Daniel Sutter: Score one for juries

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Alabama is currently the only state which allows judges to impose a death sentence over the decision of the jury. This is changing, as the legislature has passed a bill ending Alabama’s death penalty judicial override. This change is consistent with the role juries have historically played in protecting individual freedom.

Death penalty cases proceed in two phases. First, evidence is presented and the jury determines guilt. A guilty verdict on the death penalty eligible offense triggers the penalty phase, where the jury decides on death or life in prison. Alabama judges have been able to impose the death penalty when the jury decided on a life sentence, or a life sentence instead of death. Overrides have imposed a death sentence about ten times more often than they have spared a defendant.

What is wrong with judges overriding the jury? After all, judges normally impose sentences after a conviction. Judges could well apply the death penalty more consistently. Jurors typically will only know the facts of the case they hear, and may be unaware of sentences handed down in similar cases. I see two problems with the judicial override, one related to judges’ incentives and the other related to juries’ role in limiting government.

Alabama elects judges, so the judges with override power must run for reelection. In principle elections make judges (and other government officials) do what we want, but reality is more nuanced. Elections are decided by the citizens who vote, and voters are never perfectly informed. Most of us value justice and dislike crime, so we like judges who are tough on crime without violating the law. Overrides to impose the death penalty allow judges to show how tough they are on criminals.

Whether an override furthers justice is a harder question. The citizens on the jury have heard all the evidence and evaluated the credibility of all the witnesses. Their informed, considered decision was for a life sentence. That a judge imposed the death penalty in a murder case will influence far more votes than the subtleties relevant to know if this sentence served justice.

Judicial override undermines the jury’s protection against government overreach. The right to a trial by a jury of one’s peers emerged in England to limit the power of kings. English common law holds that the law prescribes rules people should follow to live in peace and exists prior to the establishment of government. Common law is consistent with the view that governments exist to serve citizens. America’s founders brought this common law, limited government heritage to our shores.

Limited government emerged in England against a historical backdrop of absolute monarchs. The kings wanted their word to be law, while the common law regulates the affairs of free people. The kings wanted to use law to control people, while free Englishmen were only supposed to be punished for criminal actions. This created a tension.

The right to trial by a jury limits the government. The king might want to jail or execute a political opponent. But before punishment can be imposed, a jury of other citizens must be convinced with evidence of a crime. The principle of double jeopardy is closely tied to trial by jury, since this prevents presenting the evidence to juries until one delivers the desired guilty verdict.

Many luminaries have recognized this crucial role of juries. English jurist William Blackstone called juries “the grand bulwark of all liberty.”  Thomas Jefferson saw juries “as the only anchor ever imagined by man, by which a government can be held to the principles of its constitution.” James Madison, the Father of the U.S. Constitution, thought that the jury trial was its grandest measure protecting freedom.

Constitutional rules help ensure that governments serve the interests of the people. Allowing only juries to determine criminal punishment is a vital constitutional rule. The question of capital punishment deeply divides Americans. If this ultimate punishment is ever justified, we the people should have the final say, and so eliminating Alabama’s judicial death penalty override is a change for the better.

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Daniel Sutter is the Charles G. Koch Professor of Economics with the Manuel H. Johnson Center for Political Economy at Troy University and host of Econversations on TrojanVision. The opinions expressed in this column are the author’s and do not necessarily reflect the views of Troy University.

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