Risking the Eighth Amendment: Arbitrariness, Juries and Discretion in Capital Cases
60 Pages Posted: 6 Jun 2005
This article argues that the stalled dialogue over the Supreme Court's administration of capital punishment suffers from a fundamental misunderstanding of the first principles of the Eighth Amendment. Recognition of this misunderstanding requires reassessing blind adherence to jury secrecy in capital cases. While Furman v. Georgia articulated an Eighth Amendment substantive right against arbitrary imposition of death, the Court later recast Furman to require procedures that merely reduced a substantial risk of arbitrariness. Critics have decried the failure of the ensuing guided discretion statutes to reduce risk, but have assumed risk management as the only alternative. A look back to the true mandate of Furman provides the alternative. If the Eighth Amendment does not tolerate arbitrariness, then a capital punishment system that shields evidence of arbitrariness through jury secrecy cannot survive. The vehicle for exposing arbitrariness is a review of jurors' reasons for imposing death in an individual case. A close look at the practice of jury secrecy through evidence rules reveals inconsistent, confused and varied enforcement. Further, the policy rationales supporting jury secrecy are outweighed by the constitutional mandate in capital cases. While there are practical hurdles to mining the jurors' reasons for imposing death, they are far from insurmountable. Absent a moratorium, we should welcome change that informs and exposes the process of death.
Keywords: Criminal law, criminal procedure, capital punishment
JEL Classification: K14
Suggested Citation: Suggested Citation