The jury's still out: capital punishment & democracy.

Since the death penalty in this country is reserved for "a narrow category of the most serious crimes," usually heinous ones, it is fitting that the murders involved in this summer's two precedent-setting Supreme Court decisions are no exceptions. Daryl Atkins, whose appeal produced the Supreme Court decision banning the execution of mentally retarded murderers, had been convicted in Virginia of abduction, armed robbery, and capital murder. After a day of drinking and smoking marijuana, he and an accomplice abducted a serviceman at gunpoint, robbed him of the cash he was carrying, and drove him to an automated teller machine where they forced him to withdraw two hundred dollars. They then took him to an isolated area and--ignoring his pleas to be left unharmed--shot him eight times, killing him. Atkins had sixteen previous felony convictions, several involving wanton violence. In the penalty phase of the trial, the state of Virginia argued that Atkins was a man of "vile dangerousness."

Mustering the evidence of polling data, legislative votes, and world opinion to prove growing consensus, the Supreme Court invoked the Eighth Amendment's ban on cruel and unusual punishment and concluded that "death is not a suitable punishment for a mentally retarded criminal." Overturning a 1989 decision written by Justice Sandra Day O'Connor that upheld such executions, the court cited the "dramatic shift in the legislative landscape." In 1989, sixteen states had prohibited executing mentally retarded criminals. Today, thirty states do.

The 6-3 decision was delivered by Justice John Paul Stevens and joined by Justices O'Connor, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer--a familiar liberal alliance, with O'Connor and Kennedy as swing votes. Chief Justice William Rehnquist dissented, joined by Antonin Scalia and Clarence Thomas. Justice Scalia also filed a dissenting opinion, in which Rehnquist and Thomas joined--the familiar conservative alliance.

"Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members," wrote Scalia in a scathing eighteen-page dissent. He accused the majority of relying on "feelings" and "intuition" rather than the meaning of the Eighth Amendment. "The arrogance of this assumption of power takes one's breath away," he wrote. "Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes."

And there's the rub: current social attitudes. Using the phrase "evolving standards of decency" four times, the majority concluded that a consensus against such executions has developed. Scalia, Thomas, and Rehnquist say it hasn't. Both sides seemed to agree that the Eighth Amendment was written with what Yale Law Professor Akhil Reed Amar calls a built-in escalator clause. That is, over the years society has come to regard as harsh or cruel punishments that were once common and acceptable--triggering the Eighth Amendment ban.

If national opinion is indeed changing about capital punishment, how are the courts to know? The majority's answer is polling data combined with the legislative landscape. The truth is that the nation's Founders had a better answer. They thought long and hard about how to ensure that the evolving conscience of the community would be reflected in judicial decisions. Their solution is called the jury. Just as elections are the constitutional method by which the popular will is expressed to the executive and legislative branches, juries are the expression of the popular will in the judicial branch. If American democracy is working properly, a decline in public support for capital punishment will be reflected in these two popular vehicles--elections and juries.

Which brings us to the summer's second case, Ring v. Arizona, in which the court said that the Sixth Amendment right to trial by jury means that the jury--not the judge--must decide all facts necessary to impose a death penalty. Criminal procedure in this country had been moving in the opposite direction, with judges displacing traditional jury authority over fact finding.

Timothy Ring spent several weeks planning the robbery of a Wells Fargo armored van carrying over $800,000 in cash and checks. On the day of the robbery, Ring and two accomplices watched the van pull up and the driver open the door to smoke a cigarette. One of the three then shot and killed the driver with a rifle equipped with a homemade silencer. The jury found Ring guilty of felony murder, but deadlocked on premeditated murder. In the sentencing hearing, in which the jury did not participate, the judge listened to new testimony from an accomplice who said Ring had killed the driver and had subsequently bragged about his marksmanship. Citing the new testimony, the judge sentenced Ring to death. Ring appealed. In a 7-2 decision delivered by Justice Ginsburg, the Supreme Court said essentially: no death penalty without the jury finding the facts first.

The practical ramifications to this decision are enormous. Arizona alone has 129 prisoners on death row. The four other states that have systems like Arizona's--Colorado, Idaho, Montana, and Nebraska--have 39 condemned prisoners. Another 626 people are on death row in the four "hybrid" states--Alabama, Florida, Delaware, and Indiana--that have juries render advisory verdicts, with judges making the final decision.

The idea of juries as triers of fact goes back to the Greeks and has been a fundamental part of Anglo-American common law from the twelfth century forward. But juries are indeed inconvenient, inefficient, and unpredictable. So American law and practice has been whittling away at jurors' traditional prerogatives since the Civil War, particularly in trials involving heinous crimes. Yet it is precisely in the most difficult areas that the Founders expected the jury to bring to bear the conscience of the community. The Founders' delicate balancing of judge and jury was disregarded by those states that relegated fact-finding and capital sentencing to judges. This "reform" was often supported by death-penalty opponents who believed that inflamed juries were more likely than judges to impose death. In this they have been sadly mistaken.

Judge overrides of jury sentencing have overwhelmingly meant a judicial imposition of death after the jury recommended life imprisonment. Stephen B. Bright of the Southern Center for Human Rights says that Alabama, for example, has had eighty-three overrides from life to death and only seven from death to life.

In her dissent, in which only the chief justice joined, O'Connor predicted that the Ring decision will greatly overburden the courts--administrative efficiency having been one of the reasons states went with judge fact-finding and sentencing to begin with. And it surely will.

Scalia--often called the most conservative Supreme Court justice--understands far better than his liberal colleagues the centrality and subtlety of the jury in our system. In an earlier decision, he had attacked Breyer--often regarded as the most liberal justice--for sketching "an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the state....The Founders of the American republic were not prepared to leave it to the state, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free."

As the nation grapples with capital punishment over the next few years, it will at least have the advantage of having the criminal jury restored to its rightful place in the courts.

Julia Vitullo-Martin is a New York-based writer who contributes regularly to Commonweal.