Harris v. Alabama (93-7659), 513 U.S. 504 (1995).
[ Stevens ]
[ O'Connor ]
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No. 93-7659


on writ of certiorari to the supreme court of alabama

[February 22, 1995]

Justice Stevens , dissenting.

Our opinions have repeatedly emphasized that death is a fundamentally different kind of penalty from any other that society may impose. [n.1] 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 Constitutionality 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. [n.2]

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 relieving 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 offense is punishable by death, in practice juries will not confine their attention 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 imprisonment without possibility of parole is available; [n.3] and the assumption that death provides a greater deterrent than other penalties is unsupported by persuasive evidence. [n.4] Instead, the interest that we have identified as the principal justification for the death penalty is retribution: "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 capital 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. Illinois, 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' capacity 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 consent. 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 entrust 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 Federal Governments in other respects, found expression 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. [n.5] 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 publicized capital cases is the same danger confronted by judges beholden to King George III.

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 prosecutor who wins before the jury can be confident that the defendant will receive a death sentence. A prosecutor who loses before the jury gets a second, fresh opportunity 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 repeat 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), [n.6] has perversely devolved into a procedure that requires the defendant to stave off a death sentence at each of two de novo sentencing hearings.

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, [n.7] and the recent experience of judicial overrides confirms it. Alabama judges have vetoed only five jury recommendations of death, but they have condemned 47 defendants whom juries would have spared. [n.8] The Court acknowledges 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 differently 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 provided 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 recommendation 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 defendants 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., dissenting). 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 official'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. [n.9] 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 contagious." 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.

If the Court correctly held in Spaziano that the Constitution'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 Fourteenth Amendment to require that such schemes maintain 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 "micromanagement." 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 stringent standard before the judge than before the jury, prohibiting a judicial override unless the facts supporting 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 community. Delaware and Indiana impose similar requirements 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 deference 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 question whether the Constitution requires the Tedder rule goes squarely to "the result of the process." The Spaziano Court declined to upset the result in the "particular case" before it based on the way the Florida Supreme 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 Blackmun'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 unconstitutional 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 judgment 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 between 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 community's undistorted judgment must decide a capital defendant's fate. [n.10] 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 execute 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 Alabama's capital sentencing scheme fundamentally unfair and results in cruel and unusual punishment. I therefore respectfully dissent.


1 See, e.g., Lankford v. Idaho, 500 U.S. 110, 125 (1991); Clemons v. Mississippi, 494 U.S. 738, 750, n. 4 (1990); Booth v. Maryland, 482 U.S. 496, 509, n. 12 (1987); Solem v. Helm, 463 U.S. 277, 289, 294 (1983); Enmund v. Florida, 458 U.S. 782, 797 (1982); Beck v.

Alabama, 447 U.S. 625, 637-638 (1980); Gardner v. Florida, 430 U.S. 349, 357-358 (1977) (plurality opinion).

2 See Violent Crime Control and Law Enforcement Act of 1994, 108 Stat. 1966-1967.

3 In Gregg v. Georgia, 428 U.S. 153 (1976), although we noted that incapacitation had been advanced as a rationale for upholding the death penalty, id., at 183, n. 28 (opinion of Stewart, Powell, and Stevens, JJ.), the plurality opinion placed no reliance on incapacitation as an acceptable justification. See California v. Ramos, 463 U.S. 992, 1023, and n. 9 (1983) (Marshall, J., dissenting).

4 See, e.g., Spaziano v. Florida, 468 U.S. 447, 478-479 (1984) (Stevens, J., concurring in part and dissenting in part); H. Zeisel, The Limits of Law Enforcement 60-63 (1982); Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. 1, 49-54 (1980).

5 This climate is evident in political attacks on candidates with reservations about the death penalty. For example, challengers for United States Senate seats in the recent elections routinely savaged their incumbent opponents for supporting federal judicial nominees perceived to be "soft" on capital punishment. See, e.g., Lehigh & Phillips, Romney, Kennedy Air Another Round of Attack Ads, Boston Globe (Oct. 31, 1994), at Metro/Region 21; Lesher, Huffington Attacks Rival on Judges, L. A. Times (Sep. 30, 1994), at A3; Political Notebook, Memphis Commercial Appeal (Oct. 8, 1994), at 3B (Frist Sasser race). Some Senators have also made the death penalty a litmus test in judicial confirmation hearings. See, e.g., Lewis, G. O. P. To Challenge Judicial Nominees Who Oppose Death Penalty, N. Y. Times (Oct. 15, 1993), at A26; Vick, Barkett's Foes Show Strength Even in Defeat, St. Petersburg Times (Mar. 18, 1994), at 5B. As one commentator has written, "[m]ost experts on penal systems agree that capital punishment does not deter capital crime. But the public believes that it does, and politicians have been switching longstanding positions to accommodate that view. . . . This . . . is the democratic system." Wills, Read Polls, Heed America, N. Y. Times (Nov. 6, 1994), sec. 6 (magazine), p. 48.

6 I have always believed the legislative decision to authorize an override was intended to protect the defendant from the risk of an erroneous jury decision to impose the death penalty. See Proffitt v. Florida, 428 U.S. 242, 252-53 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). States have in the past argued that the override would serve to protect defendants. See, e.g., Brief for Respondent in Dobbert v. Florida, O. T. 1976, No. 76-5306, p. 17 ("It cannot be said that Florida's new [override] procedure reduces the possibility of mercy. In fact, it is enhanced").

7 See H. Zeisel, Some Data on Juror Attitudes Towards Capital Punishment 37-50 (1968).

8 Statistics from Florida and Indiana confirm that judges tend to override juries' life recommendations far more often than their death recommendations. Between 1972 and early 1992, Florida trial judges imposed death sentences over 134 juries' recommendations of life imprisonment. See Radelet and Mello, Death to Life Overrides: Saving the Resources of the Florida Supreme Court, 20 Fla. St. U. L. Rev. 195, 196 (1992). During the same period, Florida judges overrode only about 51 death recommendations. Id., at 210-211. In Indiana, between 1980 and early 1994, judges had used overrides to impose eight death sentences and only four life sentences. Memorandum from Paula Sites, Legal Director, Indiana Public Defender Council, to Supreme Court Library (Feb. 8, 1994) (lodged with the Clerk of this Court). The even more extreme disparity in Alabama may well be attributable to Alabama's unique failure to adopt the more stringent standard that governs overrides in the other states. See infra, at Part III.

9 Research has provided evidence that executions actually increase the level of violence in society. For example, a controlled, 56-year study in New York State revealed that an average of two additional homicides occurred in the month following an execution. See Bowers & Pierce, Deterrence or Brutalization: What Is the Effect of Executions?, 26 Crime and Delinquency 453 (1980). A 10 year study in California produced less conclusive but similar results. See Graves, The Deterrent Effect of Capital Punishment in California, in The Death Penalty in America 322, 327-331 (H. Bedau ed., 1967). Experienced prosecutors recognize this reality. Morgenthau, What Prosecutors Won't Tell You, N. Y. Times (Feb. 7, 1995), at A25 ("[B]y their brutalizing and dehumanizing effect, executions cause more murders than they prevent."). A court's unilateral decree of a death sentence surely magnifies the risk of such perverse consequences. This Court's recent refusal to stay an execution provides an illustration. After a jury had sentenced the defendant, the prosecutor announced that a different person had pulled the trigger. Nevertheless, the state executed the condemned man without giving him a chance to present this information to a jury. See Jacobs v. Scott, 513 U. S. ___, ___ (1995) (Stevens, J., dissenting from denial of stay of execution). Six days later, a news account described death penalty supporters' lack of concern about the danger of executing innocent people. "One [proponent of capital punishment] likened the death penalty to a childhood vaccine approved by the government with full knowledge that at least one child, somewhere, would die from an adverse reaction." Verhovek, When Justice Shows Its Darker Side, N. Y. Times (Jan. 8, 1995), sec. 4, p. 6.

10 Of course, the majority is correct to reaffirm the importance of remedying prejudicial error before advisory juries. When the Court next has occasion to review an Alabama jury related error and the sentencing judge has not revealed the degree of her reliance on the jury's advice, the majority apparently will be content to presume that the error, and the jury decision it tainted, mattered to the result.