The Sixth Amendment guarantees criminal defendants the right to be tried by an impartial jury of their peers. As a practical exercise, the system, in which untrained members of the public act as seekers of truth, is imperfect and subjects defendants to a host of potential juror biases that go undetected during selection. I’m writing this piece about 24-hours after completing a binge of Netflix’s infuriating 10-part documentary Making a Murderer, so admittedly, I am feeling a bit cynical about our criminal justice system. I also just lost Powerball. Thanks Obama.
Making a Murderer chronicles the wrongful conviction of Wisconsinite Steven Avery for sexual assault, the 18-years he spent in prison as an innocent man, and his subsequent lawsuit against Manitowoc County, Wisconsin, as well as his post-exoneration conviction for murder. The documentary presents a compelling argument that Avery was wrongfully convicted of a murder he did not commit in retaliation for his lawsuit against Manitowoc County. An evolving story, just this week one of the jurors who voted to convict Avery of murder stated that she did so out of fear of retaliation. The case is currently awaiting a post-conviction appeal on whether, among other things, the prosecution allowed the jury pool to be tainted by relatives of Manitowoc County employees.
For Avery and the other countless individuals our criminal justice system has failed, the value of their Sixth Amendment right likely seems negligible. Since 1989, when Courts first began using DNA evidence, there have been 337 post-conviction DNA exoneration, 20 of prisoners sentenced to death. Yet, even with its flaws, the Sixth Amendment protects a fundamental right common law societies like our own have embraced since time immemorial. One that, at its purest, promises to place a populous buffer between the state seeking prosecution and the court administrating the proceedings.
It was a recognition of the precious nature of our Sixth Amendment right that underlines this week’s Hurst v. Florida decision by the Supreme Court invalidating the sentencing procedures of Florida’s death penalty. Under Florida law, prosecutors seeking the death penalty must litigate the issue to a jury following conviction. At this sentencing hearing, criminal defendants may present evidence to the jury of mitigating factors that would weigh against a sentence of death and for a sentence of life in prison without parole. After the sentencing hearing, Florida law allows the jury to make a sentence recommendation, but the ultimate sentencing determination rests with the presiding judge, who may, if he or she wishes, disregard the jury’s recommendation and impose a harsher or lesser penalty. Since 1976, juror recommendations have been disregarded by Florida judges in capital cases 111 times. In 91% of those cases, a judge imposed a death sentence despite a jury’s recommendation of life in prison without parole.
The Supreme Court, in an 8-1 decision, struck down Florida’s sentencing system, holding that the Sixth Amendment “requires a jury and not a judge to find each fact necessary to impose a sentence of death.” The holding continues a line of recent cases in which the Court preserves the fact-finding role of juries over judges. The case, however, says nothing of the State’s overall authority to seek and impose the death penalty. In fact, the State Attorney and Florida’s legislature have already begun the process of implementing new legislation that would pass constitutional muster under Hurst and leave the ultimate decision of whether to impose death on a criminal defendant to the jury.
A big question remains the fate of the 390 inmates currently on Florida’s death row. The answer largely depends on the Florida Supreme Court’s interpretation and application of the State’s retroactivity provisions to determine which inmates are eligible to receive new sentencing hearings. Until then, however, Florida’s Attorney General Pam Bondi has stated that “[t]he impact of the Court’s ruling on existing death sentences will need to be evaluated on a case-by-case basis.”
The Hurst decision is an important reaffirmation of our right to be tried publicly before a jury of our peers and is founded on the same philosophical values that underpin our Republic: that a government is most fair when it speaks through, and not to, the People. The Supreme Court’s decision understands that the People, warts and all, collectively are more fair and ultimately preferable to agents of the government such as judges acting as triers of fact. For those wrongfully convicted by a jury of their peers, the Hurst decision is of little consolation, as it does nothing to correct the systemic issues that make trial by jury imperfect. As a means of strengthening our criminal justice system by reinforcing the notion that the state acts by the collective will of the People, however, the decision is significant.