There isn't much in the legal or political world that I respect more than a jury verdict. Even when it comes to cases like OJ -- who we all know was guilty -- once a jury makes a decision I'm generally satisfied. Do juries make mistakes? Sure. But there's no institution closer to the public pulse than a jury, and I'd sooner trust a panel of citizens with just about any question of law than I would trust a judge, legislature, or president. That said, even though I disagree with Jack Balkin's characterization of declining federal executions, and even though I'm strongly in favor of the death penalty, if juries are reluctant to impose it then that's fine with me. Mr. Balkin links to a Los Angeles Times article saying that Ashcroft isn't pleased with the trend:

A small number of federal districts, including pockets of Texas and Virginia, were accounting for the bulk of death cases. Experts decried the geographical disparities.

For Ashcroft, an ardent supporter of capital punishment, the solution was to seek the death penalty more often and more widely.

Since then, he has pushed federal prosecutors around the country — often over their objections — to be more aggressive in identifying prosecutions that could qualify as federal capital cases. Much of that effort has been in states that have banned or rarely impose capital punishment.

That's fine with me. Prosecutors need to do their jobs and enforce the laws, and if they don't like the laws to such a degree that they can't do so then they should quit.
With public support for the death penalty in decline, jurors have rebuffed calls for the death penalty in 23 of the 34 federal capital cases tried since 2001, according to the Federal Death Penalty Resource Counsel Project, a court- funded group that assists defense lawyers in capital cases.
I don't think the Times' claim that public support for the death penalty is waning is accurate, but if juries in particular instances decide not to impose the death penalty then I've got no problem with that.

Mr. Balkin says:

Juries all over the country are telling the courts that death is a matter of last resort, to be used sparingly, and only in the most serious cases. In many places they do not want it to be used at all. This is not timidity. It is not lack of empathy for victims. It is not insufficient concern with justice. It is civilization. By comparison with these juries all around the country, who regard the taking of a criminal defendant's life with supreme seriousness, Attorney General Ashcroft seems a savage, bloodthirsty brute.
Mr. Balkin is attempting to construe "civilization" in a certain way, and it's far from obvious to me that many people would agree that executions are necessarily "uncivilized". Capital punishment has been prevalent around the world in every culture for thousands of years, and aside from technological progress it's hard to see how our modern culture is particularly more civilized than those of our ancestors. Much of the argument depends on the definition of the word.

Even aside from that, however, I think it's ungenerous to cast the Attorney General as a "savage, bloodthirsty brute" when his primary concern in this matter appears to be that the law is not being applied equally across the nation, and that that inequality may be the result of the decisions of his subordinates. Inequalities that stem from jury differences are fine, but the federal government is supposed to treat everyone the same. Prosecutors are not elected, they're appointed bureaucrats, and they're supposed to be following the lead of our elected representatives.



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