UPDATE
In a one-sentence order on Tuesday, Jan. 19, the Alabama Supreme Court denied Christopher Brooks's petition. Brooks's lawyers tell BuzzFeed News they will be seeking review from the U.S. Supreme Court.
ORIGINAL REPORT
WASHINGTON — Just six days before his scheduled execution, the lawyer for Christopher Brooks has asked the Alabama Supreme Court to put Brooks's execution on hold so the court can assess whether its capital sentencing laws remain constitutional following this week’s U.S. Supreme Court decision striking down Florida’s capital sentencing scheme.
Alabama, like Florida, places the final decision of whether to impose death on the judge — not a jury. On Jan. 12, the U.S. Supreme Court held that "Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional."
Since that ruling, Alabama officials have defended their state's law as having been previously upheld as constitutional and as being distinguishable from the part of the Florida law struck down this week. Criminal defense attorneys have said otherwise, and now — in Brooks's case — one of those lawyers is asking the Alabama Supreme Court to step in.
"Mr. Brooks’ death sentence might be unconstitutional under Hurst v. Florida and, if it is unconstitutional, he is entitled to relief," the lawyer for Brooks wrote, referring to this week's decision. "Mr. Brooks' death sentence should not be carried out while critical questions concerning the constitutionality of Alabama's capital sentencing scheme remain unanswered."
Brooks was sentenced to death in 1993 for the 1992 murder of Jo Deann Campbell, a sentence imposed by Judge James Hard. The jury had recommended a death sentence to the judge on an 11-1 vote.
"Mr. Brooks respectfully requests that this Court temporarily stay his execution currently scheduled for January 21, 2016, direct the parties to present briefs on the applicability of Hurst, and undertake a thorough consideration of Hurst's impact on Alabama’s capital sentencing scheme," attorney Leslie S. Smith, from the Federal Defenders' Office in the Middle District of Alabama, wrote in the petition to the Alabama Supreme Court.
After detailing at length the comparisons between the Florida and Alabama death sentencing laws, the Friday filing for Brooks cites to a friend-of-the-court brief filed by Alabama's own lawyers in the Florida case, stating that the arguments made by the state there showed it "recognized that the Supreme Court’s rejection of Florida’s sentencing scheme ... would mean that Alabama's nearly identical scheme would almost certainly fail to meet constitutional standards."
Alabama Attorney General Luther Strange’s office, however, maintains that the state’s death sentencing statute — which only requires the judge to give “consideration” to the jury’s sentencing recommendation — remains constitutional.
More than 20 years ago, the U.S. Supreme Court upheld Alabama’s death sentencing scheme in a case brought by Louise Harris in which she questioned whether the state’s law violated the Eighth Amendment’s ban on cruel and unusual punishments.
“The Constitution permits the trial judge, acting alone, to impose a capital sentence,” Justice Sandra Day O’Connor wrote for the court. “It is thus not offended when a State further requires the sentencing judge to consider a jury's recommendation and trusts the judge to give it the proper weight.”
Since that time, however, an entire area of caselaw has developed at the Supreme Court regarding the Sixth Amendment’s guarantee of a jury trial. A 1999 decision noted that the court has "suggest[ed]" that "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." In the landmark Apprendi v. New Jersey case in 2000, that principle was made law.
Two years later, in Ring v. Arizona, the court expanded that reasoning to the capital sentencing realm. Overturning a prior decision of the Supreme Court holding Arizona’s death sentencing scheme to be constitutional, Justice Ruth Bader Ginsburg wrote for the court, "Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment."
On Tuesday, the Supreme Court responded to any perceived ambiguity in Ring, with Justice Sonia Sotomayor writing for the court: "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough."
Nonetheless, on Wednesday, a spokesperson for Alabama Attorney General Luther Strange told BuzzFeed News that the “ruling regarding the Florida death penalty does not affect Alabama’s law” — relying in part upon the Eighth Amendment-based decision from 1995 in explaining why that was so.
"The U.S. Supreme Court specifically upheld Alabama’s current system as constitutional in the case of Harris v. Alabama in 1995," spokesperson Joy Patterson wrote. She also pointed to other cases to buttress her point — three of which were cases from recent years in which the Supreme Court declined to hear challenges to the Alabama system, which is not a decision on the merits of the issue. The other two were lower court decisions addressing the Alabama law that were handed down before the Supreme Court even accepted the Florida case.
Patterson also attempted to distinguish Alabama's system from the parts of the system held to be unconstitutional in Florida.
"In the Florida case, the holding is that a jury must find the aggravating factor in order to make someone eligible for the death penalty. Alabama's system already requires the jury to do just that," she stated. "The jury must unanimously find an aggravating factor at either the guilt or sentencing phase—such as when the murder was committed during a robbery, a rape, or a kidnapping."
In response, attorney John Palombi — also from the Federal Defenders' Office in the Middle District of Alabama — told BuzzFeed News on Friday night, "That is the same argument that Florida made in the Supreme Court and was rejected. In Alabama, just like in Florida, there is no death sentence until the judge makes the finding of the aggravating circumstance."
As Brooks's lawyer put it in the Friday filing, "As with Timothy Hurst, in the absence of the trial court's fact-findings and imposition of sentence, Christopher Brooks would not have received a death sentence."
