A recent study of death penalty cases has revealed that judges, who are ordinarily thought of as the guardians of criminal defendants‘ constitutional rights, often impose harsher punishments than jurors. This may be unsettling in its own right, but it is especially concerning when one considers that judges are the individuals charged with determining whether punishments are unconstitutionally cruel and unusual under the Eighth Amendment and that these determinations are supposed to be based on society‘s evolving standards of decency. The study suggests that judges are out of step with society‘s moral norms, raising the question of why our justice system entrusts judges, rather than juries, with resolving questions of whether punishments are unconstitutionally cruel and unusual. 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 more 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.
November 2015, Vol. 67, No. 6
Liesa L. Richter, Posnerian Hearsay: Slaying the Discretion Dragon
Sapna Kumar, Regulating Digital Trade
W. Keith Robinson, Economic Theory, Divided Infringement, and Enforcing Interactive Patents
Sandra F. Sperino, Retaliation and the Reasonable Person