U.S. Supreme Court
Jul. 4, 2002
Ultimate Sanction
Forum Column - By Erwin Chemerinsky - In Ring v. Arizona , 2002 DJDAR 7047 (U.S. June 24, 2002), the Supreme Court held that the jury, not the judge, must make the decision to impose the death penalty. The court was correct in protecting the fundamental role for the jury in the criminal justice system. If there is going to be a death penalty, then it should be the jury that makes the fundamental choice as to whether a person should die.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
In Ring v. Arizona, 2002 DJDAR 7047 (U.S. June 24, 2002), the Supreme Court held that the jury, not the judge, must make the decision to impose the death penalty. The court was correct in protecting the fundamental role for the jury in the criminal justice system. If there is going to be a death penalty, then it should be the jury that makes the fundamental choice as to whether a person should die. More generally, Ring is likely to be important in its recognition that death penalty cases must be treated differently than others in the criminal justice system.
The court's decision in Ring is an extension and application of its ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000), two years ago. In Apprendi, the Supreme Court held that any factor, other than a prior conviction, that leads to a sentence greater than the statutory maximum must be proven beyond a reasonable doubt to the jury.
In December 1991, Charles Apprendi fired several shots into the home of an African-American family that had recently moved into a previously all-white neighborhood. Apprendi was quickly arrested and told police that he had done this "because they are black in color" and he did not want them in the neighborhood.
Apprendi ultimately plead guilty to second-degree possession of a firearm for an unlawful purpose. Under New Jersey law, the penalty for this offense is a sentence of five to 10 years in prison. Additionally, under the terms of the plea agreement, the state reserved the right to ask the judge to impose a greater sentence under the New Jersey hate-crime law. New Jersey, like many states, including California, has a statute that provides for greater penalties when it is proved that a crime is hate-motivated.
The trial judge sentenced Apprendi to the maximum sentence of 10 years in prison for possession of a firearm for unlawful purposes. Although Apprendi recanted his statement to the police about his reasons for the shooting and said that it was not accurately described, the judge found, by a preponderance of the evidence, "that the crime was motivated by racial bias." The judge imposed an additional two years of imprisonment based on the New Jersey hate-crime law.
The issue before the Supreme Court was whether the penalty enhancement requires proof, to a jury, beyond a reasonable doubt. More precisely, the question for the court was whether such a penalty enhancement should be regarded as a sentencing factor, which can be proven by a preponderance of the evidence to the judge, or as an element of the offense, which must be proven to a jury beyond a reasonable doubt.
In a 5-4 decision, the Supreme Court took the latter view. In an unusual division among the justices, Justice John Paul Stevens wrote the opinion for the court, which was joined by Justices Antonin Scalia, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg.
The court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt."
The court stated, quoting a concurring opinion from Stevens a year before, "It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt" (quoting Jones v. United States, 526 U.S. 227 (1998) (Stevens, J., concurring)).
In Ring, the Supreme Court, in a 7-2 decision, applied Apprendi to capital cases and held that it must be the jury that finds aggravating factors sufficient to warrant imposition of the death penalty. Timothy Ring had been convicted of murder, armed robbery and related charges. Under Arizona law, the judge found sufficient aggravating factors and imposed the death penalty.
The Supreme Court held that it violated the Sixth Amendment for the judge, rather than the jury, to make this determination. Ginsburg, writing for the court, explained that the required finding of an aggravated circumstance, in order for the death penalty to be imposed, leads to an obviously greater punishment than the guilty verdict itself. The court thus concluded that under the logic and requirements of Apprendi, it must be the jury, not the judge, who makes this determination.
The court overruled its earlier decision in Walton v. Arizona, 497 U.S. 639 (1990), which allowed the judge to make the choice as to whether to impose a death sentence.
For many reasons, the Supreme Court's decision was correct. First, the court protects the fundamental role for the jury in the most important decision that the legal system can face: whether to put a person to death. As Ginsburg explained, "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."
The vast majority of states that allow the death penalty already have the jury make this decision. Of the 38 states with the death penalty, 29 have the jury decide whether to impose capital punishment. Other than Arizona, only four states leave both capital-sentencing fact-finding and the ultimate sentencing decision entirely to the judge. Four states have systems in which the jury renders an advisory verdict, but the judge makes the ultimate sentencing determination. Ring now requires that all states have the jury decide whether to impose a death sentence.
Some object that the jury is more likely to be irrational or swayed by emotion than a judge. But the Sixth Amendment right to trial by jury is founded on the assumption of trust in the jury. As the court correctly observed, that right does not depend on the relative rationality, fairness or efficiency of potential fact-finders.
Also, the Supreme Court now should reconsider earlier decisions that allow juries to be "death qualified" and jurors opposed to the death penalty to be excluded. This inevitably leads to juries that are biased in favor of death sentences.
Second, the decision rests on the court properly recognizing that death is different within the criminal justice system. In essence, the Ring court held that a crime where aggravating factors are present is different from the same acts where such circumstances are not found. In other words, the presence of the aggravating factors, triggering the death penalty, make it a different crime. That determination, then, is properly one for the jury.
As Ginsburg explained, "Because Arizona's enumerated aggravating factors operate as 'the functional equivalent of an element of a greater offense,' the Sixth Amendment requires that they be found by a jury."
Ring does not mean a greater role for the jury in sentencing in noncapital cases. There is no indication that the Supreme Court will return to the practice common early in American history in which it was the jury that decided the punishment. Rather, Ring is based on the implicit recognition that death is different.
Indeed, in this way, it is quite consistent with the court's decision a few days earlier in Atkins v. Virginia, 2002 DJDAR 6937 (June 20, 2002), which held that the execution of the mentally retarded is cruel and unusual punishment in violation of the Eighth Amendment. Both cases profoundly recognize that death penalty cases, because of the ultimate and irreversible nature of the sanction, must be handled differently in the criminal justice system.
Indeed, Atkins and Ring, taken together, are important because they are the first significant limits imposed by the Supreme Court on the death penalty in many years. Hopefully, they are the beginning of a trend in which the Supreme Court will realize that there are serious flaws in our system of capital punishment, which lead to innocent people being sentenced to death and to the death penalty being administered in a racially discriminatory fashion. Ring is a crucial step in the court's implicit recognition that death is different in our legal system.
Erwin Chemerinsky is Sydney M. Irmas professor of public interest law, legal ethics and political science at the University of Southern California Law School.
Submit your own column for publication to Diana Bosetti
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390
Send a letter to the editor:
Email: letters@dailyjournal.com