[Breaking news update at 10:11 p.m. ET]
A federal appeals court granted Alabama inmate Kenneth Smith a last-minute stay of execution just hours before his death warrant was set to expire.
Smith was scheduled to be executed at 6 p.m. CT. The state of Alabama appealed the decision to the US Supreme Court.
[Previous story, published at 12:21 p.m. ET]
Alabama plans to execute on Thursday an inmate whose 11-1 jury vote in favor of a life sentence was overruled by the judge who chose the death penalty, a practice the state has since abolished.
Kenneth Smith, convicted of murder for his role in the 1988 killing of Elizabeth Sennett, should not be executed, his lawyers argued in a filing before the US Supreme Court. If he were tried today and his jury reached the same conclusion, they said, Smith would be ineligible for execution — not in Alabama or anywhere else, because no jurisdiction today allows the practice of judicial overruling.
Putting Smith to death despite the jury’s verdict, they say, would constitute cruel and unusual punishment, violating his constitutional protections under the Eighth Amendment.
Smith is one of four death row inmates to be executed this week after the Supreme Court on Wednesday rejected his request for a stay of execution. Stephen Barbee in Texas and Murray Hooper in Arizona were both executed on Wednesday, and Richard Fairchild in Oklahoma was executed on Thursday.
Smith’s scheduled execution comes as jury sentencing recommendations in death penalty cases are in the national spotlight. A jury failed to reach a unanimous recommendation in the Parkland school shooter’s sentencing trial, resulting in him being sentenced to life in prison.
Alabama became the latest US state in 2017 to abolish judicial override, which allowed judges to ignore a jury’s verdict of either life or death in capital cases and impose the alternative sentence. The new law, however, was not retroactive, and inmates like Smith, whose juries handed down what was then an “advisory” life sentence, remain on death row.
While the practice was previously allowed in three other states – Indiana, Florida and Delaware – Alabama judges routinely overruled jury votes for life, according to a 2011 report by the Equal Justice Initiative. At the time, judicial overreach accounted for about 20 percent of death sentences among the state’s death row inmates, the report said.
The Supreme Court has revisited the issue of judicial overruling in Alabama since it was struck down. In 2020, the court rejected the petition of another inmate, Calvin McMillan, who argued that his death sentence should be overturned, saying it was unconstitutional because the jury had voted for life.
Smith was convicted of murder in 1996, court documents show, for his role in a murder-for-hire scheme targeting Sennett, the wife of a local minister who had an affair and had taken out an insurance policy on his wife. could pay off his debts.
Sennett’s husband, Charles Sennett, recruited a man to kill his wife, according to court records. That man then recruited two others, one of whom was Smith, and Sennett agreed to pay $1,000 to kill his wife and make it look like she was killed in a burglary.
In March 1988, the men carried out the murder as planned, and Smith took a videotape from Sennett’s home, which he stored at his own residence.
Charles Sennett killed himself a week after killing his wife, records say, as the investigation began to focus on him. But Smith was arrested after authorities, acting on an anonymous tip, executed a search warrant at his home and found Sennett’s video.
He was convicted and sentenced to death, but an appeals court overturned that initial result and ordered a new trial, finding that the state had based peremptory challenges to the prospective jurors on their race.
Smith was re-sentenced at the retrial. But the jury was apparently swayed during the penalty phase, which takes place after the guilt phase in capital crimes trials. During the penalty phase, prosecutors and defense attorneys traditionally argue about aggravating and mitigating circumstances — reasons they say the defendant should be executed or given a lesser sentence such as life in prison without parole.
This time, the jury voted 11-1 to sentence him to life in prison without the possibility of parole, his lawyers wrote, hearing evidence about Smith’s “character and living conditions.”
The judge, however, found the aggravating factors outweighed the mitigating circumstances, Smith’s lawyers wrote, and overrode the jury’s vote, sentencing Smith to death.
The judicial override was intended to allow judges to effectively act as checks on juries, preventing them from handing down death sentences in arbitrary or discriminatory ways, Innocence Project lawyers wrote in a 2020 brief to the Supreme Court in support of its case McMillan.
Florida, Delaware and Indiana outlined specific standards for when a judge could override a jury’s lifetime vote, they wrote. In Florida and Delaware, for example, the facts supporting a death sentence had to be so convincing that no “reasonable person” would disagree.
As a result, judicial override of the death penalty rarely took place – or a large volume of cases where it was used were later overturned. In addition, judges in Florida, Delaware, and Indiana often used it to impose life sentences where juries had decided on death.
Alabama instituted no such safeguards, the lawyers’ brief says, and judges there only had to “review” the jury’s verdict.
The state abolished the practice in 2017 by amending the law to clarify that jury verdicts were no longer “advisory” but final.
“You deserve a trial by a jury of your peers, and that should also apply to sentencing,” Sen. Dick Brubaker, who sponsored the bill, told CNN affiliate WSFA in February 2017, before its passage of his bill.
“One of the most important things about our democracy is that our laws come from the common law,” said Brubaker, a Republican. “This is why a crime of violence is a crime against a community. That’s why we have a community test. That’s why we select a community jury and they decide guilt, innocence and punishment.”
