There were two dissents (Alito/Scalia, Sotomayor/Breyer) and one statement (Alito )included in an otherwise ho-hum order list released today. Like an interesting end-note or concurring opinion, this stuff can be interesting to us nerds. One concerned a habeas matter. The solo statement concerned a district judge's personal affirmative action campaign where he wanted evidence of law firm diversity in some cases he heard. Sounds like the judge's heart is in the right place, but not sure if this is a kosher bit of judicial discretion.
The "unusual" nature of this procedure is duly noted by numbers alone. The trick is to determine if it is constitutionally so.* I think the death penalty is wrong as a matter of policy and constitutional practice, but do think granting its legitimacy, requiring juries make the ultimate choice here is appropriate for the reasons these justices suggest. The jury is the ultimate representatives of the people in the criminal justice system, only more so in this most sensitive matter. The case here adds a further problem because the judge was influenced by additional facts that the jury itself did not have available. This appears to violate current doctrine where facts that increase punishment has to be determined by the finder of fact (that is, the jury when it is used).
And, to the extent that the overrides were influenced by the judges being elected also is troubling. An argument can be made that this is legitimate since the people of the community thus has a chance to influence justice as they do when they vote in legislators and such. But, as a general matter, judges are held to be somewhat above the fray. Having judicial questions of life and death, especially when it overrides at divided or even unanimous votes of mercy (as noted in the dissent, to the extent judges override the jury, it is about 10:1 against votes of life, only a few times were death sentences overridden by this procedure), based on electoral concerns leaves a bad taste in one's mouth.
An election -- and the judge here might be concerned about upcoming elections not just following the will of the electorate that voted him/her in -- provides an at best flawed "expression" of the conscience of the community here. The jury has a special role -- they are representatives of the community, the people, who specifically examine the facts of a specific case and defendant. This is different from some general sentiment on how the criminal justice system should work. The "guilt" necessary to die is ultimately only partially an objective matter, ultimately a subjective matter that a jury -- representing various views -- would be best able to make, as far as anyone could. It is seems to me unjust to have one judge override their judgement in this fashion.
On some level, this is just yet another means to remove responsibility, the jury now only advisory on this basic matter, quite unusually here.
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* My understanding of "cruel and unusual," somewhat reflective of practice, is that the 8A term is a term of art. More controversially, I personally think both things might be banned -- something cruel as well as certain things constitutionally unusual. The text does allow this -- I can like/dislike two things and use "and" without both being required.
A punishment need not necessarily be both cruel and unusual to violate the amendment, e.g., if it violates current standards of decency. A headcount might suggest such and such is not "unusual" in some fashion, but it violates the amendment if it doesn't meet that test. A headcount is less important as well when what is at issue is not simply a ban, but the sentencing procedure. This might be partially because due process of law in general, not merely the 8A, is at stake here.
Either way, both are involved here -- it is rarely applied (basically one state) and "cruel" in not following the appropriately humane process. The fact that it matters mostly in overturning life sentences also is notable:
Of the 32 States that currently authorize capital punishment, 31 require jury participation in the sentencing decision; only Montana leaves the jury with no sentencing role in capital cases. In 27 of those 31 States, plus the federal system, the jury’s decision to impose life imprisonment is final and may not be disturbed by the trial judge under any circumstance. That leaves four States in which the jury has a role in sentencing but is not the final decisionmaker. In Nebraska, the jury is responsible for finding aggravating circumstances, while a three-judge panel determines mitigating circumstances and weighs them against the aggravating circumstances to make the ultimate sentencing decision. Three States—Alabama, Delaware, and Florida—permit the trial judge to override the jury’s sentencing decision. [cites removed]The other dissent is one of Justice Sotomayor's few but notable efforts to red flag troubling criminal defense issues. Also on the death penalty front, this year in review from California is the latest of interesting essays on that subject at Verdict from Paula Mitchell. The issue here is the practice where the jury determines if a defendant deserves the death penalty, but it is merely advisory. As shown, this is the practice in only a few states, only one that have actually done it since 1999 (the one time that it occurred in Delaware was overturned on appeal). Justices Breyer and Stevens flagged this issue in the past, noting if you are going to have a death penalty, the jury should be the ones who decide who gets it.
The "unusual" nature of this procedure is duly noted by numbers alone. The trick is to determine if it is constitutionally so.* I think the death penalty is wrong as a matter of policy and constitutional practice, but do think granting its legitimacy, requiring juries make the ultimate choice here is appropriate for the reasons these justices suggest. The jury is the ultimate representatives of the people in the criminal justice system, only more so in this most sensitive matter. The case here adds a further problem because the judge was influenced by additional facts that the jury itself did not have available. This appears to violate current doctrine where facts that increase punishment has to be determined by the finder of fact (that is, the jury when it is used).
And, to the extent that the overrides were influenced by the judges being elected also is troubling. An argument can be made that this is legitimate since the people of the community thus has a chance to influence justice as they do when they vote in legislators and such. But, as a general matter, judges are held to be somewhat above the fray. Having judicial questions of life and death, especially when it overrides at divided or even unanimous votes of mercy (as noted in the dissent, to the extent judges override the jury, it is about 10:1 against votes of life, only a few times were death sentences overridden by this procedure), based on electoral concerns leaves a bad taste in one's mouth.
An election -- and the judge here might be concerned about upcoming elections not just following the will of the electorate that voted him/her in -- provides an at best flawed "expression" of the conscience of the community here. The jury has a special role -- they are representatives of the community, the people, who specifically examine the facts of a specific case and defendant. This is different from some general sentiment on how the criminal justice system should work. The "guilt" necessary to die is ultimately only partially an objective matter, ultimately a subjective matter that a jury -- representing various views -- would be best able to make, as far as anyone could. It is seems to me unjust to have one judge override their judgement in this fashion.
On some level, this is just yet another means to remove responsibility, the jury now only advisory on this basic matter, quite unusually here.
---
* My understanding of "cruel and unusual," somewhat reflective of practice, is that the 8A term is a term of art. More controversially, I personally think both things might be banned -- something cruel as well as certain things constitutionally unusual. The text does allow this -- I can like/dislike two things and use "and" without both being required.
A punishment need not necessarily be both cruel and unusual to violate the amendment, e.g., if it violates current standards of decency. A headcount might suggest such and such is not "unusual" in some fashion, but it violates the amendment if it doesn't meet that test. A headcount is less important as well when what is at issue is not simply a ban, but the sentencing procedure. This might be partially because due process of law in general, not merely the 8A, is at stake here.
Either way, both are involved here -- it is rarely applied (basically one state) and "cruel" in not following the appropriately humane process. The fact that it matters mostly in overturning life sentences also is notable:
In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.Leaving open a judicial veto can go both ways, however.
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