Death? let the jury decide.

Death? let the jury decide.

Jury--United States--Decision making.

Capital punishment--Florida.

An article by Michael A. Mello on the Legislation regulation and its importance of jury control.

Mello, Michael A.

Miami Harold

HIST 298, University of Mary Washington

1987-04-27

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English

Miami, FL

IN RESPONSE to Calvin Fox’s recent explanation of three reasons why judges, not juries, should impose capital punishment: The question is important, since the Legislature is currently considering repeal of that portion of Florida’s capital-punishment stature that permits a judge to override a jury’s verdict for life imprisonment and then to impose the death penalty.

• First, with an apocalyptic tone Mr. Fox argues that legislative repeal of the jury override will mean that “the 100 or so individuals now on Death Row may be entitled to have their death penalties set aside.”
  
  This figure is grossly exaggerated. Prof. Michael Radelet of the University of Florida, who keeps track of the statistics of Florida’s Death Row, Reports that although 87 death sentences have been imposed by trial judges, a full two-thirds of those sentences passed upon by the Florida Supreme Court have been reduced to life imprisonment. That court has affirmed death sentences in only 24 cases involving jury overrides, and several of these 24 are no longer capital cases for reasons unrelated to the override.
  
  At most repeal of the override would affect these 20 or so cases. And it need not affect even them. The Legislature could simply choose to make its new procedural rule applicable only to cases tried subsequent to the effective date of the repeal. I think such a provision would be unfair and unwise, but not unconstitutional.
  
  
• Second, Mr. Fox erroneously argues that Florida’s system of sentencing by the trial judge has been “consistently shown through intense Federal review to be the most reliable and proper system of imposing the death penalty.” This is most misleading. Almost a decade ago, the U.S. Supreme Court mad quite clear that a capital jury-sentencing stature would pass Constitutional muster provided that the jury gave its reasons for imposing death and that the state supreme court conducted a review to determine that the penalty was not applied in a disproportionate manner.
  
  Most states with the death penalty recognize that because the penalty is an expression of community outrage, an appropriate cross-section of the community whose outrage is being expressed should be given the responsibility for that decision. Of the 37 American states with capital punishment, 30 give the life-or-death decision to the jury. Mr. Fox cannot seriously mean that the statutes in these 30 states violate the Constitution, or that the 22 people put to death pursuant to these statues within the past decade were executed under unconstitutional statutes.
  
  Still, Mr. Fox argues, the death decision should be made by a “trained legal mind,” since judicial sentencing should lead to greater consistency among cases. Yet the ordinary predicates that provide consistency in non-capital sentencing, such as frequency of trying such an offense, observation of the recidivism rate for the offense, experience with the local parole and probation officers, and the like, do not pertain in the same degree, if at all, to capital cases.
  
  But more fundamentally, experience and expertise in legal rules cannot substitute for the ability of the jury to reflect community sentiment in its decision whether an individual defendant deserves to live or die.
  
  Because death-override cases are not automatically appealed to the Florida Supreme Court, there is no central data source through which such cases can be identified. Professor Radelet notes, however, that “numerous inquiries to several criminal attorneys and state officials makes us confident that there have been less than a dozen such cases since the current statutes was enacted.”
  
  Moreover, the Legislature could amend the statues to provide that a jury’s verdict for life is binding, but that the jury’s decision for death be subject for override by the court. Such a system would obviously create an asymmetry, but it is an asymmetry weighted on the side of mercy. That is offensive only if one believes that the grant of mercy to some somehow abridges the rights of others whose individual circumstances do not inspire mercy. At the guilt/innocence phase of a criminal trial, for example, a judge may enter a judgment of acquittal despite the jury’s rendition of a guilty verdict. Why not extend this principle to the penalty phase of the trial?
  
  Mr. Fox has made the best case that can be made for retention of Florida’s practice of permitting a single judge to sentence a person to die even when a jury of his peers has decided that he deserves to live. But his reasons themselves expose the bankruptcy of his position. The fact remains that the override results in a debasement of the jury’s role as the proper reflector of community sentiment. The override wastes finite judicial resources. Legislative repeal of the jury override is within the province, duty, and ethical obligation of the Florida Legislature.

Newspaper

Williams, Megan