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Jury only { June 25 2002 }

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Court: Judges Can't Impose Death Penalty
Only Jury May Decide to Execute Defendant

By Charles Lane
Washington Post Staff Writer
Tuesday, June 25, 2002; Page A01

The Supreme Court ruled yesterday that a jury, not a judge, must determine whether a capital defendant gets the death penalty, a decision that could ultimately take more people off death row than any other ruling by the court in three decades.

By a vote of 7 to 2, the court ruled that Arizona's death-sentencing law violates the constitutional guarantee of a jury trial. Under that law, judges alone decide whether the crime included "aggravating" factors, such as extreme brutality, that call for capital punishment. Colorado, Idaho, Montana and Nebraska have similar laws and with Arizona have a combined death row population of 168.

The decision casts serious doubt on laws in four other states -- Alabama, Delaware, Florida and Indiana -- in which the judge decides between life and death after hearing a jury's recommendation. In those states, there are 629 people on death row.

"This is the first time in 30 years the court has issued a ruling that automatically invalidates a state's overall mechanism for imposing the death penalty," said Michael Mello, a specialist in capital punishment law at Vermont Law School. In 1972, the Supreme Court struck down all state death penalty laws but reauthorized capital punishment through court decisions in 1976.

Yesterday's ruling in Ring v. Arizona, No. 01-488, was perhaps the most dramatic consequence yet of a landmark 2000 case in which the court roiled the criminal justice system by holding that a jury, not a judge, must find beyond a reasonable doubt any fact that would increase the jail time a defendant faces for a crime.

Justice Ruth Bader Ginsburg wrote for the court yesterday that in view of that ruling -- known as Apprendi -- the right to a jury trial "would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death."

The court acknowledged that it was repudiating its 1990 decision upholding Arizona's death penalty law -- the kind of about-face the court tries to avoid lest it undermine confidence in the law. But, Ginsburg wrote, that 12-year-old ruling was no longer viable in light of Apprendi.

It was the second time in as many weeks that the court had changed its position on a major issue affecting capital punishment. Last week, the court banned executing the mildly mentally retarded, which the court had conditionally approved in 1989.

As in the mental retardation case, the immediate impact of yesterday's ruling will be more litigation, as death row inmates in the affected states scramble to get their sentences reduced to life imprisonment.

That was precisely what concerned the two dissenting justices in the case, Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor -- who also happen to be the court's two Arizonans. O'Connor was a prosecutor and judge in the state.

Both opposed Apprendi, and O'Connor's dissenting opinion yesterday, which Rehnquist joined, depicted the new ruling as more proof of Apprendi's "severely destabilizing effect on the criminal justice system."

Noting that Apprendi has spawned thousands of criminal appeals, "overwhelm[ing]" the courts, including the Supreme Court, O'Connor said the decision "is only going to add to these already serious effects."

O'Connor predicted, however, that most death row inmates who fight their sentences based on yesterday's ruling will lose.

But that could depend on how lower courts and, perhaps, the justices themselves decide the highly technical question of whether the ruling creates such a fundamental shift in constitutional rights that prisoners who have exhausted previous appeals should get a chance to take advantage of it.

"Every murderer on death row [in the five states] will attack his sentence," said Kent Scheidegger, legal director of the Sacramento-based Criminal Justice Legal Foundation, which supports capital punishment. "I would expect that [procedural rules] will bar claims by those who have already finished under direct appeal. But that could be a Supreme Court case all by itself."

"At a minimum," law professor Mello said, "what the Supreme Court did today is to buy everyone on death row in these five states another 7.5 years of life. That's the average length of time it takes to go from imposition of a death sentence to execution."

The focus shifts to Florida, where there are 383 prisoners on death row, and Alabama, where there are 187 death row inmates.

In those states, juries make findings about aggravating factors and then recommend a sentence, death or life imprisonment, to the judge. Their recommendation does not have to be unanimous and, in some cases, judges in Alabama and Florida have overridden jury recommendations of life, imposing death instead.

While the Ring case was pending, the Supreme Court granted stays of execution to two Florida death row inmates and one Alabama death row inmate who are pressing Apprendi-based challenges to the sentencing laws in those states.

The court is likely to act on those appeals, perhaps by sending them back to the lower courts in light of the new ruling, legal analysts said.

While the court steered clear of any direct discussion of these states' laws yesterday, even supporters of the death penalty said they could be in jeopardy.

"Florida and Alabama have a difficult argument to maintain the present system," Scheidegger said.

The court's ruling yesterday cut across ideological lines, producing a series of separate concurring opinions in which justices candidly explained their own shifting views.

Justice Antonin Scalia, who supported Apprendi but not the line of cases since 1972 in which the court has tried to regulate state death penalty procedures, admitted that he faced "a difficult choice."

Scalia joined the majority, he wrote, because the increasing use of judge-determined "sentencing factors" by the states and federal government "cause me to believe that our people's traditional belief in the right of trial by jury is in perilous decline."

Possibly looking ahead to a Florida or Alabama case, however, Scalia indicated that he would have no problem if a state leaves "the ultimate life-or-death decision to the judge" as long as it required "a prior jury finding of aggravating factor[s]" in the trial or a sentencing hearing. Justice Clarence Thomas joined him in this view.

Justice Anthony M. Kennedy noted that he opposed Apprendi, but that "it is now the law," and as such cannot be reconciled with Arizona's law.

Justice Stephen G. Breyer, another Apprendi opponent, said he reached the same conclusions as the justices in the majority -- John Paul Stevens, Scalia, Kennedy, David H. Souter, Thomas and Ginsburg -- but for different reasons.

Citing court opinions, law-review articles and social science reports casting doubt on both the efficacy and fairness of the death penalty, Breyer argued that a death sentence by anyone other than a jury would constitute "cruel and unusual punishment" because it deprives the defendant of important protections against a wrongful sentence.

Noting that he had voted differently in past cases, Breyer attributed his new view to growing concerns about poor lawyering for capital defendants, convictions of innocent people and racial bias in sentencing. Those concerns, he said, are widely shared by the public and thus best factored into sentencing decisions by representatives of the community.

Yesterday's case began in 1996, when Timothy Ring was convicted of first-degree murder for shooting to death John Magoch, an armored car driver.

There were two accomplices in the robbery that led to Magoch's murder, but neither testified at Ring's jury trial. At the sentencing hearing, one accomplice testified that Ring was the "leader" and had taken joy in killing Magoch. Based largely on this testimony, the judge determined that Ring should be executed.

There are about 3,700 convicted murderers on death rows around the country. In 29 of the 38 death penalty states, the jury determines the defendant's fate.

2002 The Washington Post Company

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