Representing the Community: A Look at the Selection Process in Obscenity Cases and Capital Sentencing

Should a person be executed? Should a work be condemned as obscene? At first blush, the idea of comparing the ways in which these decisions are supposed to be made may seem very odd. After all, what in the world do capital sentencing and the regulation of obscene speech have in common? At one level of abstraction, however, capital sentencing law and obscenity law are surprisingly similar. In each context, the Constitution requires that annihilation decisions be a product of what is essentially a two-pronged inquiry. On the one hand, a threshold determination must be made as to whether the subject before the court falls within a legally defined category rendering it eligible, as a matter of constitutional law, to be destroyed. On the other hand, the trier must make what I shall refer to as a “selection” decision on behalf of the community. This means that the trier must make an individualized, moral judgment as to whether the subject, if eligible for destruction, deserves that fate. Despite the similarity of the selection decisions that must be made in these two settings, the law demands that triers make them in very different ways. Capital sentencers are expected to determine whether an eligible defendant deserves to die according to their personal moral standards. Thus, when this decision is assigned to a judge, the judge speaks for the community only in the sense that he or she speaks in its name. Yet when this decision is assigned to a jury, the jury is supposed to “express the conscience of the community on the ultimate question of life or death,” as the law trusts that the decisions of a randomly selected group of people voting as “free agents” can be expected to mirror the community’s preferences. In obscenity cases, by way of contrast, judges and juries are instructed to make these decisions by identifying and applying community standards. That is, they are told to function as the community’s “delegates.” Given the special constitutional value of life and freedom of expression, and the extensive constitutional regulation of the procedures by which selection decisions are made in each context, it seems natural to ask why these differences exist, and whether they ought to. This inquiry raises some important questions of constitutional law, psychology, epistemology, and political theory: In what sense do triers “represent” the community in the selection phase of these proceedings? What do we mean when we say that they must express “the community’s” sentiments in these contexts? How accurately can juries or judges identify community sentiments in these cases? How accurately can they express those feelings by making these selection decisions as free agents? How much freedom should a legislature have in these settings to define a community’s moral standards, select the means for their ascertainment, or authorize triers to make selection decisions without regard to public opinion? These are some of the issues that I shall explore in this article. But first, in Part I, I will fill in the details of the picture of capital sentencing and obscenity law outlined above. In Parts II and III, I will examine the procedures according to which juries are to resolve the selection issues in these settings. Part II will evaluate the representational theories according to which juries are supposed to voice community sentiments in obscenity cases and capital sentencing proceedings. Part III will consider whether there is any reason to use different means of expressing the community’s moral sensibilities in these contexts. Finally, in Part IV, I will explore the issues raised by a comparison of the different ways in which judges are directed to speak for the community in these cases.