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Should Juries Recommend Capital Punishment? SCOTUS Will Decide

By Jonathan R. Tung, Esq. on October 07, 2015 | Last updated on March 21, 2019

The US Supreme Court ushered in a new term yesterday morning with a bevy of polarizing social issues: the death penalty, affirmative action, and contraception.

The Court's docket this year is already furnished with two cases of particular significance regarding capital punishment. The Court will answer this question: is a jury the correct body for recommending capital punishment?

In the case of the Hurst v. Florida, the legal issue the Court must settle is whether Florida's death sentencing scheme, which allows juries to recommend capital punishment by simple majority vote, is constitutional or not.

Unlike any other state in the USA, Florida only requires that the jury make a sentencing recommendation to the judge who in turn considers other aggravating factors when making a final sentence. But Hurst is noteworthy because it will have the Court clarify its previous ruling in Ring v. Arizona (2002).

In Ring, SCOTUS found that the Sixth Amendment seemed to require a jury to find the aggravating factors necessary for imposing the death penalty.

Unfettered Discretion Can Be Fixed With Procedural Safeguards

Beyond the jury question, the Court will also decide whether the death penalty is even constitutional. It has previously been well settled by the Court that the death penalty is generally permissible and does not violate the Eighth Amendment prohibition against cruel and unusual punishment.

There was a point in American history when the death penalty -- at least some form of it -- was considered unconstitutional. Consider, in 1972, the Court found that the unfettered discretion of the prosecutors and juries rendered the imposition of the death penalty to be a direct violation of the Eighth Amendment's famous prohibition.

It was Justice Potter Stewart who lamented that "death sentences [that are left to unfettered discretion of the juries and prosecutors] are cruel and unusual in the same way that being struck by lightning is cruel and unusual," suggesting that such jury driven decisions are unfairly random. Only when new procedures and requirements were set up did the Court retract its ban on the death penalty, convinced that Due Process had been protected.

Breyer Looms Over

Justice Breyer has famously made clear his current opinion that the death penalty is unconstitutional. He noted a number of different and innumerable factors that led him to his conclusion and detailed them all in a lengthy 40+ page dissent, arguably drowning out the majority voice in Glossip v. Gross (2015).

It remains to be seen whether or not Breyer's stirring and emphatic protest against capital punishment will sway the majority of this court to ban capital punishment in this land. The chances are slim given that Gross was a 2015 case and the Court are unlikely to overturn themselves within a calendar year. Still, it cannot be denied that Breyer can be credited for having shone a light on this most serious of American legal issues.

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