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Mixed Messages: The Supreme Court’s Conflicting Decisions on Juries in Death Penalty Cases

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  • Civil Rights And Discrimination
  • Constitutional Law
  • Criminal Law And Procedure
  • Judges
  • Jurisprudence
  • Criminal Law
  • Criminal Procedure
  • Design
  • Political Science


The right to a jury determination of a capital defendant's fate has expanded recently. The era of judges making factual determinations then determining whether to apply a death sentence or judges having the power to overrule a jury's life sentence to impose death is over. The expanded right to access a jury and have it hold determinative power over a defendant's life has not, however, been accompanied by commensurate attention to the instructions that guide those jurors through the applicable law toward their verdict. Nor have adequate procedures been designed to produce a truly representative jury panel. In brief, the right to a jury has been enhanced without concern for the government’s obligations necessary to animate that right. This contradiction has clear consequences. A capital defendant puts his life in the hands of a group we have strong reason to suspect will have difficulty understanding their instructions, difficulty defining and applying mitigating evidence, and uncertainty regarding the true meaning of the sentences available to them. Moreover, that group was assembled systematically to be unrepresentative of community mores. In the cases highlighted here, we demonstrate that the Rehnquist Court led the Court toward a laissez faire position on the jury system. The Court asserts, without justification, that there is no problem. They offer unfalsiable evidence that the jury functioned properly. This has long-ranging implications for the jury system and for capital punishment.

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