Far be it for some northerner to question the choices made by the fine people who hum Sweet Home, Alabama. If you people want to prove Neil Young right, knock yourselves out. But Yankee-entitlement allows me to get down on my fellow New Yorker, Nino Scalia, and so I shall.
What the hell is wrong with you, Nino?
The Supreme Court of the United States denied cert in Woodward v. Alabama, where a jury, by 8-4 vote, decided not to kill Mario Woodward for murdering police officer Keith Houts. In most places, that would be the end of it. But not Alabama. Oh no. In Alabama, judges, who are elected and must thus show their constituents how they are worthy of their votes lest they find themselves forced to work for a living, have the power to “override” the jury. Death! So sayeth the Judge, after which he thanks the jury for their efforts and sends them on their way.
In a scathing exploration of this outrage, Andrew Cohen calls bullshit at The Atlantic:
Only two justices—Sonia Sotomayor and Stephen Breyer—dissented from the denial of certiorari, and only Justice Sotomayor was willing to lay bare the extent of the hypocrisy that accompanies the Court’s resolution of this case. As she wrote, there were at least two excellent reasons why the Court should have accepted this case for review and then ended Alabama’s dubious mix of law and politics in death penalty cases. That there were not five votes for either reason (0r both) reminds us how hostile this court is to reform of even the worst excesses of capital punishment in America.
For those of you who whine about those damn liberals on the Court, take comfort in the fact that Sotomayor and Breyer couldn’t muster the needed five votes. Not even Harvard’s sweetheart, Elena Kagan, was willing to sign on to even hear the case, no less overrule the Court’s 1995 approval of the judicial override. From the New York Times:
The Supreme Court upheld Alabama’s capital-sentencing system in 1995. In a dissent, Justice John Paul Stevens said politics had cast a cloud over the state’s judicial system. “Alabama trial judges face partisan election every six years,” he wrote. “The danger that they will bend to political pressures when pronouncing sentence in highly publicized capital cases is the same danger confronted by judges beholden to King George III.”
But liberals are notoriously untrustworthy allies, and so I turn to the associate justice who claims to be guided solely by principle. Nino. Nino Scalia. Nino, Nino, Nino. Apprendi much? Does that Ring a bell?
In Apprendi itself, for example, of the need to rein in state judges in sentencing, Justice Scalia wrote:
The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights.
And in Ring, in which he also concurred, Justice Scalia was even more blunt:
Second, and more important, my observing over the past 12 years the accelerating propensity of both state and federal legislatures to adopt “sentencing factors” determined by judges that increase punishment beyond what is authorized by the jury’s verdict, and my witnessing the belief of a near majority of my colleagues that this novel practice is perfectly OK, see Apprendi, supra, at 523 (O’Connor, J., dissenting), cause me to believe that our people’s traditional belief in the right of trial by jury is in perilous decline.
That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle of a man’s going to his death because a judge found that an aggravating factor existed. We cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it.
Cohen asks how Scalia can square “his eloquence in Ring with his silence in Woodward.” That’s because he’s more polite than I am. I just call bullshit.
Either we buy into this whole jury thing or we don’t, but the nation can’t “venerate” juries except when it crosses the border into Alabama. And if an Alabama jury’s determination not to execute a human being isn’t worth the cost of the baloney sandwiches they’re fed for lunch, then save the dime and just find the judge closest to election and let him prove his worth.
But Nino, either you believe in something or you don’t. If it’s just about selling a book, then cut the crap. There is no way to rationalize your sassy rhetoric with your failure to hear this case. Either juries matter or they don’t, and as one New Yorker to another, you don’t get a free pass for making a joke of principle.
Edit: Gideon offers his view of this debacle.
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Sadly, I think it is becoming clear that what Nino believes in has less to do with the Constitution than with his personal view of morality and justice. One might almost be tempted to say that his secret Constitutional decoder ring and private hotline to the Founders minds do not, in fact, exist.
Wait. He has a secret constitutional decoder ring too?
At first blush, I was thinking although a judicial override is a repulsive policy, perhaps this isn’t hypocrisy on the part of Scalia. The reason being that, unlike the Apprendi line of cases, including Ring, this case was not about judicial fact-finding elevating or transforming one offense into another. Pure sentencing has always been traditionally within the province of the court, not the jury. This is why the court had no issue with judicial fact finding in the consecutive sentencing context. And if the judge here simply gets the “last say” as to sentencing, then it would not run afoul of Ring. But in reading the dissent, the fact that the judge took additional evidence to re-weigh the factors in order to invoke the override makes it a bit messier than that. Although I don’t think we can cry hypocrisy as this case is not directly on all fours with Ring, it is too close not to criticize the lack of clarity the court could have given us with a damn decision.
That’s an interesting perspective. I’m not sure I agree, both from the perspective that the jury is making a finding as to aggravating and mitigating factors, as well as the rank unconstitutionality of the death penalty when imposed based upon extra-judicial factors, such as winning re-election.
SJ,
Agreed as to your second point. There is no way a decision to convert a LWOP sentence into death because “hey, I had only sentenced black guys to death so far” can be constitutional. I’m embellishing the judges position there a bit, but not much, sadly.
Anyway, your first point is also valid in as far as the jury made findings. Period. I admit the distinction I was making was a fine one, but I’m not sure the court will find that a judge disagreeing with a “recommendation” as to sentencing will offend the 6th, as death was always on the table based upon facts found by that jury. Nonetheless, we need clarification. And not just in the capital context. Many of us deal with felony sentencing where the court weighs aggravating and mitigating factors. It would gave been nice to know whether that sort of scheme offends the 6th. I think you can presume where I stand on that issue.
Death is different. Or is it? It would appear from this cert denial that it’s not, and that respect for the jury’s decision is critical in so many aspects except here.
Juries sentence in non-capital cases in Arkansas, Kentucky, Missouri, Oklahoma, Texas, and Virginia.
Hi Kathryn. Always nice to hear from you.
IANAL so by definition I do not know what I am talking about. However, I think you misunderstand the Apprendi line of cases. For the conservatives on the court the key issue is, as Justice Thomas puts it, “What is a crime?” This is to say that the core role of the jury is to uncover the facts. That is, to be blunt, the primary power of the jury: to weigh the evidence and render a judgement of the facts. So in this view a crime isn’t actually a crime until the jury has said it is a crime by finding the facts necessary for the corpus delecti. Note that in this view the role of the jury is essentially a box ticking exercise–once the jury renders a judgement onto the facts they simply apply the law as a template and if the holes line up the defendant is guilty and if they do not line up the defendant is not guilty. Simple.
From this viewpoint then the question of death is not a judgement about the facts of the crime, it is a judgement about penalty for the crime. In the eyes of the conservatives on the court that judgement is due no veneration at all. The penalty imposed by the judge is constrained by only two considerations: the law and the facts found by the jury. In this case the jury found the facts to support death and the law allows death so that ends the inquiry. The reality that the jury itself would not construe the facts to support death is neither here nor there.
Your first sentence is usually a warning that the one thing you shouldn’t be doing is writing the rest of your comment. However, you’re right about a few things and close enough about the rest to make it worthwhile.
Juries find facts. In some jurisdictions, they also determine sentence. In Alabama, they do both in a death penalty case, with the judge empowered to override the jury’s decision. Among the things juries find are the mitigating and aggravating factors that result in the decision to impose capital punishment. So this is where your analysis goes astay:
Well, no. The jury found that the defendant was guilty of murder, but that is not the end of the inquiry, just the start of the next inquiry. If it was the end of the inquiry, all people convicted of murder would be automatically sentenced to death. That is neither the law nor a constitutional approach to execution. To raise the penalty to death, it requires an additional finding that death is warranted after weighing the aggravating and mitigating factors. This is where Apprendi matters, that the finding needed to elevate the sentence to death must be based on findings of fact, which factors the jury believes true and accurate. and how they weigh against each other. Only a jury, per Apprendi, can make these factual determinations.
When the jury does so, and are subsequently ignored by a judge in his override, then the judge has chosen to ignore the facts that constitute the basis for sentence as found by the jury and do whatever he pleases. So the jury never found the facts to support death, and yet the judge, refusing to “venerate” the juries findings, imposed death anyway.
Any thing less than a 12-0 verdict is a “hung” jury! It renders no verdict at all, neither “guilty” nor “innocent”. The case may, therefore, be retried at any time should the prosecutor desire to do so!
To be judged “innocent” requires a 12-0 vote; likewise, to be judged “guilty” requires a 12-0 vote.
NO dissension is allowed; it is “all or nothing!”
No. Not that your comment has anything to do with the post, but just because it’s so mind-numbingly stupid, I will explain so that when you go back to the bowling alley to render legal advice, you have a chance of being close to accurate.
There is no such thing as a verdict of “innocent.” As for the significance of a hung jury, while precedent allows for retrial, you’re wrong about that as well. But thanks for playing.
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