In a death penalty case:
Guided by neither rule nor standard, “free to select or reject as it [sees] fit,”a jury that must choose between life imprisonment and capital punishment can do little more—and must do nothing less—than express the conscience of the community on the ultimate question of life or death.
Witherspoon v. Illinois. The decision to impose the death penalty is a deeply moral and individual determination that each juror must make and come to herself. State v. Ross.
In the 31 states (only 31!) that leave life or death to juries1, 27 have rules stating the the verdict of the jury is absolute and must be enforced. Only 3 permit a judge to override a jury’s verdict of life. No prize for guesses: Alabama, Florida and Delaware2. Out of those 3, only one has consistently been doing so for the last 20 years: Alabama.
In the 1980’s, there were 125 life-to-death overrides: 89 in Florida, 30 in Alabama, and 6 in Indiana. In the 1990’s, there were 74: 26 in Florida, 44 in Alabama, and 4 in Indiana.3 Since 2000, by contrast, there have been only 27 life-to-death overrides, 26 of which were by Alabama judges.
In 1985, Harris asked SCOTUS to rule this “life override” unconstitutional. In Harris v. Alabama, they refused. On Monday, in Woodward v. Alabama, they were asked once again to rule this arbitrary practice unconstitutional. Mario Woodward was tried for a capital offense. The prosecution wanted death. The jury voted for life 8-4. The judge however, had other ideas. He overruled the jury’s determination and sentenced Woodward to death.
SCOTUS once again declined to even hear the case, just as it did last year in a case challenging the practice of excluding people opposed to the death penalty from even serving on juries. In a blistering dissent [PDF], Justice Sotomayor points out just why it is critical that juries be allowed to make this decision and that their decision be respected:
Because “ ‘capital punishment is an expression of society’s moral outrage at particularly offensive conduct,’ ” Harris v. Alabama, 513 U. S. 504, 518 (1995) (Stevens, J., dissenting), jurors, who “express the conscience of the community on the ultimate question of life or death,” Witherspoon v. Illinois, 391 U. S. 510, 519 (1968), seem best-positioned to decide whether the need for retribution in a particular case mandates imposition of the death penalty. See Harris, 513 U. S., at 518 (Stevens, J., dissenting) (“A capital sentence expresses the community’s judgment that no lesser sanction will provide an adequate response to the defendant’s outrageous affront to humanity”).
But what, exactly, makes Alabama so different and why is it so offensive? Alabama is a state where judges are elected. And when judges are elected by “popular” vote, they pander to the lowest common denominator:
The judges are not shy about this fact. A 2000 campaign ad for one said he “has the tough-on-crime record to be chief justice.” Another bragged that he “looked into the eyes of murderers and sentenced them to death.” One judge told The Birmingham News in 2011 that voter reaction does “have some impact, especially in high-profile cases.” Nor is it any more comforting when the judges decide to explain themselves. One judge justified his override of a life sentence for a white defendant because otherwise, he said, “I would have sentenced three black people to death and no white people.”
This is anathema to the function of the jury and the to belief system of America itself. Some Americans love their death penalties, but even they, to a person, will admit that they love the freedom to choose more. They love the freedom to do whatever the hell they want, government be damned.
To legally constitute a jury, to give it the power to decide life and death – to choose – and then to take it away because a judge felt political pressure to kill another human being is obscene and absurd.
For more, read Andrew Cohen at The Atlantic.
Update: Also read Scott’s take, in which he focuses on the Sixth Amendment “jury must determine punishment” jurisprudence and calls out Scalia for his hypocrisy.
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