One evening at Tufts University in 1982, simply minding my own business, I handed my meal card to the cafeteria employee on the way with my friend to get dinner. The cafeteria employee, however, wanted to engage me in conversation, about the referendum to open the way to resuming capital punishment in Massachusetts.

Even though by then I already had been active for a year with Amnesty International’s work for prisoner’s of conscience, I had not yet decided whether I agreed with Amnesty’s advocacy for the total abolition of capital punishment — which abolition I ultimately embraced before starting law school. Even though I simply and honestly responded to this cafeteria employee that I had not given the death penalty referendum much thought — rather than saying I opposed it — she let loose a mini-tirade about what my response did not do to support the survivors of murder victims. It goes without saying that capital punishment is a hot-button issue.

And what about murder victims’ survivors who do not want a death sentence, but the prosecutor proceeds to seek a death sentence nonetheless? And what about the government that has blood on its hands for killing a murder convict to express that killing is wrong? And what about all the death row inmates proven by DNA evidence to have been wrongfully convicted, where an execution makes irreversible a wrongful murder conviction and wrongful death sentence?

In a messy at best pair of cases, the Supreme Court in 1972 effectively invalidated the then-existing capital punishment laws and in 1976 greenlighted the return of executions at least so long as death sentences only resulted after the weighing of the aggravating and mitigating circumstances in the case.

Even in states where judges ordinarily handle sentencing in criminal cases rather than having the jury recommend the sentence, currently all states but Alabama prohibit a death sentence unless the jury recommends such a sentence. Sadly, this effectively means that Alabama judges — all elected every six years — feel the pressures of the electoral process when it comes to capital cases and all other cases. All the more sadly, Alabama has a staggering number of instances (100 since 1976) where judges have overruled jury recommendations of life imprisonment versus death.

Alabama’s most recent execution of a capital defendant was on December 8, 2016, where the trial judge ordered the execution of Ronald Bert Smith, Jr., for murdering Casey Wilson in 1994, even though the jury, 7-5, had instead recommended a life sentence. The United States Supreme Court split 4-4 whether to stay Smith’s execution over the issue of the Constitutionality of the judicial override of the jury’s recommendation of a life sentence. A minimum of five Supreme Court justices’ votes are needed to stay an execution pending further deliberations, so Smith’s execution proceeded forward.

The justices supporting a stay of execution were Justices Ginsburg, Breyer, Sotomayor and Kagan. That means that the following remaining justices rejected a stay: Chief Justice Roberts, Justice Kennedy (ordinarily less conservative on criminal issues than the remainder of the court’s conservatives), Justice Thomas and Justice Alito.

And now incoming president Donald Trump will nominate the replacement for the late Justice Scalia’s too-long-vacant seat. I do not expect Trump’s federal judicial nominees to be friends of criminal defendants’ rights, nor of civil liberties in general. Then again, sometimes presidents hostile to civil liberties find some of their nominees being more friendly than the president to civil liberties.

Fairfax Criminal lawyer Jonathan Katz has successfully defended hundreds of felony and misdemeanor defendants. Learn about the great difference that Jon Katz can make for your defense by calling 703-383-1100 for a free in-person confidential consultation with Jon.