"Death Meted Out by Politicians in Robes"

The title of this post is the headline of this New York Times editorial, which riffs off of Justice Sotomayor's dissent from the denial of cert concerning Alabama’s death sentencing scheme (discussed here).  Here are excerpts:

In nearly all of the 32 states that permit capital punishment, a jury makes the final decision on whether a defendant will live or die.  Not so in Alabama, where elected judges may override a jury verdict of life in prison and unilaterally impose a death sentence....

On Monday, the Supreme Court declined to hear a challenge to this law, which appears to violate a 2002 ruling that capital defendants “are entitled to a jury determination of any fact” necessary to sentence them to death.

Justice Sonia Sotomayor wrote a 12-page opinion, joined partly by Justice Stephen Breyer, dissenting from the court’s decision not to hear the current case, Woodward v. Alabama. While the court previously upheld the Alabama law in 1995, she noted, the state is now alone in overriding jury verdicts of life.  Because it undermines “the sanctity of the jury’s role in our system of criminal justice,” Justice Sotomayor wrote, the Alabama law is “constitutionally suspect.”

Justice Sotomayor rightly identified the reason Alabama’s judges impose more death sentences per capita than any other state. The judges, she wrote, “who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”...

In his dissent from the 1995 ruling upholding the Alabama law, former Justice John Paul Stevens wrote that allowing a judge to override a jury verdict in this way severs “the death penalty from its only legitimate mooring.”

The death penalty should have no legitimate mooring at all in modern American society, and it certainly should not be imposed by a judge who is worried about keeping his job.