Abstract

http://ssrn.com/abstract=1918497
 


 



The Missing Jury: The Neglected Role of Juries in Eighth Amendment Punishments Clause Determinations


Meghan J. Ryan


Southern Methodist University - Dedman School of Law

August 28, 2011

Florida Law Review, Vol. 64, No. 2, 2012

Abstract:     
A recent study of death penalty cases has revealed that judges, who are ordinarily thought of as the guardians of criminal defendants’ constitutional rights, are more likely to impose harsher punishments than jurors. This may be unsettling in its own right, but it is especially concerning because judges are the individuals charged with determining whether punishments are unconstitutionally cruel and unusual under the Eighth Amendment, and these determinations are supposed to be based on “the evolving standards of decency that mark the progress of a maturing society.” The study suggests that judges are out of step with society’s moral norms, raising the question of why judges, rather than juries, are entrusted with resolving constitutional questions of cruel and unusual punishments. This Article argues that juries are better equipped to make these determinations and that charging juries to employ their own moral values to decide these matters is consistent with the underlying purpose and history of the ratification of the Eighth Amendment. This shift in power would also be in line with the Supreme Court’s recent elevation of the jury in criminal cases such as Apprendi v. New Jersey and United States v. Booker.

Number of Pages in PDF File: 42

Keywords: Eighth Amendment, cruel and unusual punishments, cruel and unusual, Booker, Apprendi, jury, juries, constitutional history

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Date posted: August 29, 2011 ; Last revised: June 3, 2013

Suggested Citation

Ryan, Meghan J., The Missing Jury: The Neglected Role of Juries in Eighth Amendment Punishments Clause Determinations (August 28, 2011). Florida Law Review, Vol. 64, No. 2, 2012. Available at SSRN: http://ssrn.com/abstract=1918497 or http://dx.doi.org/10.2139/ssrn.1918497

Contact Information

Meghan J. Ryan (Contact Author)
Southern Methodist University - Dedman School of Law ( email )
P.O. Box 750116
Dallas, TX 75275
United States
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