« A weekend full of interesting who news | Main | Yet another round of notable "who" developments concerning the death penalty and federal mandatory minimums »

January 30, 2014

Other than the defendant, which "whos" would you say should be considered most responsible for the death sentences in...





The principal goal of our pre-sentencing conversation about the Williams case on Wednesday was to shake everyone away from the (incomplete) view that a trial judge imposing a sentence is the most responsible (or even most important) decision-maker in the sentencing process.  

A sentencing judge (or, in some cases, a sentencing jury) is often the most visible decision-maker in the sentencing process, but all the formal and informal criminal justice players who act before the official moment of sentencing (as well as many that act later) can often be, both formally and practically, much more responsible for the sentence that is actually imposed and served than the sentencing judge.

So, with these thoughts in mind and our "who" insights and radar now heightened, I would love to start a discussion here about which "whos" you would be inclined to say should be considered most responsible for the death sentences in any or all of the high-profile cases referenced above.

January 30, 2014 in Current Affairs, SCOTUS cases of note, Who decides | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Other than the defendant, which "whos" would you say should be considered most responsible for the death sentences in...:


In Williams, the probation officer was most responsible for the death penalty. The sentencing judge relied on the probation report, and the officer had broad discretion in choosing what to put in the report and how to discribe the facts.

In McGautha, the jury was most responsible. The McGautha court held that the standardless jury sentencing was not against the Constitution, and therefore the jury had broad discretion.

In Furman, the legislators was most responsible. If there had been a carefully drafted statute on the jury sentencing, the jury might not have chosen the death penalty. Even if the jury had chosen to death again under that statute, the Court would have upheld the jury decision.

In Tosarnaev, Attorney General is most responsible if he refuses to authorize the death penalty. If he does so, Tosarnaev will no longer be in the death row.

Posted by: Yaeko | Jan 30, 2014 7:50:52 PM

I do not think we can discuss Tsarnaev's case and the "who" in who may be responsible for the death penalty being imposed in his case without discussing the "War on Terror." The initial frenzy to figure out the original ethnicity and the religion of the Boston Bomber suggests that his identity has as much to do with what sentence will be imposed on him as his crime does (much like in the Williams case). Because of this, regardless of what factors his attorney may bring up to make him seem less "evil" than other people accused of murder, there will probably be a huge public outcry if the death penalty is taken off of the table.

So, there are several "who's" that may impact his sentence. Terrorists, George Bush, the public who have been conditioned by the media and politicians to associate terrorism with a specific group of people, etc. That is why, though the Attorney General may be the most visible actor in the sentencing of Tsarnaev, history and the public's biases will probably have a more significant effect on what happens to him (or will at least have enough to say about it if a different decision is made to impact future cases).

Posted by: Hannah M. | Feb 4, 2014 10:42:28 AM

In the Tsarnaev case, maybe the Boston Athletic Association--the Boston Marathon’s founder. If there were no Boston Marathon to bomb, a hallowed and historically important event, I wonder if prosecutors and the American public still push for federal jurisdiction and death. Even in another gruesome, high profile Massachusetts case--Aaron Hernandez’s--I don’t hear anyone clamoring to find a federal angle to execute him. The Marathon's stature is very important. When one commits a crime that symbolic, especially in the name of terrorism, he or she should be prepared for the worst the Federal system has to offer.

Posted by: Adam P. | Feb 13, 2014 8:07:00 PM

This may be more applicable to "who does" rather than "who should" have the most power in death cases, but here goes:

I have recently started watching Game of Thrones and a couple things reminded me of this class.

First, Ned Stark said in the very first episode, "The man who passes the sentence should swing the sword." He imposed a death sentence on someone who deserted and Ned himself swung the sword and killed the man. So perhaps in our modern death penalty, we should have the jury/judge who imposed the death sentence actually carry it out? I can't see this actually happening, however, I think it's an interesting thought, especially since it would impress the seriousness of the sentence upon those who impose it.

Second, in an episode I just watched a riddle was posed regarding who truly has power:

"In a room sit three great men, a king, a priest, and a rich man with his gold. Between them stands a sellsword, a little man of common birth and no great mind. Each of the great ones bids him slay the other two. 'Do it,' says the king, 'for I am your lawful ruler.' 'Do it,' says the priest, 'for I command you in the names of the gods.' 'Do it,' says the rich man, 'and all this gold shall be yours.' So tell me- who lives and who dies?"

Varys - "Perchance you have considered the riddle I posed you that day in the inn?"

Tyrion - "It has crossed my mind a time or two. The king, the priest, the rich man-who lives and who dies? Who will the swordsman obey? It's a riddle without an answer, or rather, too many answers. All depends on the man with the sword."

Varys - "And yet he is no one. He has neither crown nor gold nor favor of the gods, only a piece of pointed steel."

Tyrion - "That piece of steel is the power of life and death."

Varys - "Just so . . . yet if it is the swordsmen who rule us in truth, why do we pretend our kings hold the power? Why should a strong man with a sword ever obey a child king like Joffrey, or a wine-sodden oaf like his father?"

Tyrion - "Because these child kings and drunken oafs can call other strong men, with other swords."

Varys - "Then these other swordsmen have the true power. Or do they? Whence came their swords? Why do they obey? Some say knowledge is power. Some tell us that all power comes from the gods. Others say it derives from law. Yet that day on the steps of Baelor's Sept, our godly High Septon and the lawful Queen Regent and your ever so-knowledgeable servant were as powerless as any cobbler or cooper in the crowd. Who truly killed Eddard Stark do you think? Joffrey, who gave the command? Ser Ilyn Payne, who swung the sword? Or . . . another?"

Tyrion - "Did you mean to answer your damned riddle, or only to make my head ache worse?"

Varys - "Here, then. Power resides where men believe it resides. No more and no less."

Tyrion - "So power is a mummer's trick?"

Varys - "A shadow on the wall, yet shadows can kill. And oft times a very small man can cast a very large shadow."

This entire discussion was interesting to me since it is analogous to the "whos" in death penalty (and non-death penalty) sentencing. For example, prosecutors can cast a large shadow on defendants by offering to take the death penalty off the table in exchange for a guilty plea. In the end, the prosecutor may have less power, since a jury could acquit the defendant, however, at the time/stage where the prosecutor has power, it seems as if they have all the power.

Posted by: Katie W. | Apr 10, 2014 9:18:14 AM

The comments to this entry are closed.