Race, gender, and capital punishment: The ethics case against Judge Tracie Todd
Updated: Nov 23, 2021
Earlier this week, Alabama Judge Tracie Todd began the defense of her personal and professional reputation before the Alabama Court of the Judiciary.
As one of few sitting Black women judges in Alabama's judiciary, Todd's case has race and gender implications that could significantly impact the state's legal community. The court is seeking to remove Todd from office or secure a suspension without pay for the remainder of her term.
Anyone that has heard about Judge Todd's case will know that the issue at hand surrounds her ruling on Alabama's capital punishment statute. On March 3, 2014, Judge Todd made national news after ruling that the “judicial override” portion of the Alabama death penalty sentencing structure was unconstitutional based on the landmark U.S. Supreme Court ruling in Hurst v. Florida. Todd's detractors are challenging her assertion, despite her reliance on established legal precedent, that Alabama's death penalty sentencing scheme is unconstitutional. The truth is, as always, more complicated than the headline.
The death penalty itself was never really at issue in this case. Instead, the complicated legal principle of "judicial override" is the real problem at hand. More specifically, the question revolves around whether a judge can modify a jury's recommended sentence and instead impose the death sentence. Traditionally, Alabama judges have wielded judicial override as a means of appearing "tough on crime" especially during election season.
When the Supreme Court of the United States ruled that Florida's judicial override provision was unconstitutional, Todd reasonably questioned the constitutionality of Alabama's sentencing guidelines.
(Courtesy of Judge Tracie Todd)
In 2017, Alabama Governor Kay Ivey updated state law to prohibit the use of judicial override in instances of capital murder. Both the state of Alabama and the Supreme Court agree that the state's judges should not be able to employ judicial override in Alabama's courts, placing them in alignment with Judge Todd.
So, if the U.S. Supreme Court and the State of Alabama have sided with Judge Todd, why does the matter weigh so heavily in the ongoing case against her? What is the difference between her unapologetic, unequivocal "no" and those of the state and the nation's highest court?
A closer look at the details of Judge Todd's case indicate that race, gender, and hurt feelings might be significant factors fueling the ethics complaints against her.
The state is alleging that Judge Todd made "misleading" and "inflammatory" commentary to the press about the influence of partisan partisan politics in the state's judiciary as well as the disparities surrounding race and sentencing in Alabama's judicial system.
Based upon her ruling on judicial override, the state is asserting that Todd is biased and should have recused herself from any cases involving the death penalty. However, Judge Todd has never questioned the constitutionality of capital punishment, nor has she shown any partiality on the matter from the bench.
Todd is also accused of injecting race into cases by refusing an Assistant District Attorney’s (ADA) recommendation to grant probation for a white male who shot at police during a domestic violence dispute. It is noteworthy that the same ADA recommended a prison sentence for a Black woman, with no prior criminal history, after she verbally threatened police officers during an arrest for presenting a false identification. When the ADA could not offer an explanation for the disparity in sentencing recommendations, Todd questioned whether race and gender may have played a role.
Despite or maybe because of Alabama’s history, there is an undercurrent of discomfort when discussing issues of race, however, ignoring the subject does not eliminate or address the issue. In fact, avoidance makes discussions about race more difficult and impede the progress of healing and reconciliation.
The reason that diversity on the bench matters is precisely so that the voices of minorities carry the same weight and authority as the voices of the majority.
Since the start of the this case, the Judicial Inquiry Commission has presented every legal error, every misstep, every time that Judge Todd even so much as expressed frustration as she presided over some 5000 cases. The Court of the Judiciary will decide whether or not these lapses rise to the level of ethical violations. We firmly believe that Judge Todd will be exonerated because her work as a competent and fair jurist speaks for itself. Because of Judge Todd's long track record of judicial excellence and her exacting personal and professional standards, we know that any question of her behavior from the bench is a matter of her fallibility as a human and not a matter of her personal or professional ethics.