Roper and Juries

In comments to Sandefur's post below, Mr. Atma writes:

Well then, how about if we characterize them as children with serious psychological problems, who were beaten and abused by alcoholic stepfathers, and who were exposed to drugs and alcohol at a very young age? After all, that certainly fits the defendant in this case.

But as Mr. Atma is aware, the Eighth Amendment and Due Process Clause requires that juries be allowed to consider all mitigating evidence, including youth and childhood abuse.  What the Court did in Roper was take that question from the jury.  The Court held that juries were unworthy to dispense the ultimate punishment.

Maybe that's something Mr. Atma and Norm approve of.  Indeed, in a post below, Norm approved of the Court's taking away from the provience of the jury the ability to weigh youth as a mitigating factor.  I wonder how Norm would feel if the Court decided to take away the issues of damages from a jury, or if the Court decided that all trials should be before judges.  After all, the Eighth Amendment, like the Sixth and Seventh amendments, are just words, subject to a more "enlightened" interpretation at the Court's whim.

We either trust juries, or we don't.  In Roper, the Court distrusted the juries ability to weigh youth and childhood abuse as a mitigating factor.  Like State Farm v. Campbell, the Court said judges know better, and we must restrain juries.

I guess I'm outdated, since I think the jury's powers have already been unduly encumbered, and that juries should have the power to pass on the justness of a law before convicting.  But hey, in an era of tort reform, we can't be surprised when death is snatched from the jury.  After all, juries are out of control, right?

What issues will the Court next take from the jury?

UPDATE: Mr. Atma makes a peripheral but fair point, writing:

A jury can't consider mitigation evidence that it never sees. As soon as you start arguing that states should be providing an adequate defense to capital defendants, then I'll grant some validity to your argument about juries.

I disagree with Strickland, and I think that most people who call themselves "criminal defense lawyers" should be disbarred for incompetence.  I also think that all human institutions are flawed, and therefore, the death penalty should not be available in most cases.  But whether capital representation is inadequate (it is) is a different issue from whether the Court should take an issue away from the jury.

Also, I oppose the death penalty.  But so long as its constitutional, the Court must allow juries the option to met it out.  To say otherwise is to align one's self with the Roy Moore school of jurisprudence.

Comments

[Mahan Atma]

"But as Mr. Atma is aware, the Eighth Amendment requires the jury to consider all mitigating evidence, including youth and childhood abuse."

But as you are aware, the Eighth Amendment says nothing of the sort. Tell me, why aren't you objecting to this as an unconstitutional example of "judges making law" instead of relying on it in your own argument?

Second, you are literally put words in my mouth. If you are going to replace my words with your own, the least you could do is represent my argument honestly. I'm not only referring to 16- and 17-year olds, I'm referring to children of ALL ages.

"We either trust juries, or we don't."

Actually, I love juries. What I don't trust is the some states' concept of a defense attorney, who is often appointed to do a job they have no qualifications for, with completely inadequate resources to do it.

A jury can't consider mitigation evidence that it never sees. As soon as you start arguing that states should be providing an adequate defense to capital defendants, then I'll grant some validity to your argument about juries.

[Three Generations]

Some wonderful arguments have been made here on both sides; so much so that now i'm confused.

So, briefly, I want to return to the basic holding: It is unconstitutional to execute minors. However they arrived at it, whatever they may have relied on or acknowledged; the bottom line is that there will be no more executions of anyone under the age of 18.

Isn't everything else then an argument between proponents and opponents of the death penalty?

The Court hasn't merely taken this issue from the jury, but from the statutes of every state in the country.

[Mike]

Tell me, why aren't you objecting to this as an unconstitutional example of "judges making law" instead of relying on it in your own argument?

I should have said, that due process requires that juries be allowed to weigh all mitigating factors and will update my post. Judges tried to prevent juries from doing their jobs by keeping from them mitigating factors.

I'm not sure I put any words in your mouth, but in the interest of fairness, I'll quote you verbatim.

[jasonpw]

Here's the problem: evidentiary rules differ between the guilt and penalty phases. Prosecutors have a much broader latitude to introduce evidence of prior crimes of the accused, evidence of the "heinousness" of the crime, etc., in the penalty phase. Can a jury be trusted to make decisions we're comfortable in the face of this? Remember -- there's a reason why the evidentiary rules are stricter in the guilt phase.

Look, there's no denying that we're going to have rules of under- and over-inclusiveness by establishing a per se rule. But, should we risk over-inclusiveness at the hands of inflamed juries, and err on the side of excess deaths? Or err on the side of locking people up for life, without chance for parole, by establishing a potentially under-inclusive per se rule?

Weighing the costs on both sides, I'll happily live with the Court's decision.

[Mike]

Isn't everything else then an argument between proponents and opponents of the death penalty?

No - I am against the death penalty. But if the death penalty is constitutional, then the Court must allow juries to sentence convicts to death.

[Three Generations]

That I can live with. If you don't mind, however, could you please clarify what you mean by "I disagree with Strickland, and I think that most people who call themselves "criminal defense lawyers" should be disbarred for incompetence."

[Mahan Atma]

"But if the death penalty is constitutional, then the Court must allow juries to sentence convicts to death."

Does this apply to a retarded person as well?

[Mike]

If you don't mind, however, could you please clarify what you mean by "I disagree with Strickland, and I think that most people who call themselves "criminal defense lawyers" should be disbarred for incompetence."

That's a whole other post in the works. What I will say is that the Court's conception of a reasonably skilled trial advocate is more a depiction of an ass-clown; and that most lawyers who take criminal matters (usually door lawyers - i.e, if it walks through the door, I'll take it) are an embarassment.

[Mike]

Does this apply to a retarded person as well?

I don't think so. Age is a crude measure to maturity and potential for evil. Some people are quite mature at 16 where as others probably remain childish at 21. IQ, however, is a pretty solid measure for moral capacity and thus culpability.

[Mahan Atma]

"But whether capital representation is inadequate (it is) is a different issue from whether the Court should take an issue away from the jury."

You can say this, but the fact is that most people who are screaming about Roper could care less about increasing funding and raising standards for defense attorneys. (You may be the exception.) Does Mr. Sandefur raise this anywhere, or has he ever advocated spending more money on capital defense attorneys?

They may be logically separate issues, but at a practical, real-world level, the two are intimately linked. It is completely disingenuous to say, "I trust juries to take into account the mitigating evidence" when you make no effort/little to provide for a defense attorney who can actually put on mitigation evidence.