Cite as: 513 U. S. 504 (1995)
Stevens, J., dissenting
ment that we may fairly presume to reflect the considered view of the community.
The Constitution does not permit judges to determine the guilt or innocence of an accused without her consent. The same reasons that underlie that prohibition apply to life-or-death sentencing decisions. The Framers of our Constitution "knew from history and experience that it was necessary to protect . . . against judges too responsive to the voice of higher authority." Duncan v. Louisiana, 391 U. S. 145, 156 (1968). As we explained in Duncan:
"[T]he jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence." Ibid.
Community participation is as critical in life-or-death sentencing decisions as in those decisions explicitly governed by the constitutional guarantee of a jury trial. The "higher authority" to whom present-day capital judges may be "too responsive" is a political climate in which judges who covet higher office—or who merely wish to remain judges—must constantly profess their fealty to the death penalty.5 Ala-5 This climate is evident in political attacks on candidates with reservations about the death penalty. For example, challengers for United States Senate seats in the recent elections routinely savaged their incumbent opponents for supporting federal judicial nominees perceived to be "soft" on capital punishment. See, e. g., Lehigh & Phillips, Romney, Kennedy Air Another Round of Attack Ads, Boston Globe, Oct. 31, 1994, Metro/ Region section, p. 21; Lesher, Huffington Attacks Rival on Judges, Los Angeles Times, Sept. 30, 1994, p. A3; Political Notebook, Memphis Commercial Appeal, Oct. 8, 1994, p. 3B (Frist-Sasser race). Some Senators have also made the death penalty a litmus test in judicial confirmation
519
Page: Index Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 NextLast modified: October 4, 2007