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January 26, 2015

Quick reminder of class activities for last week of January

Just a quick note to remind everyone that...

1.  If you are submitting your first mini-paper this week (requirements outlined here), it is due by 12noon today (Monday, Jan 26).

2.  You should prepare for this week's classes by (re)reading Williams v. New York and by reading McGautha v. California.  (It is sufficient to read the shortened excerpts of these cases in the casebook, but I have here provided links to the full opinion for anyone interested in reading more.  Williams in not much longer in full text, but McGautha is a lot longer.)

3.  Our coming discussion of modern capital punishment administration in the United States is going to focus a lot on the "who sentences" question.  To that end, you should check out and reflect on the "who" aspects of these stories about high-profile on-going capital cases:

January 26, 2015 in Class activities, Course requirements | Permalink


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The "who sentences" question is honestly not a question that I have given much thought. Similarly, I have not thought much about having separate juries for the guilt phase and for the sentencing phase. I therefore found the "death-qualification of jurors" article especially interesting. The article states that some argue that separate juries should be used in order to avoid the pre-judgment of overly conservative jurors that arises out of the "death-penalty qualification." The article cites the arguments of death penalty opponents who posit that juries who are "death-penalty qualified" are more sympathetic to the prosecution and less diverse (less women, Democrats, and African Americans).

This argument gave me pause. We have had a handful of death-row exonerates speak at Moritz and this article left me wondering if those individuals would have avoided years of turmoil if they had only been tried by a true jury of their peers. In other words, the article left me to wonder whether these men are actually being deprived of their Constitutional rights because the individuals put in place to decide their fate do not accurately reflect the random sampling of the community at-large. Of course parties often attempt to select a jury more sympathetic to their side, however, by categorically removing opponents of the death-penalty it appears that the system is self-selecting a favorable jury for the prosecution. Additionally, even within a system of separated phases the jury sitting for the sentencing phase would still be predisposed to return a sentence of death based upon the death-penalty qualification.

I don't pretend to have a viable solution to this problem since unanimity of the jury is required (except (and I don't mean this to be cheeky) to abolish the death penalty altogether).

Posted by: Kristen Maiorino | Jan 26, 2015 7:11:31 PM

The distinction between the votes required to hear a case and the votes required to issue a stay seems troubling. Do petitioners' still have standing if they are dead because of the issue the Court decided to hear? Seriously. This is ridiculous.

Posted by: Ryan Semerad | Jan 27, 2015 10:58:42 AM

Although the less-diverse nature of death-penalty juries does give me pause, I have a very hard time seeing how the proposed alternative (separate jury for determining guilt and separate jury for sentencing) is a better idea. I can see the benefit of saving time and resources by only going through the involved process of seating a "death-penalty qualified" jury if the defendant is found guilty. However, I am not sure if this is a fair alternative to the defendant. The real issue that gives me pause is, what type of information would this sentencing jury hear? Would they hear the full panoply of information that would be available to a judge in a pre-sentencing report? Would they re-hear all of the information told to the first jury in a summarized form, essentially giving the defendant an effective re-trial but this time with the slanted view of guilt having already been established? In either of these situations, I do not see how the outcome would be drastically changed. I understand that we want fair and representative juries, and that is definitely something we should strive for, but I just do not see how this alternative would create that. Given either of the alternatives, and the types of defendant's we hope are being charged with death-penalty eligible offenses (i.e. individual's who are clearly tied to their given crimes), I do not foresee how this alternative is really likely to change the outcome in these cases. Even if we take into account the fact that some of these individuals, even if they are tied to the crime, are innocent, diverse juries convict innocent people every day, and you are still have the same non-diverse juries decide death versus LWOP.

Posted by: Stacia Rapp | Jan 27, 2015 11:07:18 AM

Here's an easy fix for the death-qualification of jurors issue: let judges do the sentencing instead. If we are worried about unrepresentative (and presumably biased) juries in capital cases, then why not leave the sentencing to judges, who we trust to be impartial and fair in all other sentencing decisions? Judges are more familiar with the intricacies of the sentencing process. They have a better grasp of the law. They have a finger on the moral pulse of their communities. Their decisions are subject to appellate review. Let them decide.

Posted by: Collin Flake | Jan 27, 2015 1:29:08 PM

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