Years ago, Penny White was cruising toward retention as a Justice on the Tennessee Supreme Court.  She was likely to become the first woman Chief Justice in that state.  And then a campaign started, in part focusing on a death penalty case that the court reversed – and that she joined in, but did not write. Penny White was defeated.

Rose Bird was the Chief Justice of California, and she too was defeated, in large part on a campaign that she was not sufficiently pro death penalty.

In those contexts, a decision (or non-decision) by the United State Supreme Court is interesting.

Justice Sonia Sotomayor dissented from the U.S. Supreme Court’s decision to deny cert for Woodward v. Alabama, a case of an Alabama defendant who was sentenced to death by an Alabama judge despite a jury’s contrary recommendation.

There are many, many fine judges in Alabama.  But, as we know since the decision in Caperton v. Massey, perceptions count.

Judges in Alabama have the authority to override a jury’s decision to impose the death penalty.  Justice Sotomayor wrote a dissent to the cert denial.  Alabama is one of only three states that allow judges to override sentencing decisions by juries, but in practice Alabama is the only state that uses the override to impose death.

In her dissent, Justice Sotomayor, joined in part by Associate Justice Stephen Breyer, focused on judicial review in capital cases, where judges have the power to impose a death sentence even if a jury does not recommend it. Sotomayor wrote that she had “deep concerns about whether [judicial review] offends the Sixth and Eighth Amendments,” which respectively guarantee a right to a speedy trial and forbid cruel and unusual punishment.

“There is no evidence that criminal activity is more heinous in Alabama than in other States, or that Alabama juries are particularly lenient in weighing aggravating or mitigating circumstances,” Sotomayor wrote.  “The only answer that is supported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the criminal justice system:  Alabama judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”