Judges and Judiciary
Mar. 25, 2004
'Summerlin' Will Let Court Overturn Unconstitutional Sentences
Forum Column - By Carlos A. Singer - Before the law reduced the case of Summerlin v. Stewart, 341 F.3d 1082 (9th Cir. 2003) (en banc), to an inquiry about retroactivity, there was Warren Wesley Summerlin and a bizarre collection of facts that would rival any television legal drama. An anonymous tip based on ESP led to his arrest for a brutal murder, his defense counsel slept with his prosecutor while his case was pending, and the judge might have been high when he sentenced Summerlin to death.
By Carlos A. Singer
Before the law reduced the case of Summerlin v. Stewart, 341 F.3d 1082 (9th Cir. 2003) (en banc), to an inquiry about retroactivity, there was Warren Wesley Summerlin and a bizarre collection of facts that would rival any television legal drama. An anonymous tip based on ESP led to his arrest for a brutal murder, his defense counsel slept with his prosecutor while his case was pending, and the sentencing judge might have been high when he sentenced Summerlin to death. The story of Summerlin, who remains in prison but no longer on death row, will surely inspire a teledrama or two, but while the 9th U.S. Circuit Court of Appeal was right to remove him from death row, it should have done more. On April 19, the Supreme Court will have the opportunity to do so, when it hears oral arguments in the appeal from the 9th Circuit.
The Summerlin case was among the first to apply the Supreme Court decision in Ring v. Arizona, 536 U.S. 584 (2002). Ring held that juries rather than judges must determine facts that expose defendants to the death penalty. The central issue in Summerlin was whether the Supreme Court's ruling applied retroactively to cases on federal habeas review. The court answered the question in the affirmative. But one strain of its logic should have led the court to conclude further that an earlier three-judge panel decision, which denied the retroactivity of another Supreme Court rule, was wrongly decided. In United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002), a three-judge panel of the 9th Circuit held that Apprendi v. New Jersey, 530 U.S. 466 (2000), was not retroactively applicable to cases on federal habeas review. Apprendi held that juries, not judges, must determine beyond a reasonable doubt any fact (other than the fact of a prior conviction) that increases the maximum penalty to which a defendant is exposed.
Although the 9th Circuit in Summerlin correctly concluded that the Ring rule - substantially the Apprendi rule in the capital context - was a "watershed" rule of criminal procedure sufficient to apply it retroactively, the court stopped short of questioning its Sanchez-Cervantes decision.
Instead, the Summerlin court attempted to distinguish the holdings rather than fix the contradiction. Summerlin reasoned that, because Ring involves capital sentences, the Eighth Amendment requires that capital habeas petitioners be specially able to vindicate their Sixth Amendment right to trial by jury. But had the 9th Circuit adhered completely to its characterization of Ring as a retroactive rule, it would have at least cast doubt over its earlier holding that Apprendi was not retroactive. One possible explanation for its failure to consummate its own reasoning is that the court centered its decision too closely on the capital context of the case, an almost-understandable error given the sensational fact pattern.
The facts of Summerlin are sexy, but the main legal issue on appeal was decidedly not. The 9th Circuit had to decide whether Ring would apply retroactively to habeas cases. If it does, Summerlin's death sentence would have to be vacated, because the judge - not the jury - found that Summerlin committed the crime heinously, a finding that exposed him to capital punishment. The retroactivity law relevant to Summerlin's habeas petition explains that petitioners generally may not benefit from new procedural rules on collateral review. Like most legal rules, though, there are exceptions. One of those exceptions is for "watershed" rules that are "implicit in the concept of ordered liberty." The Summerlin court held that Ring was retroactive in part because it announced just such a "watershed" rule. Because this was a capital case, the court reasoned that the Eighth Amendment required the court in this instance to pay "heightened attention" to jury reliability and the broad effect of Ring.
But in affirming the watershed effect of Ring, the court also weakened the (very similar) rule in Apprendi by declining to overturn an earlier decision. At issue in Sanchez-Cervantes was whether Apprendi was retroactively applicable to habeas cases. Rather than reconsider its holding in Sanchez-Cervantes that Apprendi did not effect a watershed rule, the 9th Circuit emphasized that Ring dealt with capital punishment. Founding its decision on the axiom that "death is different," the court implied that, because Apprendi did not involve capital punishment, it did not announce a "watershed" rule.
However, the 9th Circuit's reasoning that Ring announced a watershed rule applies with equal force to the rule of Apprendi. Both Ring and Apprendi vindicate the Sixth Amendment right to jury trials. The Summerlin Court itself recognized that "although Eighth Amendment concerns are implicated in Ring, the bedrock procedural element at issue is the provision of the Sixth Amendment right to a jury trial."
Even embracing Summerlin's holding that the Eighth Amendment requires heightened scrutiny in this case, it does not stand to reason that the same amendment does not require at least a substantial degree of attention in the noncapital context. The "death is different" principle, which courts have justifiably applied in limited circumstances, does not sustain the proposition that jury fact-finding is critical only in cases that involve the death penalty. The amendment guarantees a modicum of fairness; bail, fines and punishment must remain within reasonable bounds. Sentences that stretch beyond what is constitutionally permissible must violate the amendment, even if not as strikingly as would be the case with a death sentence.
One question Summerlin poses is whether the 9th Circuit should have been moved more by the extreme facts and capital implications of the case or by its own logic. Certainly, there are times when courts should pay more attention to facts and people than they do to an outdated legal doctrine.
But in Summerlin, when the legal premises on which the court based its conclusions logically extend to noncapital crimes, perhaps the court should not have focused so keenly on the factual context.
The danger of protecting defendants' rights in only outrageous settings is that the same rights might not be guarded in relatively mundane circumstances.
For example, were Summerlin's story more similar to Sanchez-Cervantes', the death penalty would not have entered the picture. The facts of Sanchez-Cervantes' case were not particularly arresting, and his drug-crime conviction did not involve a choice between life and death. Rather, the choice was between 240 months' imprisonment and 295 months' imprisonment, depending on the amount of drugs involved. But the constitutional violation he sustained was no different from the violation in Summerlin's case. The judge, rather than the jury, made a (drug-quantity) finding that exposed Sanchez-Cervantes to a higher sentence than that authorized by the jury verdict. Thus, the sentence violated the Sixth Amendment under Apprendi.
Surely, 55 extra months is not as severe as death. However, although capital punishment is immeasurably more severe than imprisonment, to allow any constitutionally infirm sentence to stand is a proposition too macabre for a free society.
It would be difficult to argue with the notion that "death is different." It is -unmistakably. But acknowledging a difference between unconstitutional capital punishment and unconstitutional imprisonment does not conflict with the logic that guides both the Apprendi and Ring decisions. Given the specter of capital punishment and the peculiar factual scenario of the Summerlin case, it must have been tempting to consider the case unique. The dissenting judges in Summerlin see the similarity between Ring and Apprendi as a reason to hold that the Ring rule is not retroactive. But the stronger argument goes the other way. As Judge Stephen Reinhardt wrote in his concurrence in Summerlin, it would be "unthinkable" to allow a person whose death sentence rests on an unconstitutional basis to be put to death. However, it is also unthinkable for courts to sit idly by while potentially thousands of constitutionally unsound prison sentences drift on. Had the 9th Circuit completed its own reasoning, it would have at least questioned, if not outright overruled, its decision in Sanchez-Cervantes. At the Summerlin oral argument in a few weeks, we may receive some indication whether unconstitutional sentences of any sort are acceptable to our current Supreme Court.
Carlos A. Singer, a former 9th Circuit law clerk, lives in Los Angeles.
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