Our Constitution Has Failed: It’s Time for a New One

One of the first steps in dealing with a problem is understanding it. It looks like we have (at least) several major problems in the United States today:

  • a president who refuses to accept the results of an election he lost and, in the words of Rep. Liz Cheney (R-WY) “incited [a] mob” to carry out “a violent…assault [on] the U.S. Capitol” on Wednesday
  • more than 350,000 Americans dead in less than a year from a pandemic that has also caused widespread economic distress
  • a sweeping cyberattack against government and private entities in the US
  • deadly racial injustice that prompts mass protest yet continues unabated
  • a climate crisis that promises only to get worse.

These crises have different causes, but our inability to mitigate them--or, in many ways, even to try--is fundamentally the result of one central problem--a failed constitutional system that has left the United States unable to respond to national challenges and unable even to defend democracy itself against an existential internal threat.

The Constitution’s failure to do what we reasonably expect it to do helps explain our inability to address the crises listed above. The framers created the Constitution when the government described by the Articles of Confederation proved too weak to make the country work (one of the central concerns on their mind was the national government’s inability to suppress an insurrection in the winter of 1786, a concern all too relevant this week). In its original form, the Constitution did not fully provide for what is now called a liberal democracy--a system with free and fair elections, individual rights, limits on the power of the majority as well as government officials, and the rule of law.  Over the past 233 years, a modern liberal democracy ultimately, though painfully, emerged--based both on the verbal promises now contained in an amended Constitution as well as informal norms.  The constitutional system also evolved to provide the government with authority needed to address new challenges. As Supreme Court Justice Robert H. Jackson wrote in 1952, the Constitution “contemplates that practice will integrate the dispersed powers [of the federal government] into a workable government”--a government with the power necessary to fulfill its assigned responsibilities.

Our system depends on a delicate balance--a government strong enough to capably respond to pressing national problems, yet not so unchecked that officeholders are able to shrug off limits on power and rule as authoritarians.  A government too weak to carry out its responsibilities (like the government under the failed Articles of Confederation) is a failed government. A government with a president who rejects the notion of limits on his or her power is also a failed government.

At the moment, we are experiencing both kinds of failures. One example of the first kind of failure--a government incapable of performing its duties--is the response to the pandemic. Vaccines are, thankfully (though somewhat haphazardly) being rolled out--but in the meantime, we collectively accept record-setting death tolls unmatched in other countries. No one could magically make the virus disappear, but President Trump has decided he will not even try. When it comes to the pandemic, we are effectively operating with the functional equivalent of no president. As Maryland Gov. Larry Hogan put it, “in the worst part of the battle, the general was missing in action”. In a functioning system, members of Congress would use available constitutional tools to force a change in course. In our failed system, that won’t happen--no matter how high the death toll rises.

The failure even to try when it comes to central aspects of the pandemic is a failure of weakness--what Kim Lane Scheppele and David Pozen call “executive underreach”. Trump’s reaction to the election is one example from the flip side of the coin--dramatic overreach aimed at illegitimately overturning the results. Last month, there were reports that Trump asked advisers about the possibility of “impos[ing] and deploy[ing] the military to “rerun” the election.” In a clear indication that there were real concerns about what could happen, all 10 living former defense secretaries signed on to an extraordinary op-ed calling on current Department of Defense officials to “refrain from any political actions that undermine the results of the election…” As political scientist Brendan Nyhan pointed out, “the fact that a coup is being considered and the President is not being immediately impeached and removed from office is a sign of profound democratic erosion.”

It is clear that Trump will desperately try all he can to hang on to power. Last week, we learned that the president pressured Georgia’s secretary of state to reverse his electoral defeat in that state. Trump’s brazen efforts to overturn the results of a free and fair election were caught in an audio recording. A few days later, many Americans watched in horror on live television as Trump supporters breached security, occupied the Capitol, and forced members of Congress to abandon the formal process of recognizing Joe Biden’s election victory, seeking cover from an angry mob incited by the president. Former Attorney General William Barr put into words what was obvious: Trump had “orchestrat[ed] a mob to pressure Congress” in a “betrayal of his office”. Sen. Mitt Romney (R-UT) put it even more bluntly, declaring that “what happened [at the Capitol] was an insurrection, incited by the President of the United States”.

In a functioning system, Republicans would have joined with Democrats to immediately remove Trump from office.  In our failed system, although some legislators circulated articles of impeachment the day after the assault on the Capitol, there is little indication that Congress will take the prompt action necessary to protect the nation; in fact, the House and Senate are out of session for more than ten days. Speaker of the House Nancy Pelosi has called on Vice President Mike Pence and the cabinet to invoke the 25th Amendment; if not, she says the House will begin impeachment proceedings. It is unclear whether Republicans would join Democrats, and whether senators would even be available to act, given that many may have already left the capital city. If there is not prompt action the rest of us will be left to keep our fingers crossed and hope there is no repeat of the January 6 uprising in the nearly two weeks days left until Biden’s inauguration.

Recognizing that our Constitution has failed is not to say that all hope is lost. Some important safeguards--the courts, state and local officials, the military--have held up. But this offers only a temporary reprieve from the dangers of both disabling gridlock that leaves government unable to take on national problems and authoritarian overreach that seeks to put an end to constitutional democracy itself.

No system can guarantee its survival, but if the Constitution has failed, we can think creatively about how to increase the odds in favor of liberal democracy. We need a constitution that is both more liberal, with more effective limits on power as well as improved safeguards against corrupt (or even insurrectionist) government officials and more democratic, with a majority of votes required to win presidential elections and gain control of both chambers of Congress. When the Articles of Confederation failed, the framers started over with a new constitution. Something similar is needed today, although at the moment, the prospect of drafting a new constitution is wildly implausible.  It’s past time, however, to consider the cost of inaction. If we do nothing, these pathologies will persist.  We need creative thinking to find a solution to the problem of our Constitution’s failure.

Chris Edelson is an assistant professor of government in American University’s School of Public Affairs. He has written two books on presidential power. Follow him @ChrisEdelson on Twitter.

As a former federal prosecutor and judge, I believe Lisa Montgomery deserves clemency

One of the heaviest burdens I had as a prosecutor was my responsibility as a minister of justice. I was not simply an advocate; I, like all my colleagues, had ethical and professional obligations to ensure that defendants were accorded procedural justice, that guilt was decided upon the basis of sufficient evidence, and that special precautions were taken to prevent and remedy injustices.

I and my colleagues took this responsibility seriously, especially when children were the victims of crimes. We witnessed the shattering physical and psychological effects of the trauma that children suffer when adults abuse them. It’s something you never forget.

Lisa Montgomery was one of those child victims. Lisa was raped, repeatedly and violently, from the time she was eleven years old. As a young teenager, she was trafficked by her own mother, who allowed groups of adult men to gang rape her. Lisa’s childhood consisted of constant physical and psychological abuse.

Lisa told people about these crimes, including a cousin who was a police officer, but no one intervened. Neither her mother nor any of her rapists was ever prosecuted. The criminal justice system failed Lisa Montgomery during her childhood.

Lisa’s life didn’t improve. Her mother forced her into an abusive marriage with her stepbrother at age 18. By then, Lisa had developed a dissociative disorder as her mind broke from reality to protect her against the violence inflicted on her body. This trauma-induced mental illness compounded the organic brain damage Lisa suffered due to her mother’s heavy alcohol use during pregnancy and a genetic predisposition to mental illness from both sides of her family. Finally, in the grip of a psychotic break, Lisa committed a tragic and terrible crime when she killed a young woman and took that woman’s unborn child to care as her own.

At her trial, the criminal justice system failed Lisa again. There was no recognition of Lisa as the profoundly mentally ill victim of lifelong trauma. Federal prosecutors dismissed her experiences as an “abuse excuse.” Although Lisa expressed deep remorse and offered to plead guilty in exchange for a life without parole sentence, prosecutors insisted on seeking and securing a death sentence against her.

Lisa’s history of trauma is not an excuse for her crime, but it provides an important explanation that is relevant to her punishment.  I believe a jury that meaningfully understood her history would not have given her a death sentence.  Lisa is the only woman in America facing execution for the type of crime she committed, though the sad fact is that several other women have committed similar offenses. That is because such crimes invariably result from serious mental illness; in all but Lisa’s case, other prosecutors recognized that such circumstances do not warrant capital punishment.

Many prosecutors are so intent on winning that they forget their true job is to achieve justice. In Lisa’s case, accepting her offer to plead guilty and be sentenced to life imprisonment would have been the kind of justice that is appropriate in this case.

On the other hand, executing Lisa Montgomery would just be one more failure of the criminal justice system. She is scheduled for execution on Tuesday, January 12. President Trump can and should commute Lisa’s death sentence to life imprisonment without possibility of release.

Stephen G. Larson is a former federal prosecutor and former U.S. District Judge who presently practices civil litigation, criminal defense, and appellate advocacy in Los Angeles and Washington D.C. 

The Vacancies Act: A Precedented Tool for Managing Unprecedented Obstruction

Over the past several weeks, President-elect Joe Biden has begun to name his choices for his Cabinet. Alongside the usual debate over the selections’ merits looms another question: will any of them actually be confirmed? In the past, this was hardly much of a consideration. Barring legal flags like a failure to pay taxes, a presidents’ first batches of cabinet nominees were generally all but assured confirmation. It would seem that that reality is no more.

Republican lawmakers have already expressed an unusual willingness to slow-walk or block the confirmation process for Biden’s Cabinet nominees. If they’re ready to obstruct even high-profile figures, common sense and history suggests that lower level appointees will get even harsher treatment. In light of this reality, Joe Biden will need to be prepared to work around Senate obstruction in order to deliver on his mandate and address our country’s multiple crises. The Federal Vacancies Reform Act, which governs acting appointments to Senate-confirmed positions, will be key to this project.

Executive branch vacancies are nothing new. While seamless handoffs from one Senate-confirmed official to the next would be ideal, the reality is that sometimes officials leave their seats unexpectedly. In those cases, a temporary solution to ensure continuity of operations is required. There have long been laws on the books governing who could fill vacant, Senate-confirmed roles and for how long. The statute has undergone several overhauls but the basic purpose remains the same.

The most recent iteration, the Federal Vacancies Reform Act (FVRA) of 1998, lays out three acceptable avenues to fill a vacant position that is subject to advice and consent. When a position is vacated, the “first assistant” to the office automatically assumes the role. The FVRA  does not define “first assistant,” but some agency statutes and regulations do. In the absence of such designations, the question of who is a position’s first assistant may be the subject of debate. Alternatively, the President can also designate any other person “who has been confirmed to a different advice-and-consent position” or any “senior ‘officer or employee’ of the same executive agency, if that employee served in that agency for at least 90 days during the year preceding the vacancy and is paid at a rate equivalent to at least a GS-15 on the federal pay scale.” In other words, the President has options in the face of vacancies and confirmation delays.

The exact length of time an acting official can serve varies according to several factors that are both within and outside of the President’s control. The Vacancies Act normally provides for an initial period of 210 days in which an acting official can fill the role without the president having made a nomination for a permanent replacement. Vacancies that exist on inauguration day or occur within 60 days of it may be filled by an acting official for an additional 90 days beyond the usual 210 day period, starting from either inauguration day or the date of the vacancy, depending on which is later. On the day the President nominates a permanent replacement, a new timeline begins. The acting official may serve until such time as the nominee is confirmed or for 210 days from the date the nomination is withdrawn, returned, or rejected. If the President makes a second nomination, an acting official may again continue to serve until a permanent replacement is installed or 210 days from the date the nomination fails.

Thus, through careful planning, the President can ensure that an acting official is in office for over 720 days, or two years. Depending on how long the Senate holds the nomination, an acting official could be in the role for even longer.

Officials who are appointed in line with the Vacancies Act’s parameters are empowered to perform all of a position’s functions. This is not to say that a Senate-confirmed official is not ultimately preferable. Acting appointees face several practical barriers such as limited time to build relationships and implement major policy initiatives (although reliance on senior civil servants to serve in an acting capacity avoids some of these pitfalls). Still, it is clearly preferable to have these roles filled than to have governing functions grind to a halt.

It is, therefore, unsurprising that presidents from both parties have relied on the Vacancies Act to govern. And while many have questioned the merits of the current system in terms of good governance, its legal legitimacy is relatively uncontroversial.

As with many things, the Trump administration has put this to the test with slipshod legal work that invites challenge. But the trouble it has faced with the statute should be viewed as an exception, not the rule. So long as the Biden administration shows appropriate attention to detail, the Vacancies Act will serve as a powerful means to act in the face of Senate intransigence.

With control of the Senate still up in the air, we do not yet know how much power Senate Republicans will have to slow and stop nominations. But those lawmakers are leaving little doubt that, if empowered, their obstruction will be severe. Some have committed to confirming nominees who are in the “mainstream,” a rather imprecise category that may turn out to be more exclusive than some might imagine. Others have laid out an even more unattainable standard, suggesting that Biden’s nominees should not be too “partisan.” Still others are not being so coy; John Cornyn indicated that he would not support Biden’s nominee for the Office of Management and Budget, Neera Tanden, because of tweets that have been critical of Republican lawmakers.

Thanks to the Vacancies Act, this unprecedented, bad faith opposition need not mean that Biden does not have an OMB Director or, indeed, a Cabinet. To have any hope of fulfilling his mandate and thus earning voters’ trust in future elections (for his own bid or others’), Biden should not hesitate to use this well-trod legal pathway expansively.

Over 230 years’ worth of statutes -- from the Sherman Antitrust Act of 1890 and the 1964 Civil Rights Act to 2010’s Dodd Frank and many more -- will give Biden and his eventual appointees many tools to respond to the present crises. With these tools Biden’s team can even begin the long project of more fundamentally restructuring institutions to serve the public interest. And by acting now, Biden can give voters a reason to go to the polls in 2022 to expand his congressional mandate and, thus, the breadth of possible action.

The volume, scope, and vision of the Biden administration’s actions will depend on the people Biden picks to carry them out. Most immediately, the country cannot tolerate delays getting people in place at -- to name just a few -- the Department of Defense, Health and Human Services, and Labor to invoke the Defense Production Act, oversee the finalization and distribution of the vaccine, and finally put in place and enforce workplace protections for frontline workers. Biden ran on a promise to lift the country out of this public health crisis. With Senate delays for Cabinet appointees all but certain, he’ll need the Vacancies Act (in conjunction with other legal tools) to make it happen.

I served on Brandon Bernard’s jury, and I believe his death sentence is wrong

Brandon Bernard’s death sentence haunts me. Now that Mr. Bernard has been scheduled for execution on December 10, I feel like my nightmare is turning into reality. My only hope is that President Trump will commute Mr. Bernard’s sentence to life without possibility of release,  the sentence we, the jury, should have returned at his trial.

That’s right, I served on the jury that voted to send Mr. Bernard to his death, and I was wrong.

Participating in the trial of Brandon Bernard and his co-defendant, Christopher Vialva, was one of the most difficult experiences of my life. The victims’ deaths were a terrible tragedy, and I felt deep pain for their families, and still do.  I do not wish any further suffering upon them.

The first part of the trial was not nearly as hard.  The evidence made it clear that Mr. Bernard played some role in the crimes, even if a lesser role than others who were involved, and my fellow jurors and I were convinced of his guilt. I stand by that decision today. But I struggled then, and I struggle now, with our sentencing decision.

Both because of the evidence and because of my religious faith, I was uncomfortable with a death sentence for Mr. Bernard. I should have stood by my own views, but I didn’t do that. I believe at least one other juror shared my concerns, yet he, too, let himself be swayed by the majority.

At the time of the trial, I felt that Mr. Bernard was a follower, pressured by his friends into participating in the situation that led to the murders. I did not think he would have participated if he knew the victims would be killed, and I did not think he would have taken any action to personally kill anyone. I believed that he thought the victims were dead, having seen them  shot by Christopher Vialva, before following Vialva’s directive to set their car on fire.

Mr. Bernard’s mother testified at trial to his Christian values and the strong faith tradition in which he was raised. That made an impact on me, because as a Christian I believe that everyone deserves a second chance, including Mr. Bernard. I also watched Mr. Bernard closely during the trial.  He seemed dazed, overwhelmed, and terrified of what was happening. He did not seem like a hardened criminal or someone who failed to grasp the consequences of his actions.

I often wonder if Mr. Bernard’s case might have turned out differently if his lawyers had worked harder to defend him. They seemed to be “phoning it in,” making only a half-hearted attempt at a defense even though their client’s life was on the line. I learned later that there were important witnesses they didn’t present, including Pastor Jack Hetzel, who counseled Brandon after he was arrested and was held at the Waco County Jail. Pastor Hetzel saw Brandon for about a year leading up to the trial. During these meetings, Brandon continued to express remorse to Pastor Hetzel. I’m disheartened that Brandon’s trial attorneys chose not to have people who knew Brandon testify about him and the remorse and shame he expressed to them. That kind of evidence would have helped me hold my ground that a life sentence was the appropriate punishment for Mr. Bernard, and not  death.

I know that under federal law, if I had stuck to my refusal to vote for a death sentence, then Mr. Bernard would have been sentenced to life imprisonment without possibility of parole. Over the years, I have often thought about this fact, and wondered what I could do to change the death sentence I let myself be convinced to support into the life sentence I have always believed was the right and just punishment for Mr. Bernard. I thought about writing a letter to express this belief, but I wasn’t sure where to send it, so I did nothing.

Now the federal government plans to kill Brandon Bernard on December 10, and I can no longer stay silent. Mr. Bernard is not the worst of the worst, and if he is executed, I will carry his death on my conscience for the rest of my own life. And so, I share this with you all now and ask  President Trump   to commute Mr. Bernard’s death sentence to a sentence of life without possibility of parole. I pray that he does so.

Gary McClung served on the jury in Brandon Bernard’s capital trial.

Congress Legislated Under the Thirteenth Amendment Long Ago to Address Slavery’s Harms. It Should Do So Again.

December 6 marks the 155th ratification anniversary of the U.S. Constitution’s Thirteenth Amendment outlawing slavery and “involuntary servitude.” One of three Reconstruction Amendments (along with the Fourteenth and Fifteenth), the Thirteenth Amendment is the first time the Constitution mentions the word “slavery.” Remarkably, it’s also the first time the Constitution expands the federal government’s power, explicitly authorizing Congress’s reliance on “appropriate legislation” to ensure the dissolution of slavery and its remnants.

Congress set out to do that with various  legislation during the Reconstruction era. To the extent that any social injuries of contemporary Black Americans still qualify as such remnants, Congress can—and should—do so again today.

Careful consideration of what the Thirteenth Amendment was ratified to accomplish informs why. In the wake of the Amendment’s 1865 ratification, Black Americans, free and formerly enslaved, reunited with loved ones, traveled, pursued education, and more, all with particular vigor. These acts underscore what Black Americans believed the Amendment to grant: a lavish form of freedom to live the lives they had long been denied. Because slavery was as much about the social death of Black Americans as it was about violent, physical servitude, the new freedom the Amendment conferred would enable Black Americans to do things like support their families. Build homes. Go to school. Take pleasure in life unencumbered. And for Black Americans, the Amendment, as enforced by Congress, would safeguard the freedom to pursue all of those without barrier.

That understanding comports with the goals Congress also had for the Thirteenth Amendment when it drafted it. Almost immediately after its ratification, for example, Congress seized its new power and enacted the Civil Rights Acts of 1866, guaranteeing Black Americans’ ability to enter contracts, own property, and access courts—the kind of rights infrastructure necessary for freedom to mean anything. The Civil Rights Act of 1875 under the Amendment soon followed, outlawing private race discrimination in public accommodations. For legislators like Senator Charles Sumner of Massachusetts, a prominent figure in the Amendment’s ratification process, such legislation’s justification was clear: preserving some rights for Black Americans was “not enough,” as the “denial of any right is wrong.” This early legislation, coupled with the ways Black Americans attempted to proceed with their lives, demonstrate that the Amendment was envisioned to bar not just forced physical labor; it was to assure what Sumner himself described as a “practical freedom.”

This freedom still eludes us as Black Americans today, notwithstanding that Congress retains the same remedial power it’s had since the Amendment’s ratification to correct that. Congress can build on its past Thirteenth Amendment legislation to take on the obstacles Black Americans still face in, among other things, housing, education, and, as especially reminded this year, protection from violence at the hands of state officials. These social phenomena are all heritable vestiges of those impediments erected to oppress Black Americans as part of slavery’s intricately designed and deep-rooted system. They therefore comfortably fall under Congress’s purview with respect to its enforcement of the Thirteenth Amendment.

The United States Supreme Court would seem to agree, at least under its current precedent. In its last major Thirteenth Amendment decision in 1967, the Court made clear that Congress can still legislate against social hurdles rooted in slavery. That decision, Jones v. Alfred H. Mayer Company, affirmed that the Amendment “clothed” Congress with legislative power to eradicate what the Court described as slavery’s “badges and incidents”—in the Jones case, that included the housing discrimination Black Americans faced in St. Louis, Missouri. The Court has since never questioned that rationale in Jones. Importantly, nor has it diluted that precedent as it has with the Fourteenth and Fifteenth Amendments’ respective powers to address slavery’s lingering wounds for Black Americans.

Yet, Congress’s reparative power under the Thirteenth Amendment is essentially untapped. This is in part because Congress’s accountability for legislating under the Amendment requires us as voters to appreciate the Amendment’s purpose. Still not enough of us do, despite increasing attention to the Reconstruction Amendments’ original aims and enduring capacities as constitutional levers for racial justice.

Besides unfamiliarity with the Amendment’s original purpose, others are increasingly suspicious of the Amendment’s “exception clause” that forbids slavery “except as a punishment for crime.” That clause has been dubbed a “loophole” that implicitly aids Black American overimprisonment. Such suspicion was the entire premise of a major documentary; has received attention in an award-winning Broadway play; and is a message still regularly propagated on social media. But the suspicion, while reasonable, belies the fact that the Supreme Court has never endorsed that clause as an escape hatch justifying Black American incarceration. The skepticism is also difficult to reconcile with both the express goals of the Amendment’s architects and the expectation that Black Americans themselves had for the expansive kind of freedom they understood the Amendment to bestow.

It is instead with rich hopefulness that we should understand the Thirteenth Amendment. In the midst of our most dynamic social movements concerning Black American life since the 1960s, now more than ever is there urgency for a direct national reckoning with slavery’s insistent legacy. Legislation under Congress’s Thirteenth Amendment powers that explicitly combats discrimination rooted in slavery is an appropriate and major step in that direction. The Amendment, now at 155 years old, was to facilitate the kind of liberation Black Americans imagined—and continue to imagine—for ourselves. All of us can still make good on that assurance by holding Congress accountable to that constitutional end.

Brence Pernell is an attorney and Adjunct Professor of Law at the New York University School of Law and New York Law School. 

Respect Jurors

The U.S. Supreme Court Should Not Allow Calvin McMillan to be Executed When the Judge Imposed Death After the Jury Voted for Life

 In 2006, I was called to serve as a juror in a death penalty case in Alabama. The evidence showed that the defendant was involved in the murder but that his co-defendant committed the shooting. We convicted him and then had to decide what his sentence should be.

Choosing between a sentence of life or death was not an easy decision for the jury. I knew I could impose the death penalty if I thought it was appropriate, but I went into the case with an open mind because I did not know what to expect. We took the evidence into account, and considered the opportunity he had to rehabilitate himself and seek forgiveness from God. We listened to each other’s arguments for life and death. Eventually, the group of jurors who wanted to impose a life sentence persuaded some of the jurors who wanted death. In the end, the jury voted to recommend a life sentence by seven to five.

After all that time and careful deliberation, the judge overrode our decision and imposed the death penalty. It was a slap in the face that shook my confidence in the criminal justice system. The whole process was a waste of time and taxpayer dollars.

Hundreds of jurors in Alabama and three other states that once had the judicial override rule had similar experiences. We were called to jury duty, conscientiously served on capital trials, and made a recommendation about whether one of our fellow citizens should live or die, only to have the judge throw our hard work out the window.

For example, another Alabama juror served on the 1992 capital trial of Larry Padgett, who was accused of murder. At the guilt phase, she wanted to vote to acquit, but other jurors convinced her to vote for a guilty verdict. During the sentencing phase, she still doubted Mr. Padgett’s guilt and voted for life along with eight other jurors. She was devastated when the trial judge overrode the jury’s recommendation and sentenced Mr. Padgett to death. Like me, she thought the trial and jury deliberations were a waste of time and unfair to the jury and Mr. Padgett.

After Mr. Padgett’s trial, his conviction was reversed because the prosecution had improperly suppressed evidence. Blood was found at the crime scene that didn’t belong to Mr. Padgett or the victim, but this information wasn’t shared with Mr. Padgett’s attorneys or the jury. Mr. Padgett was retried and acquitted. It turns out, the jury was right to have doubts.

Only four states ever allowed judicial override and all four have abandoned it. Even so, 35 people still face execution because a judge imposed a death sentence after a jury voted in favor of life. The entire nation has rejected the practice of judicial override, but that doesn¹t change things for the people who were sentenced to death when it was permitted.

Another Alabama man on death row, Calvin McMillan, is asking the U.S. Supreme Court to accept his case and hold that the execution of a person sentenced to death by judicial override violates the Eighth Amendment. In Mr. McMillan’s case, the jury voted eight to four in favor of a sentence of life without parole. The judge speculated that the jurors were “tired" of the deliberative process, cast doubt on the legitimacy of their vote for life, and sent Mr. McMillan to death row instead.

The faithful work of a jury should not be cast aside cavalierly. Juries are the voice of the community and its values. As important, juries provide a check on the government’s power to take away a citizen’s life and liberty. Nowhere is the jury’s role more important than in a death penalty case when a person’s life is on the line.

Mr. McMillan’s petition to the Supreme Court understandably focuses on the harm that judicial override caused him. But there’s harm to the citizens who serve on juries, too. The legacy of judicial override stamps some juries with a mark of inferiority, as though we are too emotional or incompetent to do our jobs. The Court, which is expected to conference on this question on Nov. 20, should accept Calvin McMillan’s case and make sure he is not executed because a judge imposed death after the jury’s recommendation for life.

Francis Miles resides in Alabama. He submitted a “friend of the court” brief in support of Mr. McMillan’s petition for a writ of certiorari.