A murderous felon in Alabama was, on conviction in 1994, sentenced to life in prison by his jury, and that sentence was overridden by the presiding judge, who ordered his execution. The man was scheduled to be executed Thursday, but the Supreme Court has stayed the execution pending its decision on whether to hear the man’s appeal of his execution.
The stay is consistent with the Court’s prior rulings striking State laws that allow judges to overrule juries and to impose death sentences where the juries decided otherwise. In this regard, I agree: the jury is the proper sentencer where a man’s life is in the balance.
However.
The Court’s prior no-judge-overrules precedent is based on its original precedent in a 1958 ruling in Trop v Dulles in which Chief Justice Earl Warren wrote that the evolving standards of decency that mark the progress of a maturing society mean that the 8th Amendment’s injunction against cruel and unusual punishment necessarily means that a born-citizen’s citizenship cannot be revoked by action of the Federal government—that would be a cruel and unusual destruction of a citizen’s political life. Over a series of subsequent rulings, that evolving standards standard has been applied to an ever broader series of cases the Court has heard (recall that this is deliberate for a Liberal Court: Justice Ruth Bader Ginsberg’s “living Constitution” ideology, for instance).
And so, here we are. The felon currently appealing his sentence is making the argument, among others, that his execution would itself be a cruel and unusual punishment under those evolving standards because the execution would result from a judge overruling the jury.
No state currently allows a judge to override a jury’s capital sentencing verdict. This constitutes not merely “national consensus,” but unanimous agreement that a sentence of death imposed by a judge contrary to a jury’s life verdict does not comport with our evolving standards of decency and the Eighth Amendment[.]
But this is wrong. Our society’s standards of decency may well be—I believe they are—evolving (whether the evolution necessarily, or even merely monotonically, moves in a maturing direction is a separate question), but the Constitution has not changed on this. The only way the Constitution lives, and it lives quite vibrantly, is through Article V and We the People, which provide for amending—evolving, if you will—this supreme Law of the Land. We the People have not amended our Constitution to say that execution is cruel and (or even “or”) unusual. Indeed, for judges, or Justices, to presume to carry out this evolution from the bench is, in the late Justice Antonin Scalia’s words, simply not compatible with democratic theory. No part of the Constitution can be held to mean whatever [it] ought to mean, and that unelected judges decide what that is*.
It’ll be interesting, and instructive, to hear the Court’s rationale for declining to hear the appeal, as it will be to hear the Court’s rationale, if it decides to hear, for overriding the trial judge’s sentence.
*A Matter of Interpretation, 2018 New Edition
Update: Corrected poorly selected noun in the 4th paragraph. The Court hears cases; it renders opinions.