If At First You Don't Succeed, Fry, Fry Again

The New York Times today reports:

If all 12 members of a jury in a capital case in federal court cannot agree on whether to impose the death penalty, a convicted defendant is automatically sentenced to life in prison.

But that may be about to change. A little-noticed provision in the House bill that reauthorized the antiterrorism law known as the USA Patriot Act would allow federal prosecutors further attempts at a death sentence if a capital jury deadlocks on the punishment. So long as at least one juror voted for death, prosecutors could empanel a new sentencing jury and argue again that execution was warranted.

The arguments in favor of the change attempt to analogize the fact that either conviction or acquittal of the substantive offense requires a unanimous jury verdict, and that the death penalty should be no different. This has symmetry on its side. On the other hand, however, the article quotes Law Prof Franklin Zimring as saying: "It's not supposed to be a level playing field. It's supposed to be a penalty available when nothing else will do."

Also noted in the article is the constitutionally permissible practice of "death qualifying juries." That is, conscientious objectors to the death penalty identified during voir dire may be dismissed for cause -- predicated on their unwillingness to apply the law due to their principled objections -- thus costing the prosecution none of its peremptory challenges. That practice itself has come in for criticism, and though I'd be lying to say I'm thrilled by it, it does have logic on its side: why should anyone be permitted to serve on a jury who signals she will selectively apply the law to the case based on her own ideas. Yes, one ought to be entitled to a jury of one's peers, but where one's peers are anarchists, say, and reject that murder is a crime, is it really reasonable to insist that they be impaneled? I'm venturing no opinion on this, just making an observation.

But as the Court has said time and again death is different. The degree of certitude required ought to be greater than for anything else in criminal law, and when two, three, or more death qualified juries have declined to impose the penalty, what does that say about the rectitude of its imposition in the circumstances of that case? Furthermore, one can't ignore the psychological trauma presented a defendant by the prospect of serial duplicative sentencing proceedings, which might drag on for years. Even if capital punishment itself isn't cruel and unusual as that phrase presently is interpreted by the Court, it seems to me wholly possible that such a sentencing by ordeal regime could be. Courts put such a premium on certainty and finality in criminal law -- writing the government a blank check to seek a death sentence with as many juries as it takes flies in the face of this mandate (on which are predicated, inter alia, arguments for reducing opportunities for defense appeals, which have made great headway with the evisceration, in recent decades, of convicts' access to habeas corpus and other remedies). And what about the burden on taxpayers: each one of these proceedings costs taxpayer money that might be better spent elsewhere, since it's not just the seeking of the death penalty that costs, but, assuming the prosecution eventually finds a sufficiently blood-thirsty jury to succeed, all the extra appeallate remedies due a person sentenced to death.

Lindsay's also on the case, noting, as well, another disturbing provision buried in the proposed USA PATRIOT Act revision.

(Mr. Pele, perhaps this will trigger the "rights of jurors" discussion you suggested recently?)

UPDATE: Binky noted a deficient link above, specifically the last one linked to the words "disturbing provision." It's been repaired. Thanks for the heads-up, Binky.