In our criminal justice system, we ask jurors to make incredibly difficult decisions about life and death, guilt and innocence, all without much training, preparation or support. One day you are a mother, father, employee, ordinary citizen; the next, you are deciding whether someone should be executed by order of the State.
This is the American system. Citizens become jurors and are suddenly entrusted with the most important decisions a society is required to make. Jurors are elevated to a constitutional role and given more power than ever before, all in the name of keeping the democratic legitimacy of citizen representation in our criminal justice system.
Just not in Alabama when it comes to the death penalty.
For the ninety-fifth time, a duly constituted local Alabama jury spared the life of a defendant facing the death penalty. In Woodward v. Alabama, the jurors voted 8-4 to sentence Mario Dion Woodward to life in prison without the possibility of parole. A single judge overrode the decision and sentenced Mr. Woodward to death.
In her dissent from a denial of certiorari, Justice Sonya Sotomayor raised significant Sixth and Eighth Amendment concerns about the practice of allowing judges (facing the political pressure of reelection) to impose the death penalty because those judges disagree with the jury’s assessments of the facts. Such reasoning runs directly against the logic of Ring v. Arizona and may violate the constitutional rights of the accused.
However the Supreme Court ultimately decides the constitutional issue, I see a broader problem focusing not on the accused but on the citizen. Simply stated, a judicial override process devalues civic participation and threatens to undermine the legitimacy of the jury system. By disrespecting the jury verdict, the judge is disrespecting the juror’s role in the criminal justice system.
by Meagan S. Sway, Associate, Paul, Weiss, Rifkind, Wharton & Garrison LLP
On Monday, Justice Sotomayor illuminated what many Alabama defendants and their lawyers have long known: the closer it gets to election season, the less the Sixth and Eighth Amendments matter in capital cases. While only Justice Breyer joined Justice Sotomayor’s dissent, the practice of granting elected judges power to override jury sentences in capital cases should trouble all nine justices, as Alabama’s capital sentencing scheme undermines our entire justice system.
While a majority of the justices do not appear to accept that Alabama’s sentencing scheme violates a defendant’s Sixth Amendment right to trial by jury, the defendant is not the only player who loses as a result of granting a judge the power to override a jury’s recommendation—jurors also suffer. The Supreme Court has recognized in its Batson jurisprudence that discrimination against a veniremember deprives the defendant of his Sixth Amendment right to a jury and also denies the individual veniremember his “most significant opportunity to participate in the democratic process.” Powers v. Ohio (1991). Alabama’s judicial override system has the same problem. As shown in Bryan Stevenson’s mini-multiple regression analysis, there is a statistically significant relationship between a judge facing an election year and his exercise of judicial override. Thus, a person who serves on a jury, whose judge is facing an election, will see her vote count less than a person serving on a jury whose judge is not. This has the additional negative effect of causing jurors to lose faith in the system, because of the sense that whatever decision they reach it is subject to apparently arbitrary review (and potential reversal) by a judge. A juror may well ask herself, why bother?
The Court should be concerned with the startling appearance of impropriety that results from Alabama’s capital sentencing scheme. Judges are – and should be – supremely concerned about guarding against any appearance of impropriety, as it undermines society’s trust and confidence in the justice system. The Second Circuit’s recent sua sponte removal of Judge Shira Scheindlin from New York City’s stop-and-frisk litigation comes to mind. There, the court removed Judge Scheindlin because she directed related cases to her docket and granted media interviews while the stop-and-frisk litigation was pending. Judicial overrides in Alabama provide much more damning evidence of judicial impropriety: Stevenson’s analysis demonstrating an overwhelming correlation between judicial elections and overrides; 92% of all judicial overrides result in death sentences; states where judges are not elected but have the power of override do not exercise that power; and Alabama judges themselves have admitted that elections have influenced their decisions to override a jury’s recommendation of a life sentence.
Fifty years ago, a unanimous Supreme Court held in Gideon v. Wainwright that “in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” This holding was described in the opinion to be “an obvious truth,” a recognition that Gideon’s clear and powerful proclamation – protecting the fundamental human right to liberty – is one that resonates with us all.
But the mandate was not self-executing, and far too little planning or coordination was undertaken to translate the legal pronouncement into consistent practice. The fundamental constitutional right of the Sixth Amendment was left to fall victim to the inertia of the “machinery of criminal justice” – a counterweight poignantly exposed in Gideon -- and the political realities of each state and county. The failure to act on a federal level has reversed the tides of history to the very problem Gideon attempted to correct. That is: local political entities cannot be solely relied upon to ensure the constitutional right to counsel is properly structured and funded. As a result, the Attorney General declared on the anniversary of the Gideon decision: “It’s time to reclaim Gideon’s petition – and resolve to confront the obstacles facing indigent defense providers.”
The criminal justice system is an eco-system in which the component parts are inextricably intertwined. If police officers arrest more individuals, prosecutors have more cases to process and public defense organizations have more people for whom to provide legal representation. However, while other system actors have mechanisms to prioritize cases or to exercise discretion over which cases to pursue, the Constitution affords public defenders no such “release valve” for controlling workload. This reality exacerbates funding inequities that exist at the state and local levels.
by J. Amy Dillard, Associate Professor of Law, University of Baltimore School of Law
Early next year, the Court will hear argument in Hall v. Florida, a case that many practitioners have awaited since 2002. That year, the Court issued its opinion in Atkins v. Virginia, wherein it held that “the mentally retarded should be categorically excluded from execution.” The 6-3 decision in Atkins marked the great divide between those on the Court who embrace the concept of evolving standards of decency and those who eschew itfor determining which defendants may be put to death and which should be categorically excluded. The Court declined to define the parameters of mental retardation and left that task to the states. Some state legislatures, like Florida, have adopted a constrained definition of mental retardation, relying heavily on an I.Q. of 70 as a bright line.
A fact often overlooked in Atkins is that the majority and Justice Scalia, in dissent, agreed that some people, due to their lack of cognitive capacity, should be excluded from the penalty of death. The majority reached its conclusion after a careful examination of the trends in state legislatures to exclude mentally-retarded defendants from execution. Justice Scalia reached his conclusion after several paragraphs of constitutional hermeneutics, whereby he ascertained that profoundly mentally-retarded defendants were excluded from execution at the time of the framing of the Constitution and its Eighth Amendment prohibition on cruel and unusual punishment. Where the majority and Justice Scalia were at odds was in defining which people fit into the category of defendants who should be categorically excluded from execution. But both the majority and Justice Scalia use the term “mental retardation” as a kind of marker to describe a group of people who must be excluded from the penalty of death.
In 2002, when the Court decided Atkins, the term “mentally retarded” had already fallen from favor among medical and educational professionals, who favored the term “intellectual disability” to describe a person with limited cognitive capacity and limited adaptive functioning. With the publication of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders in May 2013, the American Psychiatric Association has jettisoned the now-pejorative “mental retardation” and replaced it with “intellectual disability disorder,” a subset of neurocognitive disorders, which include dementia. The APA first embraced the term “mental retardation” in 1961, in an effort replace older, pejorative terms such as “idiocy.”
“[I]n our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Fifty years ago this past March, Justice Hugo Black wrote those words for a unanimous Supreme Court in holding that the Sixth Amendment provided Clarence Earl Gideon with the right to counsel, despite his indigent status, as he stood trial in Florida for allegedly breaking and entering a Panama City pool hall.
Gideon v. Wainwright forever changed American jurisprudence, ensuring that guilt or innocence in a criminal matter would be fairly adjudicated, regardless of a defendant’s economic circumstance. But as states and the federal government have dramatically slashed their budgets over the last several years, the promise enshrined by Gideon has come under increased threat as public defenders have seen theirbudgets bear a significant brunt of these cuts.
Congressman Ted Deutch (D-Fla.) introduced this week a bill to help remedy the effect of these cuts and ensure the promise of Gideon. Entitled the “National Center for the Right to Counsel Act,” the measure would establish a private, non-profit center to provide “financial support to supplement…funding for public defense systems” as well as provide “financial and substantive support for training programs that aim to improve the delivery of legal services to indigent defendants.” The Act would also create geographically-based “regional backup service centers” which would provide public defenders with access to investigators and sentencing mitigation experts as well as information on available financial grants. A nine-person “State Advisory Council” would be formed in each state to monitor the quality of public defender services and ensure compliance with the Act.