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August 30, 2011

"The Missing Jury: The Neglected Role of Juries in Eighth Amendment Punishments Clause Determinations"

The title of this post is the title of this interesting new piece by Professor Meghan Ryan, which in now available via SSRN. Here is the abstract:

A recent study of death penalty cases has revealed that judges, who are ordinarily thought of as the guardians of criminal defendants' constitutional rights, are more likely to impose harsher punishments than jurors.  This may be unsettling in its own right, but it is especially concerning because judges are the individuals charged with determining whether punishments are unconstitutionally cruel and unusual under the Eighth Amendment, and these determinations are supposed to be based on "the evolving standards of decency that mark the progress of a maturing society."  The study suggests that judges are out of step with society's moral norms, raising the question of why judges, rather than juries, are entrusted with resolving constitutional questions of cruel and unusual punishments.

This Article argues that juries are better equipped to make these determinations and that charging juries to employ their own moral values to decide these matters is consistent with the underlying purpose and history of the ratification of the Eighth Amendment. This shift in power would also be in line with the Supreme Court's recent elevation of the jury in criminal cases such as Apprendi v. New Jersey and United States v. Booker.

August 30, 2011 at 10:42 AM | Permalink

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Comments

The first paragraph of the article says the study in question is one on Alabama judge overrides. That does not necessarily generalize to the broad statement in the first sentence of the abstract, and the only authority she cites for the generalization is a statement from a Stevens dissent.

What I heard from Arizona prosecutors after their post-Ring statute (admittedly anecdotal) is that juries were more willing to impose the death penalty than the judges had been.

Posted by: Kent Scheidegger | Aug 30, 2011 12:28:06 PM

Given the ability of one juror to hold out and get a life sentence for the killer, it's hard to say that the differences between judge and jury sentencing really reflects anything close to "community standards."

Posted by: federalist | Aug 30, 2011 12:35:46 PM

"The first paragraph of the article says the study in question is one on Alabama judge overrides. That does not necessarily generalize to the broad statement in the first sentence of the abstract, and the only authority she cites for the generalization is a statement from a Stevens dissent."

The "statement" (more a discussion) from the dissent itself is backed up with citations, including but not limited to Alamaba experience. The article also cites other sources for a more general statement that judges are more likely to treat defendants more strictly than juries. It is unclear w/o looking at the studies that death penalty issues are an exception to this trend. It as quite possible that certain jurisdictions over others are exceptions of the rule here.

Posted by: Joe | Aug 30, 2011 1:08:17 PM

Doug, I'll have to read the article, but the excerpt sounds like another article by someone who doesn't understand what Apprendi is about. "This shift in power would also be in line with the supreme Court's recent elevation of the jury in criminal cases such as Apprendi v New Jersey."

Apprendi/Ring/Blakely are about who convicts people of crimes, not who sentences. As Scalia says in Ring in response to Justice Breyer's dissent based on the eighth amendment, "Unfortunatley, (for justice breyer)today's judgment has nothing to do with jury sentencing."

I don't see how authors can read Thomas' concurring opinion in Apprendi and think that Apprendi has bestowed a constitutional role for juries to play in sentencing. As I've said before on the blog, I believe Apprendi/Blakely prohibits a bench trial for a greater offense following a jury trial for a lesser offense.

bruce

Posted by: bruce cunningham | Aug 30, 2011 2:40:54 PM

Federalist,

There are a number of states that allow non-unanimous jury death verdicts, so your hold-out theory doesn't necessarily apply everywhere. (And there is also the issue that most of the most likely hold-out candidates are eliminated by death qualification or the State's peremptory strikes.)

Posted by: Anon | Aug 30, 2011 4:20:31 PM

When combined with the time-validated concept of the "melting pot", diversity of Americans has always been one of the strengths of this country. Unfortunately, progressives have pushed the "salad bowl" concept, wherein the ethnic and religious ways of the home country are not melded into the predominant culture.

Juries can no longer reflect community standards as those standards are no longer the same for all Americans.

Posted by: mjs | Aug 30, 2011 7:46:13 PM

Using Alabama as an example: we only require a vote of 10 jurors for a recommendation of death. All juries are death qualified, but not similarly life qualiifed. Judges regularly override 12-0 recommendations for life. I cannot remember an occasion where a judge overrode a death recommendation. Alabama appellate courts (also entirely elected, btw) have imposed no standard for overrides, either as a system that a trial judge could use to determine whether an override is appropriate or for review by appellate courts. The trial judge must include the words "I have considered the jury's recommendation of life without the possibility of parole as an additional, and powerful, mitigator, but..." in his sentencing order. If he does so, and the order is otherwise technically correct, his override will be affirmed.

Posted by: Ala JD | Aug 31, 2011 11:12:43 AM

hmm

"Judges regularly override 12-0 recommendations for life"

then why should anyone bother to waste their time on a murder trial.

tell the courts to kiss off and go back to their own lives! since the judge is gonna do what they want anyway!

Posted by: rodsmith | Aug 31, 2011 2:12:13 PM

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