Arbitrary and Capricious: The Supreme Court, the by Michael A. Foley

By Michael A. Foley

Justice Marshall as soon as remarked that if humans knew what he knew concerning the dying penalty, they might reject it overwhelmingly. Foley elucidates Marshall's declare that basic flaws exist within the implementation of the dying penalty. He courses us during the background of the ideal Court's demise penalty judgements, revealing a constitutional quagmire the court docket needs to navigate to prevent violating the basic tenant of equivalent justice for all.

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Indeed, argues Murphy, some of the judge’s “information” was based on hearsay. The trial judge’s decision then did rest on information that due process of law requires be made to 40 Arbitrary and Capricious the defendant and to the jury. Murphy does not oppose the use of relevant information in sentencing decisions. He opposes the secrecy present in such a decision. Due process, for Murphy, requires that defendants and juries receive the same information and have the same opportunity to consider and rule on its relevance.

16 In this case, the defendants challenged the prosecutor’s right to challenge for cause jurors who had been summarily excused from serving on the jury because they had conscientious scruples about imposing a death sentence on a person convicted of murder. Justice Gray, writing for the majority, found that prosecuting attorneys do have the right to challenge for cause those individuals whose beliefs could preclude them from performing their constitutional duty. He writes: As the defendants were indicted and to be tried for a crime punishable with death, those jurors who stated on voir dire that they had “conscientious scruples in regard to the infliction of the death penalty for crime” were rightly permitted to be challenged by the Government for cause.

A sentencing judge, however, can consider more objectively information relating to the defendant. Black writes: A sentencing judge, however, is not confined to the narrow issue of guilt. His task, within fixed statutory or constitutional limits, is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant—if not essential—to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.

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