On September 17, Alabama plans to execute Jeffery Lee for a 1998 pawn shop robbery that left Jimmy Ellis and Elaine Thompson dead. Lee's jury did not recommend death. A single judge overrode that recommendation and imposed one anyway. The practice is called judicial override, and Alabama abolished it in 2017.
The state has spent the years since arguing over what that abolition actually meant. Lee's case is where that argument runs out of road.
What Judicial Override Actually Was
Judicial override let an elected Alabama trial judge reject a jury's recommendation of life imprisonment and impose death instead. Florida, which allowed a version of the same practice, at least required judges to give a jury's verdict "great weight." Alabama's judges only had to "consider" it. That standard left the outcome almost entirely up to one person.
Alabama adopted override after the U.S. Supreme Court struck down existing death penalty laws in 1972's Furman v. Georgia. The idea was to prevent arbitrary sentencing. In practice, elected judges facing reelection could overrule a jury's mercy without answering to much beyond their own judgment — and, critics have long argued, to the politics of appearing tough on crime. Only three other states ever allowed the practice. Alabama was the last to end it.
It ended on April 11, 2017 — the first bill Kay Ivey signed as governor, one day after she was sworn in following Robert Bentley's resignation. Senate Bill 16 replaced override with a requirement that at least 10 of 12 jurors agree before a judge could impose death. It was sponsored by Sen. Dick Brewbaker and Rep. Chris England.
Since 1976, Alabama has executed at least 12 people whose juries had rejected a death sentence.
The Reform Stopped at the Courthouse Door
The 2017 law changed how judges could sentence people going forward. It said nothing about the people already sentenced under the practice Alabama had just decided was broken. State prosecutors argued — and still argue — that the repeal wasn't meant to apply backward.
In April 2024, Rep. Chris England, D-Tuscaloosa, tried to close that gap. He was the same legislator who'd co-sponsored the 2017 repeal. His bill, HB 27, would have retroactively applied the override ban to the people the practice produced: 33 death row inmates at the time. The House Judiciary Committee killed it 9-4, exactly along party lines.
Committee chair Rep. Jim Hill said the judges had followed the law as it existed: "It is very difficult for me to second guess" those decisions, he said. Rep. Jerry Starnes urged colleagues to remember the victims, walking through three of the underlying murder cases. England countered that juries had heard the same facts and still chosen life — and pointed to Kenneth Eugene Smith, an override case executed months earlier, as proof the state hadn't waited to find out whether it was wrong. Former Govs. Robert Bentley, a Republican, and Don Siegelman, a Democrat, both publicly backed England's bill. It didn't matter.
The legislature had a clean opportunity to finish what it started in 2017. It chose not to.
The Number That Isn't About Fairness
Most of the case against judicial override is a fairness argument: juries hear the whole trial and represent the community; one judge shouldn't get the final word. That argument is worth making. But a colder number sits underneath it.
According to figures the We the Jury coalition has compiled and publicized, judicial override produced 101 death sentences in Alabama between 1981 and 2015 — nearly a quarter of all death sentences the state handed down in that span. The same We the Jury figures put override cases at half of Alabama's death-row exonerations for innocence in that period (3 of 6). If the coalition's numbers hold, a practice responsible for roughly 25 percent of death sentences produced 50 percent of the cases where the state got it wrong.
That's a reliability problem. It's harder to argue past than a fairness one.
The Case That Won't Wait
Lee's case echoes Kenneth Smith's in more than the override. Smith was put to death by nitrogen gas in January 2024 — the first execution by that method in the country. Lee fought the same protocol and won: a federal judge ruled Alabama's nitrogen gas method unconstitutionally cruel, and courts found a firing squad a feasible alternative. Alabama's response wasn't to revisit whether to execute him. A federal judge later allowed the state to proceed by lethal injection instead, a method Lee's attorneys say the state had previously signaled it was moving away from. Ivey set a new execution date: September 17.
What's Actually Left to Decide
With the legislature's door closed since 2024, the only remaining lever is Gov. Ivey's clemency power. She's already used it twice on override cases, commuting the sentences of Sonny Burton and Robin "Rocky" Myers, without announcing a broader policy. In July, a coalition called We the Jury launched to ask her to extend that same judgment to the rest. Its members include jurors, former judges, and a former Republican state senator. Together they're asking Ivey to act on roughly 25 people, by the coalition's count, down from the 33 HB 27 would have covered in 2024. Some of that gap is Ivey's own two commutations; the rest isn't publicly reconciled.
One of the coalition's members is Dick Brewbaker. He's the same former state senator who co-sponsored Ivey's first bill in 2017. "Alabama has already acknowledged that judicial override is wrong," he's said. "Now the question is whether we are willing to fix it." He asked that question as a bill sponsor first. He's asking it again as an advocate.
Ivey is term-limited and not on any 2026 ballot. Whatever is shaping the pace of her decisions on these cases, it isn't a campaign to win.
Lee's execution date is nine days out. Whatever the governor decides, or doesn't, it happens on a clock the legislature already had the chance to reset — and, in 2024, declined to.