520
Stevens, J., dissenting
bama trial judges face partisan election every six years. Ala. Code § 17-2-7 (1987). The danger that they will bend to political pressures when pronouncing sentence in highly publicized capital cases is the same danger confronted by judges beholden to King George III.
II
In my opinion, total reliance on judges to pronounce sentences of death is constitutionally unacceptable. See Walton v. Arizona, 497 U. S. 639, 708 (1990) (Stevens, J., dissenting). While the addition of an advisory jury may ameliorate concerns about judicial sentencing in some cases, more often that addition makes the scheme much worse, especially when, as in Alabama, the jury's verdict carries no necessary weight.
If Alabama's statute expressly provided for a death sentence upon a verdict by either the jury or the judge, I have no doubt it would violate the Constitution's command that no defendant "be twice put in jeopardy of life or limb." U. S. Const., Amdt. 5; cf. Bullington v. Missouri, 451 U. S. 430, 444-446 (1981). The Alabama scheme has the same practical effect. As the Court recognizes, ante, at 513, Alabama trial judges almost always adopt jury verdicts recommending death; a prosecutor who wins before the jury can be confident that the defendant will receive a death sentence. A prosecutor who loses before the jury gets a second, fresh opportunity to secure a death sentence. She may present the judge with exactly the same evidence and arguments
hearings. See, e. g., Lewis, G. O. P. To Challenge Judicial Nominees Who Oppose Death Penalty, N. Y. Times, Oct. 15, 1993, p. A26; Vick, Barkett's Foes Show Strength Even in Defeat, St. Petersburg Times, Mar. 18, 1994, p. 5B. As one commentator has written: "Most experts on penal systems agree that capital punishment does not deter capital crime. But the public believes that it does, and politicians have been switching longstanding positions to accommodate that view. . . . This . . . is the democratic system." Wills, Read Polls, Heed America, N. Y. Times, Nov. 6, 1994, section 6 (magazine), p. 48.
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