Giving Earnest Jurors Too Little Power
The other argument Justice Sotomayor made against Alabama's sentencing scheme she made alone. Not a single other justice was willing to say that Alabama's "judicial override" is inconsistent with the Court's modern precedent in Apprendi v. New Jersey or Ring v. Arizona, two cases that stand today for the proposition that judges may not increase a criminal defendant's sentence based upon facts not found by a jury. Justice Sotomayor wrote:
The very principles that animated our decisions in Apprendi and Ring call into doubt the validity of Alabama’s capital sentencing scheme. Alabama permits a defendant to present mitigating circumstances that weigh against imposition of the death penalty. See Ala. Code §§13A–5–51, 13A–5–52. Indeed, we have long held that a defendant has a constitutional right to present mitigating evidence in capital cases. See Eddings v. Oklahoma, 455 U. S. 104, 110 (1982). 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. See Ala. Code §§13A–5– 46(e), 13A–5–47(e).
The statutorily required finding that the aggravating factors of a defendant’s crime outweigh the mitigating factors is therefore necessary to impose the death penalty. It is clear, then, that this factual finding exposes the defendant to a greater punishment than he would otherwise receive: death, as opposed to life without parole. Under Apprendi and Ring, a finding that has such an effect must be made by a jury.
In other words, Alabama impermissibly permits its judges to impose sentences based upon evidence that jurors have either rejected (in deliberations) or never seen (at trial). And what is particularly galling about the rest of the Court's silence on this point is the clarity with which most of those other justices have long spoken about the vital place of the jury in modern criminal justice. 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.
I do not see how Justice Scalia squares his eloquence in Ring with his silence in Woodward. And I do not know how to explain or justify the meek acceptance of this dubious result by the other members of the Court. Judicial elections in Alabama create all sorts of perversions of justice—I spoke about some of them just last week with Sue Bell Cobb, the retired Chief Justice of the Supreme Court of Alabama—but nowhere are those perversions more pronounced than when a state judge begging for votes condemns a man to death whom a jury had voted to spare.