The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_7659/93_7659.zd

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SUPREME COURT OF THE UNITED STATES
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No. 93-7659
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LOUISE HARRIS, PETITIONER v. ALABAMA
on writ of certiorari to the supreme court of
alabama
[February 22, 1995]

  Justice Stevens, dissenting.
  Alabama's capital sentencing statute is unique.  In
Alabama, unlike any other State in the Union, the trial
judge has unbridled discretion to sentence the defendant
to death-even though a jury has determined that death
is an inappropriate penalty, and even though no basis
exists for believing that any other reasonable, properly
instructed jury would impose a death sentence.  Even if
I accepted the reasoning of Spaziano v. Florida, 468
U. S. 447, 457-465 (1984), which I do not, see id., at 467
(Stevens, J., concurring in part and dissenting in part),
I would conclude that the complete absence of standards
to guide the judge's consideration of the jury's verdict
renders the statute invalid under the Eighth Amend-
ment and the Due Process Clause of the Fourteenth
Amendment.

                            I
  Our opinions have repeatedly emphasized that death
is a fundamentally different kind of penalty from any
other that society may impose.  State legislatures'
assignments of sentencing authority exemplify the
distinction.  In every State except Oklahoma, the trial
judge rather than the jury is responsible for sentencing
in noncapital cases.  The opposite consensus, however,
prevails in capital cases.  In 33 of the 37 States that
authorize capital punishment, the jury participates in
the sentencing decision.  In 29 of those States, the jury's
decision is final; in the other four-Alabama, Delaware,
Florida, and Indiana-the judge has the power to
override the jury's decision.  Russell, The Constitutional-
ity of Jury Override in Alabama Death Penalty Cases,
46 Ala. L. Rev. 5, 9-10 (1994).  Thus, 33 of the 37 state
legislatures that have enacted death penalty statutes
have given the jury sentencing responsibilities that differ
from the prevailing view of the jury's role in noncapital
cases. The Federal Government also provides for jury
sentencing in capital cases.
  These legislative decisions reflect the same judgment
expressed in England in 1953 after a 4-year study by
the Royal Commission on Capital Punishment:
-The question whether there are grounds for reliev-
ing the prisoner from the liability to be sentenced to
death is a question of quite a different order from
the question whether he should serve a shorter or a
longer term of imprisonment, and involves much
deeper moral and social issues.  The lesson of history
is that, when a criminal offence is punishable by
death, in practice juries will not confine their atten-
tion to the issue of guilt and ignore the sentence
which conviction entails.  In the past, British juries,
by perverse verdicts and by petitions, did at least as
much as the campaigns of the reformers to bring
the law into conformity with the developing moral
conceptions of the community, especially in the field
of capital punishment.  It may well be argued that
the men and women of the jury may be regarded as
a microcosm of the community, who will reflect the
changing attitudes of society as a whole to the
infliction of capital punishment, and that there
could therefore be no more appropriate body to
decide whether the fellow-citizen whom they have
found guilty of murder should suffer the penalty of
death prescribed by the law or should receive a
lesser punishment.-  Royal Commission on Capital
Punishment 1949-1953, Report 200 (1953).
  In ordinary, noncapital sentencing decisions, judges
consider society's interests in rehabilitating the offender,
in incapacitating him from committing offenses in the
future, and in deterring others from committing similar
offenses.  In capital sentencing decisions, however,
rehabilitation plays no role; incapacitation is largely
irrelevant, at least when the alternative of life imprison-
ment without possibility of parole is available; and the
assumption that death provides a greater deterrent than
other penalties is unsupported by persuasive evidence.
Instead, the interest that we have identified as the
principal justification for the death penalty is retribu-
tion: -capital punishment is an expression of society's
moral outrage at particularly offensive conduct.-  Gregg
v. Georgia, 428 U. S. 153, 183 (1976) (joint opinion of
Stewart, Powell, and Stevens, JJ.); see Gillers, Deciding
Who Dies, 129 U. Pa. L. Rev. 1, 54-56 (1980).  A capi-
tal sentence expresses the community's judgment that
no lesser sanction will provide an adequate response to
the defendant's outrageous affront to humanity.  Gregg,
428 U. S., at 184.   A representative cross-section of the
community should bear the responsibility to -express the
conscience of the community on the ultimate question of
life or death- in particular cases.  Witherspoon v. Illi-
nois, 391 U. S. 510, 519 (1968) (footnote omitted).  An
expression of community outrage carries the legitimacy
of law only if it rests on fair and careful consideration,
as free as possible from passion or prejudice.  Although
the public's apparent zeal for legislation authorizing
capital punishment might cast doubt on citizens' capac-
ity to apply such legislation fairly, I am convinced that
our jury system provides reliable insulation against the
passions of the polity.  Voting for a political candidate
who vows to be -tough on crime- differs vastly from
voting at the conclusion of an actual trial to condemn a
specific individual to death.  Jurors' responsibilities
terminate when their case ends; they answer only to
their own consciences; they rarely have any concern
about possible reprisals after their work is done.  More
importantly, they focus their attention on a particular
case involving the fate of one fellow citizen, rather than
on a generalized remedy for a global category of faceless
violent criminals who, in the abstract, may appear
unworthy of life.  A jury verdict expresses a collective
judgment that we may fairly presume to reflect the
considered view of the community.
  The Constitution does not permit judges to determine
the guilt or innocence of an accused without her con-
sent.  The same reasons that underlie that prohibition
apply to life-or-death sentencing decisions.  The Framers
of our Constitution -knew from history and experience
that it was necessary to protect . . . against judges too
responsive to the voice of higher authority.-  Duncan v.
Louisiana, 391 U. S. 145, 156 (1968).  As we explained
in Duncan:
-[T]he jury trial provisions in the Federal and State
Constitutions reflect a fundamental decision about
the exercise of official power-a reluctance to en-
trust plenary powers over the life and liberty of the
citizen to one judge or to a group of judges. Fear of
unchecked power, so typical of our State and Fed-
eral Governments in other respects, found expres-
sion in the criminal law in this insistence upon
community participation in the determination of
guilt or innocence.-  Ibid.
Community participation is as critical in life-or-death
sentencing decisions as in those decisions explicitly
governed by the constitutional guarantee of a jury trial.
The -higher authority- to whom present-day capital
judges may be -too responsive- is a political climate in
which judges who covet higher office-or who merely
wish to remain judges-must constantly profess their
fealty to the death penalty.  Alabama trial judges face
partisan election every six years.  Ala. Code 17-2-7
(1987).  The danger that they will bend to political
pressures when pronouncing sentence in highly publi-
cized capital cases is the same danger confronted by
judges beholden to King George III.

                           II
  In my opinion, total reliance on judges to pronounce
sentences of death is constitutionally unacceptable.  See
Walton v. Arizona, 497 U. S. 639, 708 (1990) (Stevens,
J., dissenting).  While the addition of an advisory jury
may ameliorate concerns about judicial sentencing in
some cases, more often that addition makes the scheme
much worse, especially when, as in Alabama, the jury's
verdict carries no necessary weight.
  If Alabama's statute expressly provided for a death
sentence upon a verdict by either the jury or the judge,
I have no doubt it would violate the Constitution's
command that no defendant -be twice put in jeopardy of
life or limb.-  U. S. Const., Amdt. V; cf. Bullington v.
Missouri, 451 U. S. 430, 444-46 (1981).  The Alabama
scheme has the same practical effect.  As the Court
recognizes, ante, at 9, Alabama trial judges almost
always adopt jury verdicts recommending death; a pros-
ecutor who wins before the jury can be confident that
the defendant will receive a death sentence.  A prosecu-
tor who loses before the jury gets a second, fresh oppor-
tunity to secure a death sentence.  She may present the
judge with exactly the same evidence and arguments
that the jury rejected.  The defendant's life is twice put
in jeopardy, once before the jury and again in the re-
peat performance before a different, and likely less
sympathetic, decisionmaker.  A scheme that we assumed
would -provid[e] capital defendants with more, rather
than less, judicial protection,- Dobbert v. Florida, 432
U. S. 282, 295 (1977), has perversely devolved into a
procedure that requires the defendant to stave off a
death sentence at each of two de novo sentencing hear-
ings.
  Not surprisingly, given the political pressures they
face, judges are far more likely than juries to impose
the death penalty.  This has long been the case, and
the recent experience of judicial overrides confirms it.
Alabama judges have vetoed only five jury recommenda-
tions of death, but they have condemned 47 defendants
whom juries would have spared.  The Court acknowl-
edges this -ostensibly surprising- fact, ante, at 9, but
dismisses it as inconclusive, because -[w]e do not know
. . . how many cases in which a jury recommendation of
life imprisonment is adopted would have ended differ-
ently had the judge not been required to consider the
jury's advice.-  Ibid.  This attempt to shrug off the
reality of Alabama capital sentencing misses the point.
Perhaps Alabama judges would be even more severe,
and their sentences even more frequently inconsistent
with the community's sense of justice, if Alabama pro-
vided for no jury verdicts at all.  But the proper frame
of reference is not a sentencing scheme with no jury;
rather, it is a sentencing scheme with no judge-the
scheme maintained by 29 of 37 States with capital
punishment.  In that comparison, the fact that Alabama
trial judges have overridden more than nine juries' life
recommendations for every vetoed death recommenda-
tion is conclusive indeed.  Death sentences imposed by
judges, especially against jury recommendations, sever
the critical -link between contemporary community
values and the penal system.- Witherspoon, 391 U. S.,
at 519, n. 15.  They result in the execution of defend-
ants whom the community would spare.
  Death sentences imposed by judges over contrary jury
verdicts do more than countermand the community's
judgment: they express contempt for that judgment.
Judicial overrides undermine the jury system's central
tenet that -sharing in the administration of justice is a
phase of civic responsibility.-  Thiel v. Southern Pacific
Co., 328 U. S. 217, 227 (1946) (Frankfurter, J., dissent-
ing).  Overrides also sacrifice the legitimacy of jury
verdicts, at potentially great cost.  Whereas the public
presumes that a death sentence imposed by a jury
reflects the community's judgment that death is the
appropriate response to the defendant's crime, the same
presumption does not attach to a lone government offi-
cial's decree.  Indeed, government-sanctioned executions
unsupported by judgments of a fair cross-section of the
citizenry may undermine respect for the value of human
life itself and unwittingly increase tolerance of killing.
As Justice Brandeis reminded us, -government is the
potent, the omnipresent teacher. For good or for ill, it
teaches the whole people by its example. Crime is conta-
gious.-  Olmstead v. United States, 277 U. S. 438, 485
(1928) (dissenting opinion).  Unless the imposition of the
death penalty consistently rests on the most scrupulous
regard for fair procedure and the application of accepted
community standards, it may well teach a lesson that
aggravates the very dangers it was intended to deter.

                           III
  If the Court correctly held in Spaziano that the Con-
stitution's concerns with regularity and fairness do not
bar judges from imposing death sentences over contrary
jury verdicts, one would at least expect the Eighth
Amendment and the Due Process Clause of the Four-
teenth Amendment to require that such schemes main-
tain strict standards to regularize and constrain the
judge's discretion.  The Court today refuses to impose
any standard, holding that to do so would be -micro-
management.-  Ante, at 7.  But this case involves far
more than a mundane administrative detail.
  Alabama stands alone among the States in its refusal
to constrain its judges' power to condemn defendants
over contrary jury verdicts.  The Florida statute upheld
in Spaziano, as interpreted by the Florida Supreme
Court, requires the prosecutor to satisfy a more strin-
gent standard before the judge than before the jury,
prohibiting a judicial override unless the facts support-
ing the death sentence are -so clear and convincing that
virtually no reasonable person could differ.-  Tedder v.
State, 322 So. 2d 908, 910 (1975).  If that standard is
satisfied, a judge may rationally presume that the jury's
verdict did not fairly reflect the judgment of the commu-
nity.  Delaware and Indiana impose similar require-
ments for overrides.  See Pennell v. State, 604 A. 2d
1368, 1377-1378 (Del. 1992); Martinez-Chavez v. State,
534 N. E. 2d 731, 735 (Ind. 1989).
  We have repeatedly cited the Tedder standard with
approval, suggesting that the Constitution requires such
a constraint on a jury override provision.  See Spaziano,
468 U. S., at 465; Dobbert v. Florida, 432 U. S. 282,
294-295 (1977); Proffitt v. Florida, 428 U. S. 242, 252
(1976) (joint opinion of Stewart, Powell, and Stevens,
JJ.).  Today the Court dismisses those statements.
After Justice Blackmun stated in his opinion for the
Court in Spaziano that -[w]e are satisfied that the
Florida Supreme Court takes [Tedder] seriously and has
not hesitated to reverse a trial court if it derogates the
jury's role,- he added, as the majority notes, that -[o]ur
responsibility, however, is not to second-guess the defer-
ence accorded the jury's recommendation in a particular
case, but to ensure that the result of the process is not
arbitrary or discriminatory.-  468 U. S., at 465.  The
majority reads this second statement to mean that -the
hallmark of the analysis is not the particular weight a
State chooses to place upon the jury's advice.-  Ante, at
7.  That reading is overly ambitious at best.  The ques-
tion whether the Constitution requires the Tedder rule
goes squarely to -the result of the process.-  The Spa-
ziano Court declined to upset the result in the -particu-
lar case- before it based on the way the Florida Su-
preme Court had applied Tedder in that case.  It did
not announce that it would have reached the same
result had Florida abjured Tedder entirely; rather, it
appears to have made Tedder's role in the Florida
scheme a necessary consideration in its evaluation of
Florida overrides.  The Court's reading of Justice Black-
mun's opinion in Spaziano is tenable, but a more likely
reading is that his opinion meant to echo our previous
suggestions that a jury override scheme is unconstitu-
tional without Tedder.
  I would follow those suggestions and recognize Tedder
as a constitutional imperative.  As I have explained, an
unfettered judicial override of a jury verdict for life
imprisonment cannot be taken to represent the judg-
ment of the community.  A penalty that fails to reflect
the community's judgment that death is the appropriate
sentence constitutes cruel and unusual punishment
under our reasoning in Gregg.  Remarkably, the Court
attempts to bolster its holding by citing our reversal of
a Florida death sentence for error before the advisory
jury.  Ante, at 8, citing Espinosa v. Florida, 505 U. S.
___ (1992).  The Court forgets that the difference be-
tween Florida and Alabama is precisely what is at stake
in this case.  The Constitution compelled Espinosa for
the same ultimate reason it compels Tedder: the com-
munity's undistorted judgment must decide a capital
defendant's fate.  Proper attention to Espinosa would
lead the Court to reject the conclusion it reaches today.
  In reaching its result the Court also fails to consider
our longstanding principle that the Eighth Amendment
-must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society.-
Trop v. Dulles, 356 U. S. 86, 101 (1958).  The Spaziano
Court held that the rejection of capital jury sentencing
by all but seven States, and of capital jury overrides by
all but (at that time) three, did not demonstrate an
-evolving standard- disfavoring overrides.  Spaziano, 468
U. S., at 463-464.  Surely, however, the rejection of
standardless overrides by every State in the Union but
Alabama is a different matter.  Cf. Enmund v. Florida,
458 U. S. 782, 789-793 (1982).
  The Court today casts a cloud over the legitimacy of
our capital sentencing jurisprudence.  The most credible
justification for the death penalty is its expression of
the community's outrage.  To permit the state to exe-
cute a woman in spite of the community's considered
judgment that she should not die is to sever the death
penalty from its only legitimate mooring.  The absence
of any rudder on a judge's free-floating power to negate
the community's will, in my judgment, renders Ala-
bama's capital sentencing scheme fundamentally unfair
and results in cruel and unusual punishment.  I there-
fore respectfully dissent.