Carmen E. Weite
On August 5, 1995, a Madison County Circuit Court established that Ronald Bert Smith, Jr. intentionally shot and killed a Huntsville convenience store clerk, Casey Wilson, during a robbery. Accordingly, the jury found Smith guilty of capital murder under Ala. Code 13A-5-40(a)(2) and recommended life imprisonment without parole by a seven-to-five vote. On October 6, 1995 the trial court judge overrode the jury’s recommendation and sentenced Smith to death. Both the Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed Smith’s conviction and sentence. On December 8, 2016, Smith asked the United States Supreme Court to stay his death sentence and consider whether an Alabama judge can impose the death penalty even though the jury recommended life imprisonment. Notably, the United States Supreme Court struck down Florida’s similar sentencing structure as unconstitutional in January 2016. More recently, the Delaware Supreme Court invalidated Delaware’s death penalty statute that permitted a similar judicial override system. Nonetheless, the United States Supreme Court denied Smith’s motion to stay his execution.
Presently, Alabama is the only state that allows a judge to impose the death penalty and override a jury’s recommendation to the contrary. Judicial override substantially increases the trial judge’s role in sentencing and allows a judge to override merely because he disagrees with the jury’s decision. Although the Supreme Court did not address the constitutionality of Alabama’s judicial override provision, the recent invalidation of similar statutes raises red flags regarding the constitutionality of Alabama’s provision. Such invalidation strengthens the argument that Alabama’s judicial override, at present, is unconstitutional. Moreover, as elected officials, politics arguably play a role in a judge’s decision to override. Furthermore, if jury verdicts in death penalty cases are consistently overridden, jurors will be less inclined to take their role in death penalty cases seriously.
On the other hand, advocates of judicial override must draw a distinction between Alabama’s law and the other provisions that were recently invalidated. For instance, in contrast to Florida’s statute, Alabama law requires that the jury find an “aggravating circumstance,” before the crime is eligible for the death penalty. In Smith’s case, judicial override is arguably constitutional because the jury, not the judge, established the existence of statutorily enumerated aggravating circumstances. The jury found Smith guilty of a murder committed during a robbery and that the “murder was especially heinous, atrocious, or cruel compared to other capital offenses,” and thus, made Smith’s case eligible for the death penalty. 
In addition to his motion to the United States Supreme Court, Smith also challenged his death sentence to the Eleventh Circuit Court of Appeals based on the constitutionality of Alabama’s three-drug execution method. During this process, the first drug administered is the sedative, midazolam, to “render the inmate unconscious and prevent him from experiencing pain during the execution.” Smith argued that despite the midazolam, he might feel pain because another death row inmate, Christopher Brooks, opened one eye during a previous execution earlier in 2016. However, the Eleventh Circuit rejected Smith’s argument and denied stay of his execution.
During Smith’s thirty-four-minute execution on December 8, 2016, Smith heaved, coughed, and clenched his left fist for about thirteen minutes. Consequently, Smith’s execution now raises questions about the reliability of midazolam as a sedative. Smith’s reactions during his execution exemplify a likelihood that he felt pain despite sedation from midazolam. Smith and Brooks are the only two Alabama inmates executed this year and the effectiveness of midazolam has been questioned in both cases. Although Smith’s argument was unsuccessful on these grounds, Brooks and Smith’s cases combined further death row inmates’ argument that midazolam is consistently ineffective as a sedative, and that as a result, inmates will feel pain during their execution in violation of the Eighth Amendment. Based on the foregoing, a death row inmate with a case procedurally similar to Smith’s, and who challenges his sentence on similar grounds, will likely see a different result in the coming years.
 Smith v. State, 756 So. 2d 892, 949 (Ala. Crim. App. 1997).
 Smith, 756 So. 2d at 949-50; see also Ala. Code 13A-5-40(a)(2) (1975) (stating that “murder [committed] during a robbery” is a capital offense).
 Smith I, 756 So. 2d at 946.
 Id; Ex parte Smith, 756 So. 2d 957 (Ala. 2000). Thereafter, Smith petitioned the United States Supreme Court for certiorari and petitioned the Alabama Court of Criminal Appeals for post-conviction relief, and both courts subsequently denied his applications. See Smith v. Alabama, 531 U.S. 830 (2000); Smith v. State, 976 So. 2d 1080 (Ala. Crim. App. 2005).
 Smith v. Alabama, No. 16-7070, 2016 U.S. LEXIS 7426 (Dec. 8, 2016).
 Hurst v. Florida, 136 S. Ct. 616, 619 (2016). (“The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.”).
 Rauf v. State, 145 A.3d 430, 434 (Del. 2016) (holding Delaware’s death penalty statute unconstitutional because it did not require the jury to find that the aggravating circumstances outweigh the mitigating circumstances).
 Smith, 2016 U.S. LEXIS 7426.
 See The Death Penalty in Alabama: Judge Override, Equal Justice Initiative, 8 (July 2011) http://eji.org/sites/default/files/death-penalty-in-alabama-judge-override.pdf (“In 2008, an election year 30% of death sentences were imposed by override, in contrast with just 7% in 1997, a non-election year.”)
 Compare Ala. Code § 13A-5-47 (2011) with Fla. Stat. Ann. §921.141(2)(3) (West 2011) (invalidated by Hurst v. Florida, 136 S. Ct. 616, 619 (2016)).
 Smith, 756 So. 2d at 945-46; see also Ala. Code §§ 13A-5-49(4), (8) (1975).
 Grayson v. Warden, No. 16-17167, 2016 U.S. App. LEXIS 21758, at *3 (11th Cir. Dec. 7, 2016).
 Grayson, 2016 U.S. App. LEXIS 21758, at *3; see also Brooks v. Comm’r, Ala. Dep’t of Corr., 810 F.3d 812, 823 (11th Cir. 2016).
 Grayson, 2016 U.S. App. LEXIS 21758, at *21.
 Id. (finding that Smith failed to show either “a substantial risk of serious pain or a significant change in Alabama’s method of execution”).
 Kent Faulk, Alabama Death Row inmate Ronald Bert Smith heaved, coughed for 13 minutes during execution, Al.com (Dec. 8, 2016 12:50 PM)