The Supreme Court Loves Juries, Except When It Doesn't

Chip East/Reuters

The United States Supreme Court declined Monday to hear the case of a man who was spared the death penalty by an Alabama jury only to be subsequently sentenced to death anyway by the trial judge in the case—an official who was elected to his post by the citizens of his state. The result in Woodward v. Alabama is that the state may continue to be one of only three in the nation that permits "judicial overrides" of jury decisions in capital cases.

Only two justices—Sonia Sotomayor and Stephen Breyer—dissented from the denial of certiorari, and only Justice Sotomayor was willing to lay bare the extent of the hypocrisy that accompanies the Court's resolution of this case. As she wrote, there were at least two excellent reasons why the Court should have accepted this case for review and then ended Alabama's dubious mix of law and politics in death penalty cases. That there were not five votes for either reason (0r both) reminds us how hostile this court is to reform of even the worst excesses of capital punishment in America.

Giving Elected Judges Too Much Power

The first reason why the Court should have heard Woodward and voided Alabama's sentencing scheme is substantive and doesn't require a great deal of legal training to understand. If (as Alabama has done) you give judges the power to override jury verdicts in capital cases, and if (as Alabama also has done) you then make those judges accountable to public opinion by having judicial campaigns and elections, you are going to end up (as they have in Alabama) with judges who disproportionately feel it is in their self-interest to sentence people to death even when a jury has recommended a sentence of life.

Citing the trenchant work done in this area by Bryan Stevenson and the Equal Justice Initiative, Justice Sotomayor wrote that such a scenario must be unconstitutional. Judges in Florida and Delaware, the other two states with judicial overrides, don't in fact override jury verdicts in capital cases anymore and, when they do, they do so at a rate orders of magnitude less frequent than judges in Alabama. (This alone makes Alabama's death penalty arbitrary and capricious, but that's an argument for another day). From Justice Sotomayor's dissent:

One Alabama judge, who has overridden jury verdicts to impose the death penalty on six occasions, campaigned by running several advertisements voicing his support for capital punishment. One of these ads boasted that he had “‘presided over more than 9,000 cases, includ­ing some of the most heinous murder trials in our history,’” and expressly named some of the defendants whom he had sentenced to death, in at least one case over a jury’s contrary judgment.

With admirable candor, another judge, who has overridden one jury verdict to impose death, admitted that voter reaction does “‘have some impact, especially in high-profile cases.’” Velasco, More Judges Issue Death Despite Jury, Birming­ham News, July 17, 2011, p. 11A. “‘Let’s face it,’” the judge said, “‘we’re human beings. I’m sure it affects some more than others.’” Id., at 12A. Alabama judges, it seems, have “ben[t] to political pressures when pronounc­ing sentence in highly publicized capital cases.” Harris, 513 U. S., at 520 (Stevens, J., dissenting).

By permitting a single trial judge’s view to displace that of a jury representing a cross-section of the community, Alabama’s sentencing scheme has led to curious and potentially arbitrary outcomes. For example, Alabama judges frequently override jury life-without-parole verdicts even in cases where the jury was unanimous in that ver­dict.In many cases, judges have done so without offering a meaningful explanation for the decision to disregard the jury’s verdict. In sentencing a defendant with an IQ of 65, for example, one judge concluded that “‘[t]he sociological literature suggests Gypsies intentionally test low on standard IQ tests.’” 

Another judge, who was facing reelection at the time he sentenced a 19-year-old defend­ant, refused to consider certain mitigating circumstances found by the jury, which had voted to recommend a life­  without-parole sentence. He explained his sensitivity to public perception as follows: “‘If I had not imposed the death sentence I would have sentenced three black people to death and no white people.” (citations omitted by me).

This is no way to run a capital punishment regime, obviously. In fact, it's a patently unconstitutional infringement of the due process and Eighth Amendment rights of capital defendants. And yet seven justices of this Court—including the other two progressive justices, Justices Elena Kagan and Ruth Bader Ginsburg—refused to address the problem in this instance. Instead, judges in Alabama will continue to be able to ignore juries, sentence people to death, and then boast about it to their constituents—a concept that would surely have been anathema to the drafters of the Bill of Rights. 

Giving Earnest Jurors Too Little Power

The other argument Justice Sotomayor made against Alabama's sentencing scheme she made alone. Not a single other justice was willing to say that Alabama's "judicial override" is inconsistent with the Court's modern precedent in Apprendi v. New Jersey or Ring v. Arizona, two cases that stand today for the proposition that judges may not increase a criminal defendant's sentence based upon facts not found by a jury. Justice Sotomayor wrote:

The very principles that animated our decisions in Apprendi and Ring call into doubt the validity of Ala­bama’s capital sentencing scheme. Alabama permits a defendant to present mitigating circumstances that weigh against imposition of the death penalty. See Ala. Code §§13A–5–51, 13A–5–52. Indeed, we have long held that a defendant has a constitutional right to present mitigating evidence in capital cases. See Eddings v. Oklahoma, 455 U. S. 104, 110 (1982). And a defendant is eligible for the death penalty in Alabama only upon a specific factual finding that any aggravating factors outweigh the mitigat­ing factors he has presented. See Ala. Code §§13A–5– 46(e), 13A–5–47(e).

The statutorily required finding that the aggravating factors of a defendant’s crime outweigh the mitigating factors is therefore necessary to impose the death penalty. It is clear, then, that this factual finding exposes the defendant to a greater punishment than he would otherwise receive: death, as opposed to life without parole. Under Apprendi and Ring, a finding that has such an effect must be made by a jury.

In other words, Alabama impermissibly permits its judges to impose sentences based upon evidence that jurors have either rejected (in deliberations) or never seen (at trial). And what is particularly galling about the rest of the Court's silence on this point is the clarity with which most of those other justices have long spoken about the vital place of the jury in modern criminal justice. In Apprendi itself, for example, of the need to rein in state judges in sentencing, Justice Scalia wrote:

The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights.

And in Ring, in which he also concurred, Justice Scalia was even more blunt:

Second, and more important, my observing over the past 12 years the accelerating propensity of both state and federal legislatures to adopt “sentencing factors” determined by judges that increase punishment beyond what is authorized by the jury’s verdict, and my witnessing the belief of a near majority of my colleagues that this novel practice is perfectly OK, see Apprendi, supra, at 523 (O’Connor, J., dissenting), cause me to believe that our people’s traditional belief in the right of trial by jury is in perilous decline.

That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man’s going to his death because a judge found that an aggravating factor existed. We cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it.

I do not see how Justice Scalia squares his eloquence in Ring with his silence in Woodward. And I do not know how to explain or justify the meek acceptance of this dubious result by the other members of the Court. Judicial elections in Alabama create all sorts of perversions of justice—I spoke about some of them just last week with Sue Bell Cobb, the retired Chief Justice of the Supreme Court of Alabama—but nowhere are those perversions more pronounced than when a state judge begging for votes condemns a man to death whom a jury had voted to spare.

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project


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