The Decline of the Judicial Override

Posted: 23 Oct 2019

See all articles by Michael Radelet

Michael Radelet

University of Colorado at Boulder - Institute of Behavioral Sciences

G. Ben Cohen

The Promise of Justice Initiative

Date Written: October 2019

Abstract

Since 1972, the Supreme Court has experimented with regulation of the death penalty, seeking the illusive goals of consistency, reliability, and fairness. In this century, the court held that the Sixth Amendment prohibited judges from making findings necessary to impose a death sentence. Separately, the court held that the Eighth Amendment safeguarded evolving standards of decency as measured by national consensus. In this article, we discuss the role of judges in death determinations, identifying jurisdictions that initially (post 1972) allowed judge sentencing and naming the individuals who today remain under judge-imposed death sentences. The decisions guaranteeing a jury determination have so far been applied only to cases that have not undergone initial review in state courts. Key questions remain unresolved, including whether the evolving standards of decency permit the execution of more than 100 individuals who were condemned to death by judges without a jury's death verdict before implementation of the rules that now require unanimous jury votes.

Suggested Citation

Radelet, Michael and Cohen, G. Ben, The Decline of the Judicial Override (October 2019). Annual Review of Law and Social Science, Vol. 15, pp. 539-557, 2019. Available at SSRN: https://ssrn.com/abstract=3472513 or http://dx.doi.org/10.1146/annurev-lawsocsci-101518-042834

Michael Radelet

University of Colorado at Boulder - Institute of Behavioral Sciences ( email )

Boulder, CO 80309
United States

G. Ben Cohen (Contact Author)

The Promise of Justice Initiative ( email )

1024 Elysian Fields Ave
New Orleans, LA 70117
United States

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