Academic journal article Social Justice

The Problem of Explanation: Understanding the Scandal of Judicial Override in Capital Cases

Academic journal article Social Justice

The Problem of Explanation: Understanding the Scandal of Judicial Override in Capital Cases

Article excerpt

In this article, the authors analyze the intertwined problems of judgment and explanation through a comprehensive study of judicial override opinions. Of the 33 states that employ capital punishment, three--Alabama, Delaware, and Florida--are unusual in that the final decision on the death sentence is made by the trial judge after a sentence recommendation from the jury (rather than ultimately by the jury, as in all other death penalty states). Although capital statutes in these states have passed constitutional muster, they remain controversial because in approximately 220 cases trial judges have overridden jury recommendations for life and sentenced defendants to death. These states require the judge to write a sentencing opinion explaining his or her findings on aggravation and mitigation. Unlike any other arena in the legal landscape of America's death penalty, judge-overridden death sentences require something close to an explanation of the judgment. This study analyzes the total population of these opinions to study the problems of judgment and explanation by tracing the metaphysical, moral, and ideological aspects of what judges say when sentencing persons to death.

Keywords: death penalty, judicial role, criminal sentencing

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DECIDING TO SENTENCE A PERSON TO DEATH CREATES A DIFFICULT metaphysical problem for the decider--what Jennifer Culbert (2008) calls "the problem of judgment." Judging whether a person convicted of capital murder should be executed or spared requires a thoughtful decider to think hard about the nature of reality. The decision presents the decider with a string of questions about complex ideas such as intent, causality, justice, state power, the human mind, and the purposes of punishment.

Indeed, as Culbert (2008) shows, the US Supreme Court's about-face from McGautha v. California (1971) to Furman v. Georgia (1972) instantiates this metaphysical difficulty. In McGautha, the Court validated the idea that judging the worthiness of death or life can only be understood in relation to the matter being judged--and not in relation to some external set of "real" or "perfect" rules that are articulable:

To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express those characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability. (McGauthav. California 402 US 183 (1971); at 204, quoted in Culbert 2008, 18)

Reversing in Furman, the Court said that death sentences and executions were arbitrary--or ungoverned by any principles--and thus validated the opposite idea that there is a "real," external authority to which judgment can, and for death sentencing, must, refer. In terms of metaphysics as Culbert sees it, this move by the court mirrored the "error" made by Socrates in his quest for the "real" world of "pure truth" that exists outside the sensual experience of the human "apparent world" (see Culbert 2008, Ch. l).The metaphysical problem of judgment is to figure out whether there are "real" external truths that can (and must) govern the thing--life or death in this case--to be judged. In this study, we borrow the phrase--"problem of judgment"--to include its specifically metaphysical meaning, but also to include all the problems listed above.

US law has struggled with this problem since the early 1970s, producing a "Frankenstein's monster" (Zimring 2003) of contradictory jurisprudence that seesaws between the Furmanian position of a "two-world metaphysics" with "real' external truths that can give order to death sentencing, and the McGauthian position that rejects universality and focuses on the "self-evident-ness" of death sentencing. Along the way, the Court has tried to accommodate many of the vexing issues presented by the problem of judgment that challenge America's death penalty. …

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