Just yesterday the Alabama Supreme Court denied the appeal of a capital murder defendant who had filed a similar pre-trial motion, and the Court refused to declare Alabama’s capital statute’s unconstitutional. We are currently reviewing the Judge’s written order, and expect to file an appeal. We fully expect today’s ruling by Judge Todd to be reversed.”

The practical result of Judge Todd’s ruling means the four defendants in this Order will get life without the possibility of parole, as will any others lucky enough to find themselves in front of Judge Todd for the next two years, since she’s up for reelection in 2018.

The theoretical result is that Judge Todd’s case becomes “precedent.” That’s all.  It won’t change the minds of elected officials who firmly believe the judiciary should have more say when taking a person’s life than the jury.

It won’t call for a reform in the capital sentencing scheme at the legislative level in the Yellowhammer State, and as Justice Sotomayor notes in Hurst, utteringstare decisisdoesn’t always fly as a legal argument.

Judge Todd is correct. Alabama’s current capital sentencing scheme violates the Sixth Amendment according to the Supreme Court’s Hurst opinion, and needs to be changed. But is attempting to set a “precedent” when you swore to uphold the law, no matter how reprehensible you may find parts of it, really “what’s right?”

Hopefully, Alabama’s legislature will hear Judge Todd’s call for reform.  Then we can see “what’s right” for people facing capital murder charges in a state that apparently places more emphasis on winning NCAA football championships than the Constitution.

5 Comments on this post.

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  • Richard G. Kopf
    7 March 2016 at 5:39 pm - Reply


    Whether you agree with her reasoned opinion or not, Alabama Circuit Court Judge Tracie Todd is a courageous young woman. Thanks for bringing her opinion to my attention. All the best.


    PS She also has an interesting life story that made the Chicago Tribune two years ago. See
    Leslie Mann, Courtside connection scores, Tracie and Wesley agree they were made for each other. Luckily, they made it to the same game, Chicago Tribune (March 23, 2014), available at http://articles.chicagotribune.com/2014-03-23/features/ct-sun-0323-love-notes–20140323_1_chicago-bulls-birmingham-chick-flicks.

    • CLS
      7 March 2016 at 6:30 pm - Reply

      Your Honor:

      I’m glad you took the time to comment. It’s not a question about whether I agree with her reasoning.

      I’ve lain my hand on a Bible four times in my life. One of them was when I became an attorney.

      The Circuit Court Judge who swore me in as a member in good standing of the Tennessee Bar has known me since I was a teenager. Before he swore me in, he took time to explain the oath to me. He explained there was a point in there that required em to “uphold and defend the laws and Constitution of the State of Tennessee and the United States of America.” He also told me that my word was my bond, and that there would be times I had to defend laws I didn’t like. If I wasn’t prepared to take that oath then I needed to back down.

      I have no doubt that Judge Todd took a similar oath. I have no doubt that Judge Todd believes what she is doing is “what’s right.”

      But is it, despite her courage and conviction?


      PS: If you’ve not read the story our resident Jurist linked in his comment and need a dose of faith in humanity, click on it.

  • Richard G. Kopf
    8 March 2016 at 8:56 am - Reply


    In what sense do you mean the rhetorical question: “[I]s attempting to set a ‘precedent’ when you swore to uphold the law, no matter how reprehensible you may find parts of it, ‘really what’s right?’” As I understand the word “precedent,” the judge did not set a precedent. She made a decision for herself binding, if at all, only on her. So, perhaps you could refine your question so I better understand it.

    Sorry for being slow. I can’t help it. Indeed, lots of folks refer to me as a dummkopf.

    All the best.


    • CLS
      8 March 2016 at 4:52 pm - Reply

      Your Honor:

      I phrased the question with “what’s right” because Judge Todd ran on a slogan of “It’s Time For What’s Right.”

      “What’s right” is from my perspective standing by your convictions. And it seems Judge Todd is fearless in doing so. But how do you work within the oath you take as a jurist and stand by your convictions?

      If she’s truly doing “what’s right,” where does that stand? Would it simply be better, if you were opposed to the death penalty, to use the “judicial override” you’ve got and say if a jury returns “Death” you say “Life in Prison. Death doesn’t fly in my court.”?

      Or do you say “Based on the Hurst opinion, the death penalty will not be considered in these four cases?” Is that more of the “right” thing to do?

      It’s an issue I’m trying to parse as I consider the ramifications of this.

      Regardless, she is indeed courageous for her convictions.

      And I’ll be the last person on this planet to call you “slow.”


  • Dean
    20 June 2016 at 8:34 am - Reply

    So I assume your pronouncement of Judge Todd is correct. Alabama’s current capital sentencing scheme violates the Sixth Amendment WILL BE revoked and you will now agree as the FULL appeals court has that she USED personal arguments over FACT. She is an incompetent judge. She never had the right to issue the ruling or bar the attorney general from being heard. Typical liberal junk court ruling that wasted months. The DP is here to stay no matter how hard the liberals try to end it.