The application of the death penalty carries numerous practical problems, beyond the ethical dilemmas that it might not have the dissuasive effect its supporters claim, and that it’s a punishment with no room for error because it’s irreparable. Yesterday the U.S. Supreme Court, far from abolishing it, declared anti-constitutional the practice of giving the judge the final decision about life and death.
In Florida, as well as in Alabama and Delaware, the jury recommends a punishment – such as death penalty – but it’s the judge who decides. Also in Florida, unlike most states with capital punishment, the jury’s decision need not be unanimous to apply the death penalty.
Those elements combined in the case of murder suspect Timothy Hurst. The jury recommended death penalty by a mere 7-5 difference, and after some fact finding the judge sentenced him to death.
This violates the Constitution’s Sixth Amendment, which establishes the right to a trial and sentence by an impartial jury, instead of a unilateral decision by a judge. It is the jury’s job to investigate the facts in search of both aggravating and mitigating circumstances, as Justice Sonia Sotomayor wrote in the Court’s opinion.
The aberration of the Florida system is better appreciated in Alabama. There, the judge is elected by the voters, so the magistrate’s discretion to apply capital punishment becomes an act of proselytism to show who is tougher on crime. Nearly 20% of death sentences there are the result of judicial override of a jury’s verdict. Sotomayor, in a 2013 decision, pointed out that a minority of Alabama judges imposed the death penalty unilaterally on 101 occasions in which the jury had recommended life imprisonment.
Those cases offer a powerful argument to do away with death penalty once and for all. The judicial system has big problems, which are reflected in the amount of prisoners being released many years after being sentenced, because a mistrial is declared. Yesterday’s ruling is one more step in the slow path towards that end.