People who disagree about something can be induced to set aside their disagreement to unite against a common enemy. Prosecutors often use the ‘‘commonenemy rule’’ in death-penalty trials, highlighting the specter of the convicted capital defendant someday getting out of prison to harm the community again. The fear of a predator again walking the streets—the ‘‘common enemy’’ of all the jurors—can be so powerful that jurors will set aside their disagreement over whether to impose life imprisonment or death and rally against the prospect of the defendant’s future release.
California v. Ramos presented the Supreme Court with the issue of when a prosecutor may deploy this sort of argument (though neither the Court nor the litigants used the ‘‘common-enemy’’ locution). The capital statute at issue in Ramos allowed the jury to consider the fact that a sentence of life imprisonment without the possibility of parole leaves open the possibility of future commutation of the sentence by the governor. The defendant argued that this ‘‘inject[ed] an unacceptable level of unreliability into the capital sentencing determination’’ and ‘‘deflect[ed] the jury from its constitutionally mandated task of basing the penalty decision on the character of the defendant and the nature of the offense.’’ The Court rejected this challenge to California’s allowance of a commutation possibility to be considered in a death-penalty trial. The Court ruled that the possibility of commutation— though remote; indeed, very remote—was relevant to the issue of the defendant’s future dangerousness. The Court sidestepped the concern that this remote possibility might warp the jury’s decisionmaking process by emphasizing that the instruction to the jury to consider possible commutation was accurate and the defendant had the opportunity to argue the remoteness of this possibility. Thus, in a broader sense, California v. Ramos represents one instance where the Court places enormous—too much?—faith in the adversarial process to reject a constitutional challenge on the basis of the prospect of unreliable capital sentencing. For a contrasting instance where the Court exhibits a profound distrust of the adversarial process, consider its decision in Roper v. Simmons, where it constitutionally bans executing juvenile offenders in part because the adversarial process is ill-equipped to decide life or death for juvenile offenders.
References and Further Reading
See also Capital Punishment; Capital Punishment and the Equal Protection Clause Cases; Capital Punishment: Due Process Limits; Capital Punishment: History and Politics; Capital Punishment: Eighth Amendment Limits