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November 20, 2013

"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.

November 20, 2013 at 01:03 AM | Permalink


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| “The death penalty should have no legitimate mooring at all in modern American society” | -- NY Times Editorial Board

In 32 states indeed it has the legitimate moorings of constitutionality, history, biblical sanction, and democracy.

In the “modern” states which you prefer, sirs, you may perhaps “marry” your brother,
but, no, the death penalty, that is illegitimate.

Posted by: Adamakis | Nov 20, 2013 9:23:21 AM

Sotomayor accusing other judges of being political and their installation on the bench the result of "partisan proceedings." How precious.

Posted by: TarlsQtr1 | Nov 20, 2013 11:31:52 AM

My view is that under the Supreme Court's post-"Apprendi v. New Jersey" jurisprudence, the death penalty can only be imposed upon a defendant by the jury, not by a Judge. Am I missing something here?

Posted by: Jim Gormley | Nov 20, 2013 11:49:02 AM

The jury is presented evidence and determines the facts and if the DP applies. They can recommend a sentence and some states have determined to accept it or override it. As long as the facts make him eligible for the death penalty it can be imposed by a judge.

Posted by: deano | Nov 20, 2013 12:25:07 PM

Deano is correct. In the Supreme Court's death penalty terminology, it is the difference between the eligibility determination and the final, discretionary sentencing decision. See footnote 4 of Ring.

Posted by: Kent Scheidegger | Nov 20, 2013 2:43:01 PM

Justice Sotomayor:

"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."

This is not simply a "discretionary sentencing" upon a jury's findings. The jury did not make the "factual finding" cited. The judge overruled the finding, hearing more evidence before doing so. Ring left open sentencing based on facts determined by the jury. Here the jury did not find the facts warranted capital liability.

Posted by: Joe | Nov 20, 2013 4:32:14 PM

Yes, one should read "Ring v. Arizona", the Supreme court's post-Apprendi opinion on this topic. It still isn't clear that Alabama's procedures satisfy Ring.

Posted by: Jim Gormley | Nov 20, 2013 5:08:03 PM

I am going to have to read the case because I do not quite get the gist of the decision from the article here. But only a jury should determine the death penalty.

Posted by: Liberty1st | Nov 20, 2013 8:05:37 PM

"Sotomayor accusing other judges of being political and their installation on the bench the result of "partisan proceedings." How precious."

The most astute observation I have ever read on this blog--Bravo!!

Posted by: federalist | Nov 20, 2013 11:20:08 PM

Well, federalist, then maybe you can explain TarlsQrt1's "astute observation" to me. Because regardless of whether you think the justices are party hacks -- certainly I think four of them are -- Sotomayor was talking about Alabama judges that can be voted off the bench. Say what you will about the politics surrounding supreme court nominations/confirmations...none of the justices (including Sotomayor) needs to pander to harsh-punishment enthusiasts who otherwise might not vote to retain them.

So to me TarlsQrt1's "how precious" comment looked more like a cheap shot than an astute observation... more of a veiled insinuation than a pointed criticism.

Posted by: John K | Dec 3, 2013 6:06:29 PM

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