The Volokh Conspiracy

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Volokh Conspiracy

When may jury no-death-penalty decisions be trumped by the judge?


The Supreme Court will likely decide in the next few days whether to take a case raising this issue, Lockhart v. Alabama. If you're interested in the right to jury trial—see, e.g., Ring v. Arizona, which held that any facts relevant to whether to impose a death sentence must be found by a jury—or in the death penalty, check it out; the petition lays things out well, and the government's brief ably presents the counterargument, and there's also a reply and an amicus brief. An excerpt from the amicus brief:

Mr. Lockhart's sentence violates [the jury trial right] in two clear ways. First, Alabama judges can override jury-determined life sentences only if they judicially find sufficient facts to support the override—a remarkably clear-cut Apprendi violation. If a trial court's factual findings are insufficient to support a death sentence, the Alabama Supreme Court will reverse and order entry of life without parole…. Alabama trial courts are further empowered to make these findings "based upon information known only to the trial court and not to the jury, when such information can properly be used to undermine a mitigating circumstance." Carroll v. State, 852 So. 2d 833, 836 (Ala. 2002). Mr. Lockhart's sentencing judge thus made nearly twenty pages of judicial fact-findings—seven based on facts not known to the jury—and concluded that "had the jury been aware of the additional facts known to the Court, their sentencing recommendation would likely have differed." Those findings were "necessary for imposition of the death penalty" and thus violated the Sixth Amendment. Ring v. Arizona, 536 U.S. 584, 609 (2002).

Second, individuals are eligible for the death penalty under Alabama law only if the "aggravating factors … outweigh the mitigating circumstances." Here, the jury unanimously found that they do not. That should have been the end of the matter, since imposing any greater punishment required the judge to make a contrary finding. After all, "the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives … must be found by the jury beyond a reasonable doubt." Ring, 536 U.S. at 610 (Scalia, J., concurring).

And here's an excerpt of Ex parte Waldrop (Ala. 2002), which generally upheld the Alabama scheme:

Waldrop also claims that Ring and Apprendi require that the jury, and not the trial court, determine whether the aggravating circumstances outweigh the mitigating circumstances. Specifically, Waldrop claims that the weighing process is a "finding of fact" that raises the authorized maximum punishment to the death penalty….

Contrary to Waldrop's argument, the weighing process is not a factual determination. In fact, the relative "weight" of aggravating circumstances and mitigating circumstances is not susceptible to any quantum of proof…. This is because weighing the aggravating circumstances and the mitigating circumstances is a process in which "the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence." Moreover, the Supreme Court has held that the sentencer in a capital case need not even be instructed as to how to weigh particular facts when making a sentencing decision. See Harris v. Alabama, 513 U.S. 504, 512 (1995).

Thus, the weighing process is not a factual determination or an element of an offense; instead, it is a moral or legal judgment that takes into account a theoretically limitless set of facts and that cannot be reduced to a scientific formula or the discovery of a discrete, observable datum…. Consequently, Ringand Apprendi do not require that a jury weigh the aggravating circumstances and the mitigating circumstances.