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I guess I'm outdated, since I think the jury's powers have already been unduly encumbered, and that juries should have the power to pass on the justness of a law before convicting.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.
