On Tuesday, the Supreme Court invalidated Florida’s bizarre, perverse death penalty system by a lopsided vote of 8–1. That is, undoubtedly, excellent news for capital punishment abolitionists. But the majority’s decision, penned by Justice Sonia Sotomayor, actually has nothing to do with the Eighth Amendment’s ban on “cruel and unusual punishments.” Rather, Sotomayor’s opinion revolves around the critical constitutional role that juries must play in any death penalty trial.
Florida’s death penalty scheme may be summarized quite simply: Judges can kill you. Under Florida law, the jury in a capital case may recommend a sentence to the judge. But the judge has no legal obligation to follow it: The jury’s decision is only “advisory.” That means the judge can ignore a jury’s recommendation of life in prison and sentence a defendant to death instead. Moreover, if the jury can’t reach a decision one way or the other, the judge is empowered to impose death. To do so, he need only find that “aggravating circumstances” existed that make the defendant eligible for death. (An aggravating circumstance is any factor, such as extreme depravity, that increases the defendant’s culpability.) The judge is legally empowered to make these factual findings on his own, with or without input from the jury.
This strange system’s constitutional defect is very straightforward. The Sixth Amendment’s guarantee of a jury trial requires that any fact that “expose[s] the defendant to a greater punishment than that authorized by the jury’s guilty verdict” must be submitted to a jury. This principle extends to death penalty cases: In 2002, the court held that any finding of an aggravating circumstance that exposes a defendant to death must emerge from the jury, not the judge. That case clearly dictates the outcome of this one. Florida law empowers judges to expose defendants to greater punishments than are authorized by juries. Thus, as the court held on Tuesday, Florida law violates the Sixth Amendment.
Notably, Justice Stephen Breyer, who is ill at ease with this interpretation of the Sixth Amendment, concurred on different grounds. He repeated his view that the Eighth Amendment requires a jury, not a judge, to impose the death penalty, since a jury better reflects the community’s “moral sensibility.” For what it’s worth, Breyer is absolutely right about that: Permitting a judge to condemn a defendant to death is exactly the kind of potentially arbitrary and capricious punishment proscribed by the Eighth Amendment. But I think Breyer is wrong to believe that the Sixth Amendment doesn’t offer a different route to the same conclusion. If judges can find their own set of facts and use them to alter a jury’s verdict, the Constitution’s jury trial guarantee is largely meaningless.
And then there’s Samuel Alito. In 2013, Alito essentially admitted that he doesn’t much care if a judge increases a defendant’s sentence based on facts not proved to the jury. So, predictably, Alito dissented on Tuesday, insisting that the jury still plays a “critically important role” in Florida’s system—even though the judge can override its recommendation of life and sentence a defendant to death, instead. Judges, Alito argues, perform little more than a “reviewing function” when they choose whether to send a defendant to the execution chamber. It is increasingly hard to take this justice seriously.
One final but crucial point worth mentioning: Tuesday’s decision casts grave doubt on the constitutionality of Alabama’s death penalty scheme, too. As the New Yorker explained last year, Alabama judges are, like their Florida counterparts, fully empowered to overrule a jury’s recommendation of life and sentence a defendant to death, instead. Judges routinely abuse this power—often, it seems, to ensure that they will be re-elected by tough-on-crime voters. In 2013, Sotomayor penned a powerful dissent from the court’s refusal to consider Alabama’s system, strongly suggesting that it violated the Constitution. On Tuesday, she vindicated this dissent in a majority opinion for the court. It may be her most important contribution to constitutional law yet.