No.
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2017
_____________________________________
VERNON MADISON, Petitioner,
v.
STATE OF ALABAMA, Respondent.
________________________________________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE ALABAMA SUPREME COURT
________________________________________
PETITION FOR A WRIT OF CERTIORARI
________________________________________

B RYAN A. S TEVENSON
C OUNSEL OF R ECORD
R ANDALL S. S USSKIND
A NGELA L. S ETZER
Equal Justice Initiative
122 Commerce Street
Montgomery, AL 36104
(334) 269-1803
bstevenson@eji.org
rsusskind@eji.org
asetzer@eji.org
Counsel for Petitioner
January 24, 2018
CAPITAL CASE WITH AN EXECUTION
SCHEDULED FOR JANUARY 25, 2018
at 6:00 pm

 CAPITAL CASE
QUESTION PRESENTED
Vernon Madison was sentenced to death by a circuit judge despite a jury
verdict for life. In 2017, Alabama abolished the practice of judicial override.
This case thus gives rise to the following question:
Now that the State of Alabama has abolished the practice of judicial
override, does the execution of a prisoner who was sentenced to life
by a jury render his execution arbitrary and capricious in violation
of the Eighth and Fourteenth Amendments to the United States
Constitution?

i

 TABLE OF CONTENTS
QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL PROVISIONS INVOKED. . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
REASONS FOR GRANTING THE WRIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I.

MR. MADISON’S DEATH SENTENCE WAS IMPOSED IN
VIOLATION OF
THE EIGHTH AND FOURTEENTH
AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

II.

EXECUTING MR. MADISON DESPITE THE ABOLITION OF
JUDICIAL OVERRIDE VIOLATES THE EQUAL PROTECTION
AND DUE PROCESS CLAUSES OF THE FOURTEENTH
AMENDMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

III.

JUDICIAL OVERRIDE VIOLATES HURST V. FLORIDA AND
THE SIXTH AND FOURTEENTH AMENDMENTS.. . . . . . . . . 21

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
APPENDIX A

Order Denying Petition for Relief from Unconstitutional
Sentence and For a Stay of Execution

ii

 TABLE OF AUTHORITIES
CASES
Atkins v. Virginia, 536 U.S. 304 (2002). . . . . . . . . . . . . . . . . . . . . . 10, 12, 13, 14
Batson v. Kentucky, 476 U.S. 79 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4
Brooks v. Alabama, 136 Southern Ct. 708 (2016). . . . . . . . . . . . . . . . . . . . . . . 22
Cleburne v. Cleburne Living Center, Incorporated, 473 U.S. 432 (1985). . . . 19
Furman v. Georgia, 408 U.S. 238 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 20
Gardner v. Florida, 430 U.S. 349 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Gregg v. Georgia, 428 U.S. 153 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Harris v. Alabama, 513 U.S. 504 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Hildwin v. Florida, 490 U.S. 638 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Hurst v. Florida, 136 Southern Ct. 616 (2016). . . . . . . . . . . . . . . . . . . . . . 21, 22
Kennedy v. Louisiana, 554 U.S. 407 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . 9, 11
Lockett v. Ohio, 438 U.S. 586 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Madison v. Comm’r, Ala. Department of Corr., 677 F.3d 1333 (11th Cir. 2012).
4, 5
Madison v. Comm’r, Ala. Department of Corr., 761 F.3d 1240 (11th Cir. 2014).5
Madison v. Comm’r, Ala. Department of Corr., 851 F.3d 1173 (11th Cir. 2017).6
Ex parte Madison, 718 So. 2d 104 (Ala. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Madison v. State, 620 So. 2d 62 (Ala. Crim. App. 1992). . . . . . . . . . . . . . . 2, 3, 4
Madison v. State, 718 So. 2d 90, 97 (Ala. Crim. App. 1997). . . . . . . . . . . . . . . . 3

iii

 Madison v. State, 999 So. 2d 561 (Ala. Crim. App. 2006). . . . . . . . . . . . . . . . . . 4
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976). . . . . . . 20
Obergefell v. Hodges, 135 Southern Ct. 2584 (2015). . . . . . . . . . . . . . . . . . . . 20
Order, Madison v. Dunn, Number 16-00191-KD-M, 2016 WL 2732193
(S.D. Ala. May 10, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Patterson v. McLean Credit Union, 491 U.S. 164 (1989). . . . . . . . . . . . . . . . . 22
Penry v. Lynaugh, 492 U.S. 302 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Roper v. Simmons, 543 U.S. 551 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Ross v. Moffitt, 417 U.S. 600 (1974).. . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16, 19
Spaziano v. Florida, 468 U.S. 447 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Ex parte Taylor, 808 So. 2d 1215 (Ala. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . 18
Thomas v. Madison, 568 U.S. 1019 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trop v. Dulles, 356 U.S. 86 (1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12
Tuilaepa v. California, 512 U.S. 967 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Weeks v. State, 663 So. 2d 1045 (Ala. Crim. App. 1995). . . . . . . . . . . . . . . . . . 5
Ex parte Wesley, 575 So. 2d 127 (Ala. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Witherspoon v. Illinois, 391 U.S. 510 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Woodson v. North Carolina, 428 U.S. 280 (1976). . . . . . . . . . . . . . . . . . . . . 8, 17
Woodward v. Alabama, 134 Southern Ct. 405 (2013). . . . . . . . . . . . . . . . . . . . . 3
Zant v. Stephens, 462 U.S. 862 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iv

 STATUTES
28 U.S.C. § 1257(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 2254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2016 Fla. Sess. Law Serv. Ch. 2016-13 (H.B. 7101). . . . . . . . . . . . . . . . . . . . . 10
Ala. Code § 13A-5-47.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11
Act No. 2017-131, Ala. Acts 2017 (“S.B. 16”). . . . . . . . . . . . . . . . . . . . . . . . . 7, 11
U.S. Const. amend. VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
MISCELLANEOUS
Bill Advances to Take Away AL judges’ ability to override juries,WSFA,
F
e
b
.
2
4
,
2
0
1
7
,
http://www.wsfa.com/story/34601206/bill-advances-to-take-awayal-judges-ability- to-override-juries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Equal Justice Initiative, The Death Penalty in Alabama: Judicial Override
(2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6
Equal
Justice
Initiative,
List
of
Override
Cases,
https://eji.org/sites/default/files/list-alabama-override-cases.pdf (last
updated Jan. 12, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Equal Justice Initiative, Study Reveals Geographic Disparities in Death
Sentencing Among Alabama Counties, May 1, 2008,
https://eji.org/news/study-geographic-disparities-death-sentencing
-alabama-counties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Katheryn K. Russell, The Constitutionality of Jury Override in Alabama
Death Penalty Cases, 46 Ala. L. Rev. 5, 32-35 (1994).. . . . . . . . . . . . . . 17
Ken Silverstein, The Judge as Lynch Mob, The American Prospect, Dec.
19, 2001, http://prospect.org/article/judge-lynch-mob. . . . . . . . . . . . . . . 14

v

 Vernon Madison is scheduled to be executed by the State of
Alabama on January 25, 2018, at 6:00 pm. He respectfully petitions this
Court for a writ of certiorari to review the judgment of the Alabama Supreme
Court in this case.
OPINIONS BELOW
The Alabama Supreme Court denied Mr. Madison’s Petition for Relief from
Unconstitutional Sentence and for Stay of Execution in a one page order on
Wednesday, January 24, 2018. That order is attached as Appendix A.
STATEMENT OF JURISDICTION
The Alabama Supreme Court denied relief on Mr. Madison’s petition for
relief from an unconstitutional sentence and for a stay of execution on January
24, 2018. Jurisdiction is properly invoked pursuant to 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISIONS INVOKED
The Sixth Amendment to the United States Constitution provides in
relevant part:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury . . . .
The Eighth Amendment to the United States Constitution provides in
relevant part:
Excessive bail shall not be required, nor excessive fines imposed, nor

1

 cruel and unusual punishments inflicted.
The Fourteenth Amendment to the United States Constitution provides
in relevant part:
No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall
any state deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
STATEMENT OF THE CASE
A.

Prior Proceedings
Vernon Madison was indicted on two counts of capital murder on May 20,

1985, in the Mobile County Circuit Court in Mobile, Alabama. Madison v. State,
620 So. 2d 62, 62 (Ala. Crim. App. 1992). The charges arose from the death of
City of Mobile police officer Julius Schulte on April 18, 1985. Id. at 63-64. On
September 12, 1985, a jury found Mr. Madison guilty of capital murder, and the
trial court subsequently sentenced him to death. Id. at 63. The Alabama Court
of Criminal Appeals reversed Mr. Madison’s conviction and sentence after
concluding that the Mobile County District Attorney’s Office had engaged in
racially discriminatory jury selection when it struck all seven qualified African
American veniremembers, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

2

 Madison v. State, 545 So. 2d 94, 95-99 (Ala. Crim. App. 1987).
At the second trial, Mr. Madison did not deny shooting the victim; rather,
his primary defense was that he was not guilty by reason of mental disease or
defect. Madison, 620 So. 2d at 65. On September 14, 1990, Mr. Madison was
again convicted of capital murder, and the trial court imposed a sentence of
death. Madison, 620 So. 2d at 63. The Alabama Court of Criminal Appeals
reversed on the ground that the State had engaged in prosecutorial misconduct
when it elicited expert testimony “based partly on facts not in evidence,” in
violation of Ex parte Wesley, 575 So. 2d 127 (Ala. 1990). Madison, 620 So. 2d at
73.
Mr. Madison’s third trial was held from April 18, 1994, through April 21,
1994. At the guilt phase of trial, Mr. Madison again did not deny that he shot the
victim, but claimed that he did so in self-defense. Madison v. State, 718 So. 2d
90, 97 (Ala. Crim. App. 1997). On April 21, 1994, the jury found Mr. Madison
guilty of capital murder. After hearing significant evidence concerning Mr.
Madison’s profound history of mental illness, the same death-qualified jury voted
to sentence Mr. Madison to life imprisonment without parole. On July 7, 1994,
Judge Ferrill McRae 1 overrode the jury’s verdict and sentenced Mr. Madison to
1

In his time on the bench, Judge McRae overrode six life verdicts, more than any
other judge in the state of Alabama. See Woodward v. Alabama, 134 S. Ct. 405,
409 (2013) (Sotomayor, J., dissenting) (“One Alabama judge, who has overridden
jury verdicts to impose the death penalty on six occasions, campaigned by
3

 death. Mr. Madison’s case was affirmed on appeal, Madison v. State, 718 So. 2d
90 (Ala. Crim. App. 1997), aff’d, Ex parte Madison, 718 So. 2d 104 (Ala. 1998),
and this Court denied certiorari review, Madison v. Alabama, 525 U.S. 1006
(1998).
Mr. Madison subsequently filed a petition for post-conviction relief
pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. The Alabama
Court of Criminal Appeals affirmed the dismissal of that petition without a
hearing, Madison v. State, 999 So. 2d 561 (Ala. Crim. App. 2006), and the
Alabama Supreme Court denied certiorari review.
On January 8, 2009, Mr. Madison timely filed his petition for habeas
corpus relief pursuant to 28 U.S.C. § 2254. The district court denied relief, but
the United States Court of Appeals for the Eleventh Circuit reversed the district
court’s denial in part on April 27, 2012, and remanded the case with instructions
for the district court to conduct a Batson hearing. Madison v. Comm’r, Ala. Dep’t
of Corr., 677 F.3d 1333 (11th Cir. 2012). In concurrence, Judge Barkett noted
concern for Alabama’s judicial override scheme: “because the sentencing decision

running several advertisements voicing his support for capital punishment. 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.” (citing Equal Justice Initiative, The Death
Penalty
in
Alabama:
Judge
Override
16
(2011),
http://eji.org/eji/files/Override_Report.pdf)).
4

 of the first decisionmaker—i.e., a presumed reasonable jury—can be ignored
without any limiting principles in favor of a sentence of death by the second
decisionmaker, I question whether it can be deemed constitutional.” Id. at 1340.
The State appealed that remand order to this Court, and the Court denied the
State’s Petition for Writ of Certiorari on November 13, 2012. Thomas v. Madison,
568 U.S. 1019 (2012). On April 25, 2013, the district court again denied Mr.
Madison’s petition for habeas corpus relief, and the United States Court of
Appeals for the Eleventh Circuit affirmed that denial on August 4, 2014.
Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240 (11th Cir. 2014). This
Court denied certiorari review on March 23, 2015. Madison v. Thomas, 135 S. Ct.
1562 (2015). This Court denied Mr. Madison’s petition for rehearing on May 18,
2015. Madison v. Thomas, 135 S. Ct. 2346 (2015).
By motion of the State, Vernon Madison was scheduled to be executed on
May 12, 2016.

His motion to suspend the execution as a result of his

incompetency was denied by the Mobile County Circuit Court on April 29, 2016.
Pursuant to Alabama law, appellate review of that decision in the Alabama state
courts was unavailable. See Weeks v. State, 663 So. 2d 1045, 1046 (Ala. Crim.
App. 1995).
On May 4, 2016, Mr. Madison filed a petition for habeas corpus and a
motion for a stay of execution in the United States District Court for the

5

 Southern District of Alabama. Petition for Writ of Habeas Corpus, Madison v.
Dunn, No. 1:16-cv-00191-KD-M (S.D. Ala. May 4, 2016). On May 10, 2016, the
district court denied Mr. Madison’s habeas petition and motion for a stay. Order,
Madison v. Dunn, No. 16-00191-KD-M, 2016 WL 2732193 (S.D. Ala. May 10,
2016). On May 12, 2016, the Eleventh Circuit Court of Appeals granted Mr.
Madison’s motion for a certificate of appealability, stayed the execution, and
ordered expedited briefing and oral argument in the case. Order, Madison v.
Dunn, No. 16-12279 (11th Cir. May 12, 2016).
After full merits briefing and oral argument, the Eleventh Circuit Court
granted habeas corpus relief, finding that by virtue of his vascular dementia and
related medical impediments, Mr. Madison was not competent to be executed.
Madison v. Comm’r, Ala. Dep’t of Corr., 851 F.3d 1173, 1190 (11th Cir. 2017).
After this Court issued its per curiam opinion reversing the Eleventh Circuit’s
grant of habeas corpus relief while expressing “no view on the merits of the
underlying question,” Dunn v. Madison, 138 S. Ct. 9, 12 (2017), as it was not
“appropriately presented,” id. (Ginsburg, J., concurring), the State of Alabama
immediately sought and obtained an expedited execution date for Mr. Madison
of January 25, 2018.
B.

How the Federal Question was Raised Below
In April, 2017, both houses of Alabama’s legislature voted to end judicial

6

 override. See Act No. 2017-131, Ala. Acts 2017 (“S.B. 16”). On April 11, 2017,
Governor Kay Ivey signed Senate Bill 16 into law, which prohibited any further
practice of judicial override in Alabama capital cases. See Ala. Code § 13A-5-47
(“Where a sentence of death is not returned by the jury, the court shall sentence
the defendant to life imprisonment without parole.”).
Because a death sentence is no longer permissible in cases where the jury
has returned a sentence of life, Mr. Madison filed a challenge to his death
sentence and scheduled execution in the Alabama Supreme Court. He contended
that this execution would be arbitrary and capricious and constitute a violation
of the Sixth, Eighth and Fourteenth Amendment. The Alabama Supreme Court
denied his petition on January 24, 2018.
REASONS FOR GRANTING THE WRIT
Vernon Madison was sentenced to death by Mobile County Circuit Court
Judge Ferrill McRae despite the fact that the jury who heard his case decided
that he should not be sentenced to death and instead returned a sentence of life
imprisonment without parole. At the time of his trial and conviction, Alabama
law permitted a judge to reject a jury’s considered verdict.
In 2017, the State of Alabama repealed its judicial override statute, thus
joining the rest of the country in abolishing the practice of judicial override.
Given Alabama’s rejection of judicial override, the death sentence in this case

7

 constitutes cruel and unusual punishment and violates Mr. Madison’s rights to
a jury, fair and reliable sentencing and to due process and equal protection of the
laws as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments of
the United States Constitution and Alabama law.
I.

MR. MADISON’S DEATH
V IO LA TIO N O F
TH E
AMENDMENTS.

SENTENCE WAS IMPOSED IN
E IG H TH A N D FO U R TE ENTH

The Eighth Amendment requires that there be a “meaningful basis for
distinguishing the few cases in which [the death penalty] is imposed from the
many cases in which it is not.” Furman v. Georgia, 408 U.S. 238, 313 (1972).
Since reinstating the death penalty in Gregg v. Georgia, the U.S. Supreme Court
has barred “sentencing procedures that create[] a substantial risk that [a death
sentence] would be inflicted in an arbitrary and capricious manner.” 428 U.S.
153, 188 (1976) (plurality opinion); see also Gardner v. Florida, 430 U.S. 349, 358
(1977) (plurality opinion) (“It is of vital importance to the defendant and to the
community that any decision to impose the death sentence be, and appear to be,
based on reason rather than caprice or emotion.”); Woodson v. North Carolina,
428 U.S. 280, 305 (1976) (plurality opinion) (recognizing the heightened “need
for reliability in the determination that death is the appropriate punishment in
a specific case”).2
2

See also Zant v. Stephens, 462 U.S. 862, 885 (1983); Lockett v. Ohio, 438 U.S.
586, 605 (1978) (plurality opinion)(“[T]he risk that the death penalty will be
8

 Allowing Vernon Madison to be executed, when a sentence of death is no
longer permitted under Alabama law constitutes the kind of arbitrariness that
violates the Eighth and Fourteenth Amendments and should not be permitted
by this Court.
A.

Mr. Madison’s Sentence of Death, Imposed by a Judge Over
a Jury’s Life Verdict, Violates the Eighth Amendment
Because There Is Unanimous State Agreement that a Jury’s
Verdict Should Be Final.

The Eighth Amendment’s prohibition on cruel and unusual punishment
“draw[s] its meaning from the evolving standards of decency that mark the
progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958). This
Court has found that this means that “resort to the [death] penalty must be
reserved for the worst of crimes and limited in its instances of application.”
Kennedy v. Louisiana, 554 U.S. 407, 446–47 (2008). Because a national
consensus has emerged against judicial override, Alabama’s execution of
individuals such as Vernon Madison who were sentenced to death by a judge
despite a jury life verdict prior to the abolition of jury override in Alabama
violates the Eighth Amendment’s prohibition on cruel and unusual punishment.

imposed in spite of factors which may call for a less severe penalty . . . is
unacceptable and incompatible with the commands of the Eighth and
Fourteenth Amendments.”).

9

 The “clearest and most reliable objective evidence of contemporary values
is the legislation enacted by the country’s legislatures” as well as “state
practice.”

Atkins v. Virginia, 536 U.S. 304, 312 (2002) (quoting Penry v.

Lynaugh, 492 U.S. 302 (1989)); Roper v. Simmons, 543 U.S. 551, 563 (2005)
(finding “objective indicia of society’s standards” are “expressed in legislative
enactments and state practice”). Although there are currently thirty-one (31)
states that have active death penalty statutes, none of these states permits a
judge to impose the death penalty after a jury verdict for life. Judicial override
is thus inconsistent with current societal values.
The “consistency of the direction of change” is also significant. Atkins, 536
U.S. at 315. Before 2016, all but three states’ death penalty schemes respected
the jury’s decision on whether to impose death or life imprisonment as final. See
Equal Justice Initiative, The Death Penalty in Alabama: Judicial Override 11
(2011).

Only Florida, Delaware, and Alabama permitted judicial override,

though Alabama was the only state to allow override without guiding standards.
Id. In 2016, however, the Florida legislature abolished judicial override and
revised the state’s death penalty scheme. See 2016 Fla. Sess. Law Serv. Ch.
2016-13 (H.B. 7101). Although not by legislative action, Delaware also ended
judicial override in 2016 through a decision of the Delaware Supreme Court,
Rauf v. State, 145 A.3d 430, 434 (2016) (per curiam), which then applied the

10

 decision retroactively to invalidate all death sentences, Powell v. State, 153 A.3d
69, 75-76 (2016) (per curiam). Finally, in early 2017, both houses of Alabama’s
legislature voted to end judicial override. See Act No. 2017-131, Ala. Acts 2017
(“S.B. 16”). On April 11, 2017, Governor Kay Ivey signed Senate Bill 16 into law,
which prohibited any further practice of judicial override in Alabama capital
cases. See Ala. Code § 13A-5-47 (“Where a sentence of death is not returned by
the jury, the court shall sentence the defendant to life imprisonment without
parole.”).
As a result, no state currently allows a judge to override a jury’s capital
sentencing verdict. This constitutes not merely “national consensus,” see
Kennedy, 554 U.S. at 426, but unanimous agreement that a sentence of death
imposed by a judge contrary to a jury’s life verdict does not comport with our
evolving standards of decency and the Eighth Amendment.
The abolition of judicial override further implicates a more basic
expression of a society’s evolving standards. As the United States Supreme
Court has explained:
“[O]ne of the most important functions any jury can perform in
[deciding whether to impose death in a given case] is to maintain a
link between contemporary community values and the penal
system—a link without which the determination of punishment
would hardly reflect ‘the evolving standards of decency that mark
the progress of a maturing society.’”
Witherspoon v. Illinois, 391 U.S. 510, 519 n.15 (1968) (quoting Trop); see also
11

 Atkins, 492 at 323-24 (Rehnquist, J., dissenting) (“[T]he actions of sentencing
juries, though entitled to less weight than legislative judgments, is a significant
and reliable objective index of contemporary values . . . .” (quotations and
citations omitted)). By abolishing judicial override, Alabama and other states
have sought to strengthen that link and prevent the interposition of a trial
judge’s actions between the Eighth Amendment’s orientation to evolving
standards and the fundamental expression of those standards by community
members. Here, the life verdict rendered by the Mobile County jury was an
expression of community values and, under the Eighth Amendment, it should
be respected.3
Because there is unanimous agreement among the states that a jury’s
decision as to whether to impose death or life imprisonment is final and because
the jury voted to sentence Mr. Madison to life, Mr. Madison’s sentence of death
3

As Alabama State Senator Dick Brewbaker, a proponent of the bill to abolish
judicial override commented:
One of the most important things about our democracy is our laws
are derived from the common law, . . . .That’s why a crime of
violence is a crime against a community. That’s why we have a trial
in the community. That’s why we pick a jury of the community and
they decide guilt, innocence, and punishment. Judicial override flies
in the face of that. You are entitled to a trial of a jury of your peers,
and that ought to apply to sentencing too.
See Bill Advances to Take Away AL judges’ ability to override juries,WSFA, Feb.
24,
2017,
http://w w w .w sfa.com /story/3460120
6/bill-advances-to-take-away-al-judges-ability- to-override-juries.
12

 and impending execution violate the Eighth Amendment.
B.

Mr. Madison’s Sentence of Death, Imposed by a Judge Over
a Jury’s Life Verdict, Violates the Eighth Amendment
Because it is Arbitrary and Capricious.

Although trial judges in Alabama previously had the authority to override
either life or death verdicts, ninety-two percent of judicial overrides resulted in
sentences of death. See Equal Justice Initiative, The Death Penalty in Alabama:
Judge Override 14 (2011), http://eji.org/eji/files/Override_Report.pdf.
Override outcomes strongly suggest racial and geographic disparities in
override cases which raise another set of concerns about the integrity and
reliability of judge override. For example, Alabama circuit judges overrode “jury
life verdicts in cases involving white victims much more frequently than in cases
involving victims who are black.” Equal Justice Initiative, The Death Penalty in
Alabama: Judge Override 5 (2011), http://eji.org/eji/files/Override_Report.pdf.
Indeed, “[s]eventy-five percent of all death sentences imposed by override
involve[d] white victims, even though less than 35% of all homicide victims in
Alabama are white.” Id. Some courts revealed racial bias by referencing the race
of the offender in their sentencing orders, and one judge explained his imposition
of the death penalty despite a life verdict as he “had sentenced three black
defendants to death so he decided to override the jury’s life verdict for a white
defendant to balance out his sentencing record.” Id.; see also Woodward, 134 S.

13

 Ct. at 409-10 (Sotomayor, J., dissenting) (“These results do not seem to square
with our Eighth Amendment jurisprudence . . . .”). Judge McRae, the sentencing
judge in this case, never overrode a jury death verdict, “even when an all-white
jury condemned a retarded black man who couldn’t read the confession that he
signed.” 4 Of Judge McRae’s six overrides from life to death, five of the defendants
were black men.5
Geographic disparities exist as well: defendants who stand trial in certain
counties are uniquely vulnerable to a judge overturning a jury verdict for life, in
violation of the Equal Protection Clause of the Fourteenth Amendment. See Ross
v. Moffitt, 417 U.S. 600, 609 (1974). This is because some Alabama counties have
highly disproportionate rates of death sentences imposed by judicial override as
compared to other counties. Significantly, just three of Alabama’s 67 counties

4

Id. In 2001, a journalist, investigating Alabama’s death penalty practice,
traveled to Mobile and talked with local members of the bar about Judge McRae.
One attorney stated that “[w]hen an African American in his [Judge McRae’s]
courtroom wears a noticeable cologne, Judge McRae has been known to sniff the
air and exclaim, ‘Ahhhh, evening in Prichard’– the name of a poor,
predominantly black city outside of Mobile.” Another attorney “recalled needing
the judge’s signature on a client’s bail-reduction application. McRae first wanted
to know the client’s ‘color.’ When informed that he was black, McRae supposedly
told the attorney that he ‘shouldn't try too hard because we need more n***ers
in jail.’” Ken Silverstein, The Judge as Lynch Mob, The American Prospect, Dec.
19, 2001, http://prospect.org/article/judge-lynch-mob.
5

Equal
Justice
Initiative,
List
of
Override
Cases,
https://eji.org/sites/default/files/list-alabama-override-cases.pdf (last updated
Jan. 12, 2016).
14

 account for nearly 50% of the life-to-death overrides across the state. See Equal
Justice Initiative, The Death Penalty in Alabama: Judge Override 17 (2011),
http://eji.org/eji/files/Override_Report.pdf. Mobile County, where Mr. Madison
was tried and sentenced, accounts for 10% of death sentences imposed statewide
since 1977, but Mobile judges imposed 16% of Alabama’s life-to-death overrides
in that same period. Id. Moreover, the rate of judicial overrides per county does
not rationally correspond with those same counties’ rates of death sentences.
For instance, in 2008, Houston County, with a population of approximately
95,660 and the highest per capita death sentencing rate in the state, sent sixteen
times more people to death row than Lee County, which has a population of
approximately 125,781. See Equal Justice Initiative, Study Reveals Geographic
Disparities in Death Sentencing Among Alabama Counties, May 1, 2008,
https://eji.org/news/study-geographic-disparities-death-sentencing-alabama-co
unties. However, a Houston County judge has never overridden a jury’s verdict
from life to death, while Lee County judges have done so on four different
occasions. See Equal Justice Initiative, The Death Penalty in Alabama: Judge
Override at 17.
Finally, the disproportionate use of judicial override can be attributed to
the “tough on crime” politics of certain judges who are especially willing to
overturn jury verdicts for life without parole. See Woodward, 134 S. Ct. at 408-

15

 09 (Sotomayor, J., dissenting) (“What could explain Alabama judges’ distinctive
proclivity for imposing death sentences in cases where a jury has already
rejected that penalty? . . . The only answer that is supported by empirical
evidence is one that, in my opinion, 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.”) Not only has Mobile Circuit Judge
Ferrill McRae overridden more jury life verdicts than any other single Alabama
judge, he is one of only three judges in the state to override more than three jury
life verdicts. Equal Justice Initiative, The Death Penalty in Alabama at 17.
In this case, Mr. Madison’s death sentence was imposed without
protections against the “whim, passion, prejudice, or mistake” of an elected trial
judge. Elected trial judges may have many different reasons, including political
ones, for choosing to override a jury’s life verdict.6 And in the absence of any
procedural protections, jury verdicts of life imprisonment without parole play
unpredictable and indeterminate roles in the sentencing process and have been
rejected, as in this case, for reasons that remain wholly undisclosed.

See

Katheryn K. Russell, The Constitutionality of Jury Override in Alabama Death
Penalty Cases, 46 Ala. L. Rev. 5, 32-35 (1994). Thus, there is no guarantee that

6

Senator Brewbaker highlighted the need to eliminate judicial override in part
because it “taints the process,” and is used to “pressure [judges] in election
years.” See supra note 2.
16

 the process by which Mr. Madison was sentenced was “neutral and principled so
as to guard against bias or caprice in the sentencing decision.” Tuilaepa v.
California, 512 U.S. 967, 973 (1994).
The judicial override in this case resulted in a death sentence that is
arbitrary, disproportionate, and unconstitutional. See Woodson, 428 U.S. at 305
(requiring “reliability” in imposition of sentence of death). Allowing Mr.
Madison’s sentence to stand would violate the Eighth and Fourteenth
Amendment guarantees of reliable capital sentencing.
II.

EXECUTING MR. MADISON DESPITE THE ABOLITION OF
JUDICIAL OVERRIDE VIOLATES THE EQUAL PROTECTION
AND DUE PROCESS CLAUSES OF THE FOURTEENTH
AMENDMENT.
Given that Alabama no longer permits a prisoner to be sentenced to death

where the jury has returned a verdict of life, the execution of Mr. Madison,
where the trial court imposed death despite a jury verdict for life violates the
Fourteenth Amendment’s guarantee to equal protection of the laws and due
process, as well as Mr. Madison’s fundamental rights against the arbitrary and
capricious imposition of death. In 2017, Alabama became the last state to end
the practice of allowing a judge to impose death where a jury has voted for life,
Act No. 2017-131, Ala. Acts 2017 (“S.B. 16”), and since that time Alabama has
not sought to execute an individual whose sentence of death was the result of

17

 judicial override.7
Whether executing a man pursuant to a sentence imposed over a jury’s life
verdict after the practice has been abolished in all states violates the Equal
Protection Clause of the Fourteenth Amendment is a unique question that no
court has answered or had the opportunity to consider. Prior cases before this
Court have not fully addressed equal protection and judicial override in any way.
For example, in Harris v. Alabama, this Court approved the practice of judicial
override, prior to its abolition, under the Eighth Amendment but stated “[Harris]
does not bring an equal protection claim.” 513 U.S. 504, 515 (1995); see also,
e.g., Ex parte Taylor, 808 So. 2d 1215, 1217 n.2 (Ala. 2001) (dismissing equal
protection argument concerning differentiation between those whose life verdict
is overridden and those whose life verdict is followed where no authorities or
evidence cited).
A.

Executing Mr. Madison Although Everyone Sentenced After
2017 Cannot Be Similarly Sentenced Violates the Equal
Protection Clause of the Fourteenth Amendment.

As a result of the 2017 legislative abolition of judicial override, no person
tried today can be given the sentence Mr. Madison received, death where the
jury has voted for life, and no person sentenced today can eventually be executed

7

In 2017, since abolition of judicial override, Alabama has executed Tommy
Arthur, Robert Melson, and Torrey McNabb, none of whom were sentenced to
death over a jury’s life verdict.
18

 where the jury does not vote for death.
The Equal Protection Clause protects against “disparity in treatment by
a State between classes of individuals whose situations are arguably
indistinguishable,” Ross v. Moffitt, 417 U.S. 600, 609 (1974), and requires that
where such disparity exists there must be a valid basis for it, Cleburne v.
Cleburne Living Center, Inc., 473 U.S. 432, 441-42 (1985).

Regardless of

whether Mr. Madison’s status as a person sentenced to die over the will of a jury
prior to abolition constitutes membership in a protected class, there is simply no
legitimate basis for distinguishing between someone like Mr. Madison, who is
scheduled to be executed despite a jury’s life verdict, and a person sentenced to
death now, who by law cannot be sentenced to death if a jury does not will it.
For example, any argument as to the possibility of extensive litigation is
inaccurate given the limited number of people affected and the clear line of
demarcation for the class, the presence of a life verdict. Where as here there is
no basis for distinction, the Equal Protection Clause of the Fourteenth
Amendment requires relief. Cleburne, 473 U.S. at 450.
B.

Executing Mr. Madison Following Abolition of Judicial
Override Violates His Fundamental Right to Be Free of
Arbitrary and Capricious Punishment.

Additionally, and in any case, Mr. Madison’s right to be free of the
arbitrary and capricious imposition of death is a fundamental right infringement

19

 of which requires satisfaction of strict scrutiny. The right to be free of the
arbitrary and capricious imposition of death is a fundamental right. See U.S.
Const. amend. VIII; Gregg v. Georgia, 428 U.S. 153, 188 (1976) (joint opinion of
Stewart, Powell, and Stevens, JJ.) (noting “penalty of death is different in kind
from any other punishment” and explaining “Because of the uniqueness of the
death penalty, Furman held that it could not be imposed under sentencing
procedures that created a substantial risk that it would be inflicted in an
arbitrary and capricious manner.”); see also Obergefell v. Hodges, 135 S. Ct.
2584, 2598 (2015) (“The identification and protection of fundamental rights . . .
requires courts to exercise reasoned judgment in identifying interests of the
person so fundamental that the State must accord them its respect.”). Thus,
carrying out the death penalty in a case like Mr. Madison’s where the jury voted
for life despite the abolition of judicial override must overcome strict scrutiny.
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312 (1976) (“equal
protection analysis requires strict scrutiny” where fundamental rights
infringed).

Here, the lack of retroactive applicability of judicial override

abolition in S.B. 16 and the State of Alabama’s plan to execute him violates Mr.
Madison’s fundamental right by treating him and others like him in a way that
no person can be now, by carrying out execution where a jury voted for life,
cannot withstand any constitutional scrutiny.

20

 III.

JUDICIAL OVERRIDE VIOLATES HURST V. FLORIDA AND THE
SIXTH AND FOURTEENTH AMENDMENTS.
In Hurst v. Florida, 136 S. Ct. 616 (2016), this Court held that the Sixth

Amendment requires that every fact necessary to impose a sentence of death
must be proven to a jury beyond a reasonable doubt. 136 S. Ct. at 621-22. In so
holding, Hurst invalidated death penalty sentencing schemes, such as Alabama’s
superseded law, that allowed for judicial override of a jury’s sentencing verdict
specifying life without parole. After Hurst, the Constitution is understood to
“require[] [states] to base [the imposition of a] death sentence on a jury’s verdict,
not a judge’s factfinding.” 136 S. Ct. at 624. In this case, Mr. Madison’s death
sentence was imposed by the trial court despite the fact that 1) the jury never
made a unanimous finding in the penalty phase as to the existence of any
aggravating circumstance beyond a reasonable doubt, and 2) the jury
affirmatively found that the aggravating circumstances did not outweigh the
mitigating circumstances, resulting in the return of a verdict of life without
parole. (R. 800.) Because the findings necessary for the imposition of a sentence
of death in this case were never made by the jury, but were instead made by the
judge, Mr. Madison’s sentence of death is unconstitutional.
Hurst also overruled the core precedent that was relied upon to uphold
Alabama’s judicial override system.

Twenty-three years ago, in Harris v.

Alabama, 513 U.S. 504 (1995), this Court upheld Alabama’s judicial override
21

 provisions against an Eighth Amendment challenge by relying on Hildwin v.
Florida, 490 U.S. 638 (1989) (per curiam), and Spaziano v. Florida, 468 U.S. 447
(1984).

See Harris, 513 U.S. at 509-10.

At the time, Hurst’s ruling was

particularly relevant to Alabama because this state’s death penalty statute was
nearly identical to the Florida statute that was struck down. See Harris, 513
U.S. at 508 (“Alabama’s death penalty statute is based on Florida’s sentencing
scheme . . . .”).

Against the State’s arguments, the Hurst Court explicitly

overruled Spaziano and Hildwin, explaining that “‘stare decisis does not compel
adherence to a decision whose underpinnings have been eroded by subsequent
developments of constitutional law.’” 136 S. Ct. at 623-24 (quoting Patterson v.
McLean Credit Union, 491 U.S. 164, 172 (1989)). Without the core precedent on
which it relied, Harris is no longer valid. See Brooks v. Alabama, 136 S. Ct. 708
(2016) (mem.) (Sotomayor, J., concurring in denial of cert.) (“This Court’s opinion
upholding Alabama’s capital sentencing scheme was based on and Hildwin[] and
Spaziano[], two decisions we recently overruled in Hurst[].”). Consequently, the
very basis for Mr. Madison’s death sentence is now unconstitutional.
CONCLUSION
For these reasons, Mr. Madison moves this Court to grant this certiorari
petition, stay his execution scheduled for January 25, 2018, and determine that
the judicial override in this case is unconstitutional.

22

 Respectfully submitted,
/s/ Bryan A. Stevenson
Bryan A. Stevenson
Randall S. Susskind
Angela L. Setzer
Equal Justice Initiative
122 Commerce Street
Montgomery, AL, 36106
(334) 269-1803
bstevenson@eji.org
asetzer@eji.org
rsusskind@eji.org

Counsel for Vernon Madison
January 24, 2018

23