Capital punishment; justices say death penalty is up to juries, not judges
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. [Excerpts, Page A20.] 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.
In contrast to Justice Breyer, the other three Apprendi dissenters drew in the Harris decision today what they described as a logical distinction between the Apprendi ruling and the mandatory minimum situation.
As long as a judicially imposed mandatory minimum fell within the sentencing range set by the legislature, it did not raise constitutional problems, Justice Kennedy said in his opinion, which was also joined by Justice Antonin Scalia.
”Within the range authorized by the jury’s verdict,” Justice Kennedy said, ”the political system may channel judicial discretion — and rely upon judicial expertise — by requiring defendants to serve minimum terms after judges make certain factual findings.”
He added, ”It is critical not to abandon that understanding at this late date.”
The dissenters in the Harris case today were Justices Stevens, Ginsburg, David H. Souter, and Clarence Thomas — the four who, with Justice Scalia, had made up the majority in the Apprendi decision. Justice Thomas spoke for the four dissenters, saying the decision today ”rests on either a misunderstanding or a rejection of the very principles that animated Apprendi just two years ago.”
”It is true that Apprendi concerned a fact that increased the penalty for a crime beyond the prescribed statutory maximum,” Justice Thomas continued, ”but the principles upon which it relied apply with equal force to those facts that expose the defendant to a higher mandatory minimum.”
He added, ”Such fine distinctions with regard to vital constitutional liberties cannot withstand close scrutiny.”
The Harris decision upheld a ruling by the United States Court of Appeals for the Fourth Circuit, in Richmond, Va.
That court rejected an appeal by William J. Harris, whose sentence under a federal firearms law was increased from five years to a mandatory minimum of seven years on the basis of a judge’s finding that he had not simply carried a gun but had ”brandished it.”
The death penalty case today overturned a ruling by the Arizona Supreme Court. The defendant, Timothy S. Ring, was convicted of a murder committed during the armed robbery of a Wells Fargo armored van driver in 1994.
Under Arizona law, he could not be sentenced to death unless, after the conviction, the judge made specific factual findings on aggravating circumstances.
The judge did so, based on testimony by a co-defendant at the sentencing hearing that Mr. Ring had been the triggerman. The jury had not heard this testimony.
Arizona argued that the death sentence was simply the top end of the sentencing range. But in her opinion today, Justice Ginsburg said that was a purely formalistic argument. The logic of the Apprendi decision, she said, dictated its application to the death sentence context.
”The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the fact-finding necessary to increase a defendant’s sentence by two years, but not the fact-finding necessary to put him to death,” she said.
Justice Breyer supported the result but not the analysis. In a separate concurring opinion, he said that regardless of Apprendi, the Constitution required jury sentencing in capital cases because only a jury could ”translate a community’s sense of capital punishment’s appropriateness in a particular case.” Autor: Linda Greenhouse