Death Sentences Ruled Up to Juries

Calling into doubt nearly 800 death sentences, the Supreme Court ruled Monday that it is unconstitutional for judges, rather than jurors, to decide the key facts that call for sending a guilty person to death row.

The 7-2 decision, the second in a week to limit the death penalty, affects nine states, including Arizona, where judges decide who deserves to die.

It is not clear whether many inmates will be spared by Monday’s ruling, however, because the justices did not say it extends to old cases.

The latest decision, combined with last week’s ruling affecting the mentally retarded, does not represent a major retreat by the Supreme Court from the principle that states can impose death sentences. However, the two rulings will give hundreds of inmates a new chance to contest their death sentences and keep state officials tied up in litigation.

In Alabama, more than a quarter of the inmates condemned to die were sentenced by judges after juries had recommended they should be spared. Monday’s ruling suggests many of those death sentences will be reversed. However, the court did not say the ruling applies automatically to old cases.

Nonetheless, opponents of capital punishment were cheered by Supreme Court rulings for the first time in recent memory.

“This is the most favorable term in a quarter of a century in terms of death penalty jurisprudence,” said Stephen W. Hawkins, executive director of the National Coalition to Abolish the Death Penalty.

Others were more muted.

“It’s hard to tell whether this is a case about the death penalty or the right to a jury trial,” said Columbia University law professor James Liebman, an expert on capital punishment. Justices Antonin Scalia and Clarence Thomas, strong supporters of the death penalty, joined Monday’s ruling, he noted.

“But combined with [the ruling on mental retardation], it suggests the court has heard the public raising questions about the death penalty, and it is prepared, like the rest of us, to rethink the issue,” he said.

California should be unaffected by the latest ruling. The state’s law, like that in 28 others that allow capital punishment, requires juries to decide whether the defendant is guilty of a capital crime and whether he or she deserves to die for it.

In the past, the Supreme Court has upheld the judge-sentencing system too. A 1990 ruling affirmed Arizona’s system, but the justices took the unusual step of reversing that ruling Monday.

They did so based on a new concern about the role of juries in the criminal justice system.

“The right to trial by jury guaranteed by the 6th Amendment would be senselessly diminished,” wrote Justice Ruth Bader Ginsburg, if a judge alone can decide whether a participant in a robbery plot is, in fact, a murderer who should be executed.

That’s what happened in the case of Timothy Ring.

A jury in Phoenix convicted him for his role in the robbery of a Wells Fargo armored van that resulted in the death of the driver.

During their investigation, police received a tip and tapped the phones of several men, including Ring. The callers were overheard talking about the $562,000 in cash that was stolen. Police later searched Ring’s garage and found a duffel bag with $271,000 in cash.

After convicting him, the jury was sent home. In a separate sentencing hearing before a judge, prosecutors presented testimony from an accomplice who said Ring had masterminded the plot and shot the driver. The judge pronounced Ring the murderer and sentenced him to die.

By a lopsided margin in Ring vs. Arizona, 01-488, the Supreme Court reversed Ring’s sentence because the jury did not find him guilty of the ultimate crime that put him on death row.

His conviction in the robbery-murder plot stands, and Arizona prosecutors remain free to seek a new death sentence for him from a jury. But they must convince jurors unanimously and beyond a reasonable doubt that Ring was the triggerman.

In the past, the court has said new procedural rulings do not upset old convictions. But rulings that announce a fundamental constitutional principle do apply to all cases. Last week’s ruling was one such example. Because it is cruel and unusual punishment to execute a mentally retarded person, that rule extends to all cases, the justices said.

Eventually, they will have to decide, through rulings in future cases, whether fact-finding by jurors is a procedural rule or fundamental principle. Until then, state prosecutors and defense lawyers will be fighting to clarify just who will benefit from Monday’s decision.

Four other states--Colorado, Idaho, Montana and Nebraska--have judge-sentencing systems similar to Arizona’s. Another four--Alabama, Delaware, Florida and Indiana--have what Ginsburg referred to as “hybrid systems.” The jurors hear testimony on the sentence and make a recommendation, but the judge ultimately decides whether a guilty defendant receives a prison term or a death sentence.

In all the affected states, prosecutors have three options. They can agree to new sentencing hearings. They can step back and offer inmates a life prison term instead of a death sentence. Or they can argue in court that the Ring decision does not apply to certain inmates, either because the jury had recommended a death sentence or because the inmate’s appeals have run out.

Monday’s surprising decision is a triumph of sorts for Justice John Paul Stevens. For more than 20 years, he has criticized the reliance on judges to decide who receives the death penalty, and he dissented in the past when the court upheld such systems.

Two years ago, the liberal Stevens formed an odd-couple alliance with Scalia, a staunch conservative. Both had written admiringly of the English common-law principle that jurors should be entrusted with deciding all questions of guilt and innocence.

In June 2000, the high court handed down a 5-4 ruling in a case called Apprendi vs. New Jersey that stunned many lawyers and judges. It overturned a judge’s decision to add two years to the prison term given a New Jersey man for a handgun crime because, the judge said, he believed the defendant acted out of racial bias against an African American neighbor.

Without debating the merits of that conclusion, Stevens said the jury should have decided whether the defendant was guilty of a hate crime. “Any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury,” Stevens wrote. He was joined by liberal Justices Ginsburg and David H. Souter and conservatives Scalia and Thomas.

In a strong dissent, Justice Sandra Day O’Connor called that opinion a “watershed” that would upset the death sentencing systems in several states, including her home state of Arizona.

On Monday, her rueful prediction proved to be accurate. She and Chief Justice William H. Rehnquist, a fellow Arizonan, were the only dissenters.

In a concurring opinion, Scalia acknowledged being torn. He has faulted the court for repeatedly second-guessing the state’s handling of death penalty cases.

On the other hand, “our people’s traditional belief in the right to trial by jury is in perilous decline,” he said, if the court says it “is perfectly OK” for a judge to decide who is truly guilty. In the end, Scalia decided it was important to uphold the vital role of the jury, even if it meant upsetting scores of state cases. Thomas joined his opinion.

Justices Anthony M. Kennedy and Stephen G. Breyer, who dissented in the Apprendi case two years ago, joined Ginsburg’s majority ruling this time.

In a second sentencing decision handed down Monday, the high court said again that the Apprendi rule is triggered only when the judge’s extra sentence goes above the maximum in law.

In that case, a North Carolina judge sentenced a convicted drug dealer to seven years in prison, but only after he concluded the defendant had “brandished” a gun. The law called for a seven-year term for someone who “brandishes” a gun during a drug crime.

In his appeal in Harris vs. U.S., the inmate said he deserved a lesser prison term because the judge alone decided he brandished the gun.

The Supreme Court upheld his sentence on a 5-4 vote, since his total prison time was within the maximum, not above it.

By contrast, in the Arizona death penalty case, the maximum penalty for Ring’s conviction for his role in the robbery-murder plot was life in prison. He received a death sentence only because the judge ruled he was the triggerman.