Opinion: Supreme Court gives Alabama another pass on its unconstitutional death penalty

While the main political spotlight these days is riveted on wherever President Trump happens to be — which is just the way he likes it — other parts of government continue to work, including the Supreme Court, which Monday rejected a challenge to the constitutionality of Alabama’s death penalty.

Why the court refused to hear the case is unknown — there was no accompanying comment. But the rejection leaves unresolved an apparent conflict between how Alabama decides who should die, and how the court has previously ruled such a decision must be reached.

In short, the court has held that only juries can make the finding of fact that makes a convicted murderer eligible for death. But in Alabama, a judge can sentence someone to death even if a jury recommends the sentence should be life without parole, or fails to reach a unanimous verdict of death.

The case the court refused to hear was filed by Thomas D. Arthur, who was convicted in the 1982 murder-for-hire of Troy Wicker, arranged by Wicker’s wife, with whom Arthur had had an affair (she spent 10 years in prison). A jury in Arthur’s third trial (convictions in the first two were overturned) recommended 11-1 for death. The judge then held his own sentencing hearing, found Arthur guilty of an aggravating factor making him eligible for capital punishment under Alabama law, and sentenced him to death.

But the U.S. Supreme Court’s Hurst ruling requires the final finding of fact to come from a jury. Under Alabama’s system, there is no way to know whether the jury and the judge even found the same aggravating factor necessary to impose death.

Further, while a verdict of guilt must be unanimous, Alabama’s jury recommendation of death does not have to be. So the decision to kill someone faces a lower hurdle than the decision of whether the person was guilty of the murder, an issue Arthur also sought to have the court consider.

It’s perplexing why the Supreme Court opted not to take the case and either shut down Alabama’s capital punishment system under its Hurst precedent, or explain why what seems to be a clear violation, in fact, is not. The best speculation: The court prefers to wait for a later case on the issue, when it has all nine seats filled.

Meanwhile, people are getting executed. The Court last month refused to hear, without comment, a similar appeal by Ronald Bert Smith, who was put to death by lethal injection on Dec. 8. The Alabama Supreme Court had found that because Smith’s jury found him guilty by a 7-5 vote of an unidentified aggravating factor, the Hurst requirement was met, even though the judge ultimately sentenced Smith to death based on his own fact-finding. As The Times’ editorial board said about the state court decision:

“That’s a preposterous argument — it cherry-picks one of the jurors’ preliminary determinations and ignores their ultimate conclusion that Smith should be sentenced to life without parole. It also ignores the fact that the judge based his decision on his own findings, not on what the jury found, because the jury didn’t reveal any details. There’s no way to know if they even found the same aggravating factors were at play. On its face, the power the judge wields seems to conflict with the Supreme Court’s Hurst decision.”

The death penalty is an unjust and immoral act, no matter how heinous the crime. It serves no deterrent value, and by the time executions occur, so much time has passed — Arthur is 74, and was first sent to death row 34 years ago — that it serves no penological purpose.

But as long as states — and, for that matter, the federal government — are going to issue death sentences, they must do so constitutionally. And it’s up to the Supreme Court to ensure that happens. So far, it’s been failing.

Scott.Martelle@LATimes.com

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