Researchers know that jurors display "high confusion" when they try to read death penalty instructions, and that attempts to write the instructions more clearly don't help.
If you've ever wondered why juries find death penalty instructions so hard, the Supreme Court's three death penalty opinions yesterday should set you straight. (SCOTUSblog has links to all three opinions here, and analysis here.) It turns out the Supreme Court has no idea what the law is either.
It's clear
The main opinion is Abdul-Kabir v. Quarterman. Justice Stevens's majority opinion reviews the Court's prior cases and concludes that they impose a clear rule. Under that rule, Justice Stevens says, a Texas trial court was clearly required to instruct the jurors that they could consider mitigating factors before deciding on a death sentence, and the Fifth Circuit was clearly required to overturn the sentence on that ground.
It's unclear
The opinion that's being quoted everywhere, though, is Chief Justice Roberts's dissent. He argues that the law isn't clear, it's a mess -- in fact, a "dog's breakfast":
We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to "clearly established" federal law. If the law were indeed clearly established by our decisions "as of the time of the relevant state-court decision," Williams v. Taylor, 529 U. S. 362, 412 (2000), it should not take the Court more than a dozen pages of close analysis of plurality, concurring, and even dissenting opinions to explain what that "clearly established" law was. Ante, at 10-24. When the state courts considered these cases, our precedents did not provide them with "clearly established" law, but instead a dog's breakfast of divided, conflicting, and ever-changing analyses. That is how the Justices on this Court viewed the matter, as they shifted from being in the majority, plurality, concurrence, or dissent from case to case, repeatedly lamenting the failure of their colleagues to follow a consistent path.
Commentators are chiming in to vote on who's right: the law is clear here, a disaster there. Meanwhile, two things are resonating with me. First, it's a lot to ask twelve jurors to unanimously apply death penalty law when nine Supreme Court justices cannot. But we knew that.
More troubling is what the Chief Justice's dissent comes down to. The Court's jurisprudence is a mess, he tells us . . . and so the defendant should die. I'm not sure I'd give that analysis to my dog.
(Photo by James and Lori at http://www.flickr.com/photos/jnl/48331634/; license details there.)
