Only juries can impose death penalty, Supreme Court rules

June 24, 2002 

WASHINGTON - The Supreme Court Monday ruled 7-2 that it is unconstitutional for judges rather than juries to make findings of fact that result in a person being sentenced to death.

 The ruling is likely to require reconsideration of the death penalties of more than 100 death row inmates in five states where judges may have made such findings of fact, legal analysts said.

 "What today's decision says is that the jury must find the existence of the fact that an aggravating factor existed," Justice Antonin Scalia said in a concurring opinion. Aggravating factors are those related to a crime that legally justify the imposition of a more severe penalty.

 "Those states that leave the ultimate life-or-death decision to the judge may continue to do so -- by requiring a prior jury finding of an aggravating factor in the sentencing phase or, more simply, by placing the aggravating factor determination (where it logically belongs anyway) in the guilt phase," Scalia said.

Ruling in a case from Arizona, the Supreme Court majority declared it is a violation of the right to trial by jury for a judge to impose a death sentence unless the jury has determined that factors exist justifying such a sentence.

 Justice Ruth Bader Ginsburg delivered the opinion, which attracted the support of the court's most liberal and most conservative justices. 

"Arizona presents no specific reasons for excepting capital defendants from the constitutional protections extended to defendants generally, and none is readily apparent," Ginsburg wrote.

 Only Chief Justice William Rehnquist and Justice Sandra Day O'Connor dissented.

 The case involved Timothy Ring, who was found guilty by a jury of first-degree murder in the death of the driver of an armored van in 1994 in Maricopa County, Arizona.

 The death sentences for Ring and at least 125 other condemned Arizona prisoners are now on hold. Death sentences in Montana and Idaho, where a single judge alone imposes the penalty, will also have to be reviewed.

 In Colorado and Nebraska, where the decisions are made by three-judge panels, death sentences will be on hold until authorities decide whether to re-sentence the death row inmates.

 It is unclear from the Supreme Court ruling whether Florida, Alabama, Indiana and Delaware will be affected because in those states juries give judges advisory verdicts, which in certain circumstances judges may reject.

Justices Say Death Penalty Is Up to Juries, Not Judges

By LINDA GREENHOUSE

WASHINGTON, June 24 � Juries rather than judges must make the crucial factual determinations that subject a convicted murderer to the death penalty, the Supreme Court ruled today in a decision that invalidated the death penalty laws of five states and cast doubt on the laws of four others.

 Nearly 800 people are on death row in the nine states where judges ultimately determine sentences, with or without a jury's advisory opinion. While inmates whose appeals have been exhausted face high procedural obstacles to benefiting from the new ruling, dozens, at least, will be entitled to resentencing as a result of the court's 7-to-2 decision.

In addition, state legislatures will need to redraft laws that were explicitly or presumptively constitutional under Supreme Court precedents before the justices took a sharp new turn on the respective roles of judge and jury in criminal sentencing two years ago in Apprendi v. New Jersey.

 Ring v. Arizona, No. 01-488, was the case the court decided today in an opinion by Justice Ruth Bader Ginsburg over dissenting votes by Justice Sandra Day O'Connor and Chief Justice William H. Rehnquist. In Arizona, judges determine the existence of the "aggravating factors" that separate murderers eligible for death sentences from those who are not.

 Colorado, Idaho, Montana and Nebraska have the same sentencing approach. In four other states, Alabama, Delaware, Florida and Indiana, the jury presents an advisory verdict but the judge makes the final sentencing decision.

 The decision today will also require a change in the federal death penalty law. While juries determine the existence of aggravating factors under the federal law, those factors are not charged in the indictment, as they must be under the ruling today. The Supreme Court is likely to vacate an appeals court decision upholding the death sentence of one federal prisoner, Billie J. Allen, whose appeal, Allen v. United States, No. 01-7310, has been before the court since last October.

 Coming four days after a major ruling that abolished the death penalty for mentally retarded offenders, the decision today gave the appearance of a new Supreme Court momentum against the death penalty. But that was only an appearance. The decision assumed the validity of capital punishment in general as well as the death penalty laws of 29 states that already conform to the requirement the court set today.

 The ruling was, instead, the result of the justices' confrontation with the implications of its decision in Apprendi v. New Jersey. In the context of a New Jersey hate-crime statute that imposed a higher sentence if a judge found that a crime was committed with a biased motive, the Apprendi decision held that any factor that led to a sentence higher than the statutory maximum must be charged in the indictment and found beyond a reasonable doubt by the jury.

 The court held that in the Arizona case the maximum sentence under the statute was life in prison, with additional findings by a judge required to make a defendant eligible for the death penalty.

 The Apprendi decision was based on the Sixth Amendment right to trial by jury. Although the majority opinion in that case, by Justice John Paul Stevens, disavowed any impact on the court's precedents upholding sentencing by judges in death penalty cases, a dissenting opinion by Justice O'Connor warned that the Arizona death penalty law could not survive application of the principle the majority had embraced.

 In her dissenting opinion today, Justice O'Connor agreed that the Apprendi decision and the Arizona law were irreconcilable, but said the preferred course would be to preserve the Arizona law and overrule Apprendi, which she said "had a severely destabilizing effect on our criminal justice system."

 Besides raising questions about the death penalty laws in nine states, the Apprendi decision raised a question about the growing use of mandatory minimum sentences higher than the normal minimums. At issue was whether the same Sixth Amendment principle applied to factors like the quantity of illegal drugs or the use of a gun that required higher minimum sentences. Could judges continue to make the factual findings on such aggravating circumstances?

 The court rejected that potential extension of the Apprendi decision in a second ruling today that, in practical effect on the criminal justice system, applied more broadly than the death penalty ruling.

 By a vote of 5 to 4, the court held that as long as the judge imposed a sentence that was within the statutory range, the defendant's right to trial by jury was not compromised even if the judge determined the facts that led to the higher minimum sentence.

 This decision, Harris v. United States, No. 00-10666, removed doubts that had lingered since the Apprendi decision about the constitutionality of the federal sentencing guidelines, under which judges make factual determinations that move defendants up or down the range provided by the guidelines. The decision was also a strong indication that the Apprendi principle would be extended no further.

 Justice Stephen G. Breyer, an author and leading interpreter of the sentencing guidelines, provided the fifth vote for the court's judgment in the Harris case, although he did not join the analysis of Justice Anthony M. Kennedy's majority opinion.

 "I cannot easily distinguish Apprendi v. New Jersey from this case in terms of logic," Justice Breyer said.

 Nonetheless, he said, he would agree not to apply Apprendi to mandatory minimum sentences because such an application "would have adverse practical, as well as legal, consequences."

 As a practical matter, he said, "application of Apprendi would take from the judge the power to make a factual determination, while giving that power not to juries, but to prosecutors."

 Justice Breyer added, "And such consequences, when viewed through the prism of an open, fair sentencing system, are seriously adverse."

 Justice Breyer was a dissenter from the Apprendi decision, as were Justices Kennedy and O'Connor and Chief Justice Rehnquist.

Another Death Penalty Ruling

Only four days after its landmark ruling barring the execution of retarded people, the Supreme Court announced another big change yesterday in the application of the death penalty. A 7-to-2 majority declared that a jury, not a judge, must make the factual determination about the existence of "aggravating factors'' that make a convicted murderer eligible for the death penalty.

 It would be wishful thinking to attribute the new ruling to mounting anti-death-penalty fervor on the court. While some justices have signaled their discomfort with aspects of the death penalty's administration, yesterday's decision, like the momentous one last week, assumed the constitutional validity of capital punishment as a general matter. For the moment, at least, it is up to individual states, and to Congress, to respond to the increasing public doubts about whether the death penalty can ever be applied justly and evenly.

 Instead, the court yesterday was simply but wisely extending its bold holding of two years ago that the constitutional right to a trial by jury extends to findings of fact, if those facts lead to a higher sentence than the statutory minimum. As Justice Ruth Bader Ginsburg wrote in the majority opinion, it would be senseless to give that protection to a defendant facing a few extra years in prison, but not to a defendant facing the death penalty. Supporting the result was an unusual alliance of conservative- and liberal-leaning justices that included Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy, John Paul Stevens, David Souter and Stephen Breyer.

 In all, there are about 800 prisoners on death row in the nine states in which judges make the final sentencing determinations, with or without a jury's input. But given various procedural obstacles, it remains to be seen how many of them will be entitled to resentencing as a result of the ruling.

 Unfortunately, the court declined to extend the courage of its convictions to another case of potentially greater practical impact. In a separate 5-to-4 ruling yesterday, the court refused to find that a defendant's right to trial by jury is compromised when a judge, rather than a jury, makes a factual finding involving, for example, gun use that triggers a mandatory minimum sentence. The court's definitional games, while creative, could not disguise the obvious jurisprudential inconsistency. 

NEWS ANALYSIS

Fewer Death Sentences Likely if Juries Make Ultimate Decision, Experts Say

By ADAM LIPTAK

 Wewer prisoners may be executed as a result of the Supreme Court decision yesterday requiring that juries, not judges, make the factual determinations supporting death sentences, experts said.

 James S. Liebman, a law professor at Columbia University, said, "There is quite general agreement that over time and over geography, the likelihood of getting a death sentence is greater from a judge than from a jury."

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 This is clearest in those states, like Alabama and Florida, where juries give advisory verdicts but judges make the ultimate decision, said Ronald J. Tabak, the co-chairman of an American Bar Association committee on the death penalty. The case decided yesterday came from Arizona, where juries played no role in the death penalty decision.

 "Far, far, far more often when the judges override the jury, it is in order to impose the death penalty when the jury has recommended life," Mr. Tabak said, "and it's even more likely when the judge is up for election."

 Stephen B. Bright of the Southern Center for Human Rights has collected statistics from Alabama. "You have 83 overrides from life to death," he said, "and only 7 from death to life."

 Professor Liebman said that "about a quarter of the death row in Alabama is made up of people whom juries sentenced to life in prison but judges sentenced to death."

 Mr. Tabak said that proponents of the legislation giving judges the death penalty decision in Florida and Alabama were surprised by these trends. "They thought they were protecting defendants against inflamed juries," he said.

 Professor Liebman attributed the trends mostly to the nature of judges' work. Judges sentence people for a living, he said, and they can become inured "to the enormity of what they're doing because they're doing it every day."

 A second factor, he said, is that some elected judges may feel that they cannot afford to be seen as soft on the death penalty, even with the political cover afforded by a jury's advisory verdict.

 In Delaware, the only state with both an advisory verdict system and appointed judges, judges have overridden seven jury recommendations, all from death to life.

 The decision yesterday did not apply directly to states with advisory verdicts, and it is not clear how broad its impact will be in those states or even in states like Arizona, where judges made death sentence decisions without juries.

 Kent Cattani, chief counsel of the death penalty appeals unit in the Arizona attorney general's office, said about 130 people are on death row there. Only 30 of them have not yet exhausted their direct appeals from their convictions.

 "They will be entitled to a resentencing," he said of the smaller group, "and the Legislature will have to come up with a mechanism to figure out how resentencing will work."

 Janet Napolitano, Arizona's attorney general, yesterday asked prosecutors and judges to suspend all sentencings in death penalty cases until the Legislature can amend state laws to comply with the decision. She asked Gov. Jane Dee Hull to convene a special session of the Legislature to do that.

 The remaining 100 death row inmates in Arizona are not entitled to be resentenced, Mr. Cattani said.

 "Nothing in the opinion or the dissent suggests that it applies retroactively," he said. "For a new rule to apply retroactively, it has to go to fundamental fairness."

 A 1989 Supreme Court decision held that new procedural rules in criminal cases should be applied retroactively only if they represent fundamental changes in bedrock principles of fairness.

 The death sentences imposed in earlier cases were not unfair, Mr. Cattani said, because "judge sentencing is more reliable than jury sentencing" and because only 12 years ago the Supreme Court itself upheld the sentencing scheme it struck down yesterday.

 But Dale A. Baich, a federal public defender in Arizona, disagreed.

 "It would be patently unfair and arbitrary to allow resentencing in some cases but not in others," he said. Yesterday's decision "is based on bedrock constitutional principles, and those principles apply in all cases."

 There are about 40 other prisoners on death row in four other states that have systems similar to Arizona's. Those states are Colorado, Idaho, Montana and Nebraska.

 In four other states, Alabama, Florida, Delaware and Indiana, juries render advisory verdicts, but judges make the ultimate decision. There are another 530 prisoners on death row in those states. Indiana shifts to a jury-only system on July 1.

 All of the so-called hybrid states are also operating unconstitutional systems, said Lawrence Marshall, a law professor at Northwestern University. "If it's an issue of trial by jury," he said, "it's a right to decision by jury, not advice by jury.

 Still, the clearest application of yesterday's decision in these states will be in cases where the jury has called for a life sentence and the judge overrode the recommendation in favor of a death sentence.

 "It gives the defendant a pretty good argument that this may be even more of a case of judge-only sentencing than in Arizona," said David Barber, the district attorney in Birmingham.

 Alabama's attorney general, Bill Pryor, was more sanguine.

 "Contrary to Arizona's capital sentencing scheme," he said in a statement, "a jury in Alabama is presented with the facts in the sentencing phase and reaches its own finding that makes it possible for the judge to sentence a defendant to death."

 Whether defendants who were sentenced to death by judges in accord with a jury's advisory verdict are entitled to resentencing is more difficult, Professor Liebman said.

 "It will depend on the specifics of the statutes, the jury instructions and the jury findings in each case," he said.

 Linda Greenhouse answers readers' questions on Supreme Court rules and procedure in a column available only on NYTimes.com. E-mail Ms. Greenhouse a question at [email protected]. Please include your name, address and daytime telephone number; upon request names may be withheld.

Court Overturns 168 Death Sentences

By ANNE GEARAN

 June 24, 2002

 WASHINGTON -- Juries, not judges, must make the crucial decisions that mean a convicted killer lives or dies, the Supreme Court ruled Monday, a finding that could overturn scores of death sentences nationwide.

 The ruling capped a court term that death penalty opponents called the most promising in a quarter-century.

The high court declared the sentencing laws of five states unconstitutional. The ruling called into question whether 168 death row inmates in those states will be put to death, and it also could affect some inmates sentenced in four other states, lawyers said.

 The 7-2 ruling affects systems in which judges have the final say after a jury convicts someone of murder.

 The Constitution guarantees a trial by a jury, and that right would be "senselessly diminished" if jurors did not also weigh whether a particular killing merits death or life in prison, Justice Ruth Bader Ginsburg wrote for an unlikely alliance of conservative and liberal-leaning justices.

 The court rejected arguments from Arizona, where Monday's case originated, that judges can be more evenhanded and less emotional than juries.

 "The Sixth Amendment jury trial right ... does not turn on the relative rationality, fairness or efficiency of potential fact-finders," Ginsburg wrote for herself and Justices John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, David H. Souter and Clarence Thomas. Justice Stephen Breyer wrote separately to agree with the outcome.

 Neither this case nor last week's ruling exempting mentally retarded people from the death penalty directly attacks the constitutionality of capital punishment for the general population.

 Still, these and other rulings this term questioned the way states carry out the death penalty, and may open the door for wider examination of the practice, lawyers and death penalty opponents said.

 "When you take last week's ruling and this one combined, this is the most favorable Supreme Court term in a quarter century," for those who want to see the practice ended, said David Elliot, spokesman for the National Coalition to Abolish the Death Penalty.

 The Supreme Court allowed states to resume executions in 1976 after a brief national hiatus.

 Nationwide, about 3,700 inmates await execution in the 38 states that allow capital punishment.

 In Arizona, Idaho, Montana, Colorado and Nebraska, a jury determines guilt or innocence, but one or more judges then evaluates whether the particulars of the case make it worthy of the death penalty -- for example, if a murder was especially atrocious or if it was committed for money.

 The Death Penalty Information Center, which compiles statistics on capital punishment, calculated that since 1976, those five states have executed 29 people under laws allowing nonjury sentencing. The group is officially neutral although many of its leaders oppose the death penalty.

 It was not immediately clear what will happen to current inmates in those states or how many may ultimately be resentenced. Some could receive death sentences all over again.

 Authorities in some of the states affected by Monday's case said the ruling is not retroactive and does not automatically apply to all their death row inmates.

 Elliott's group and some lawyers disagreed.

 In any event, lawyers said, the sentences are sure to be challenged as unconstitutional because the state law that allowed them was invalidated.

 In dissent, Justice Sandra Day O'Connor predicted many challenges will fail.

 "Nonetheless, the need to evaluate these claims will greatly burden the courts in these five states," and perhaps in four others where juries recommend a sentence but the judge makes the final call, O'Connor wrote for herself and Chief Justice William H. Rehnquist.

 Had the court expressly extended its reasoning to include Florida, Alabama, Indiana, and Delaware, the case could have affected nearly 800 death row inmates.

 "I'm hopeful that it will call into question at least those three men on Indiana's death row whose juries unanimously recommended that they not receive the death penalty," but a judge applied that punishment anyway, said Steve Schutte, deputy to the Indiana public defender.

 Arizona has 129 people on death row, Idaho 21 and Montana six. Colorado has five, and Nebraska seven. Florida has 383, Alabama 187, Indiana 39 and Delaware 20.

 Indiana recently passed a law that will require judges to follow a jury's sentencing recommendations starting next month.

 Monday's case was a ripple effect from a 2000 ruling in which the high court struck down a state law allowing a judge to lengthen a prison term if he or she ruled the offense a hate crime. A jury should look at such aggravating factors, the court said then.

 The same kind of fact-finding that the court struck down in the earlier case, Apprendi v. New Jersey, is at issue now, Ginsburg wrote.

 "We hold that the Sixth Amendment secures to capital defendants, no less than to noncapital defendants, the right to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment," Ginsburg said in announcing Monday's decision from the bench.

 The ruling seemed at odds with another high court decision Monday that upheld longer sentences in cases where facts not before a jury are used to raise the mandatory minimum sentence a defendant could receive.

 Ginsburg, in the minority in the second case, noted that other justices drew a distinction between cases in which a judge increases the maximum punishment, and cases in which judges use similar facts to establish a mandatory minimum sentence.

 The case put the court in a delicate position. A majority upheld Arizona's sentencing law in 1990, 10 years before Apprendi. Monday's ruling reverses the 1990 case.

 The case is Ring v. Arizona, 01-488.