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.
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.”
The Supreme Court has been very active on the First Amendment in the last few years. In 2010 it issued Citizens United, a controversial and unpopular decision which announced a robust vision of the role of corporate personhood. According to the New York Times, “[t]he First Amendment dominated” the 2011 term as well when the Court decided, among other cases, Brown v. Entertainment Merchants, a decision striking downa California statute which attempted to restrict the sale of violent videos to children, and Sorrell v. IMS Health, a decision striking down a Vermont statute which attempted to limit the sale of physician prescriber information for marketing purposes without the doctor’s permission on First Amendment grounds. These cases, and others, taken together reflect a distinct trend, in the Supreme Court and elsewhere, toward greater protection for commercial speech. This trend is the subject my new book, Brandishing the First Amendment: Commercial Expression in America (U. of Michigan Press, 2012). In Brandishing the First Amendment I discuss the way in which increased First Amendment protection for commercial speech has provided the intellectual foundation for increased protection for corporate political speech, which has, in turn been then used to argue for greater protection for commercial speech, thereby turning the First Amendment into a sort of all-purpose weapon against a variety of governmental regulations.
This is a troubling development because it is difficult to meaningfully and effectively regulate commerce if you cannot regulate commercial speech. This new and robust commercial speech doctrine threatens to undermine a good deal of the basic regulatory regime legitimized since the New Deal.In Brandishing the First Amendment I look at the various theories that have been offered for why we might want to protect freedom of expression, using as a starting point the work of the late Yale law professor
Thomas Emerson, in particular his book Toward a General Theory of the First Amendment, and conclude that none of interests that freedom of expression is meant to protect are particularly advanced, if at all, by protecting commercial speech. To the contrary, I argue there is good reason to suppose that offering robust protection to commercial speech may well undermine the very interests the protection for freedom of expression is thought to advance.
In Brandishing the First Amendment I draw on work in marketing research, psychology, behavioral economics, and professional and academic work in marketing and public relations to explore marketing practices and how they work and how marketers, driven by the imperatives of the market, may engage in promotional practices that are contrary to the public health and welfare. I also explore the attributes of corporate “personhood” as dictated by principles of corporate law and argue that an examination of all of these elements suggests that full First Amendment protection for commercial expression is likely to exacerbate many of the pressing social problems of our times, from changing consumption patterns to ameliorate global climate change to protecting the public from unsafe pharmaceutical drugs; from reining in unsafe promotional practices in the consumer credit market to regulating the sale of securities. Those interested in the interaction of the First Amendment, commerce, commercialism, and corporate influence in modern life will want to read this book.
This week, a “special master” in St. Louis begins review of the case of Reggie Clemons to determine if his trial was fair and his death sentence is just. Reggie Clemons is on Missouri’s death row for murders he did not commit. When Troy Davis was executed one year ago this month, we thought we’d put the absolute horror and national shame that our government would put an innocent man to death behind us. But the case of Reggie Clemons looms large – Missouri, the state that “compromised” Black people by authorizing slavery within certain parameters in order to be admitted to the United States, has continued that legacy of disrespect of Black life by engaging in a flawed, decades-long effort to execute an innocent Black man.
Let’s back up a little and lay out this terrible tale:
Late one night in 1991, two young white women plunged to their deaths from the Chain of Rocks Bridge over the Mississippi River in St. Louis, Mo. The original suspect, Thomas Cummins, the out-of-town cousin of the women originally admitted to making a sexual advance on one of them, startling her and causing her to fall into the river, her sister jumping in afterwards in a failed attempt to save her. Cummins confessed to the crime after failing a lie detector test and changing his story several times. Only after the police charged and then inexplicably released this first suspect, did they turn to Reggie Clemons, who had no criminal history, and three others and charge them with murder.
Reggie Clemons maintains his innocence and there is no physical evidence of his involvement in the deaths -- no fingerprints, no DNA, no hair or fiber samples – despite a rape accusation. Reggie Clemons’ case was marred by race bias, police brutality, an unconstitutionally-constituted jury, prosecutorial misconduct, and a wholly inadequate defense.