Moussaoui, procedural justice, and jury sentencing involvement

Much has and will be said about the outcome in the Moussaoui capital trial: How Appealing has lots of coverage, and SCOTUSblog has this post with great comments, and there is lots at TalkLeft and Capital Defense Weekly.  To add my two cents, I view the case as an interesting example of procedural justice and jury involvement in the sentencing process.

Because Zacarias Moussaoui pled guilty to the charges he faced, his entire trial was really just an elaborate sentencing hearing before a jury.  His jury trial/sentencing hearing had two parts: (1) a "guilt" phase in which the jury had to decide "factually" whether Moussaoui was eligible for a death sentence; and (2) a "punishment" phase in which the jury had to decide "morally" whether Moussaoui should be sentenced to die.  Interestingly, the jury decided that Moussaoui was eligible for a death sentence, but then concluded he should not be sentenced to die.

Whatever one thinks of the final outcome, Moussaoui and the federal government received an extraordinary level of procedural justice in the course of the jury trial/sentencing hearing.  Both sides presented a lot of evidence during the guilt phase, and the jury focused first only on whether the offense facts made Moussaoui eligible for higher sentence; then both sides presented different evidence during the punishment phase, and the jury distinctly focused on whether Moussaoui ought to be condemned to die for his offense.

Gurus of the Supreme Court's recent sentencing jurisprudence may realize that Justice Breyer apparently believes that the Eighth Amendment's "cruel and unusual punishment" prohibition means that Moussaoui has a right to a jury at both these phases (and yet he apparently does not think the Sixth Amendment’s jury trial right has any applicability to sentencing determinations).  Meanwhile, Justice Scalia (among others?) apparently believes the Sixth Amendment safeguards Moussaoui's right to a jury only for the guilt/eligibility phase.  Of course, federal statutory law — which provides for jury involvement in both phases of a capital trial — eliminated any need to sort through these constitutional questions.

I make these observations primarily to express a general disappointment that murderers like Moussaoui get all this procedural justice and so much jury involvement at sentencing, but far less heinous non-capital federal offenders get far less procedural justice and jury involvement.  For Freddie Booker and Ducan Fanfan and Jamie Olis and thousands of other federal offenders, a less awful federal crime ultimately means less procedural justice and no rights to jury involvement at sentencing.  What a shame that only the worst criminals get the most procedural justice at sentencing.