Antonin Scalia's crisis of conscience

In a case that could free hundreds from death row, the conservative Supreme Court justice finds that his support for the rights of juries clashes with his staunch advocacy of the death penalty.

By Dave Lindorff

Published June 12, 2002 6:48PM (EDT)

As the 30th anniversary of the Supreme Court decision temporarily halting capital punishment approaches, the current high court is about to rule on a case that could conceivably spare as many people from the gallows as were released from death row with that last historic decision.

With little fanfare, on April 22 the nine justices heard a case, Ring vs. Arizona, in which the defendant claims that because a judge used evidence not presented at trial to justify sentencing him to death following his murder conviction, he should not be executed. His attorney argues that the Sixth Amendment of the U.S. Constitution, and a decision by the high court two years ago, require such a decision to be made by a jury, not simply by a judge.

If the court rules in Timothy Ring's favor, it could potentially affect some 800 cases -- more than one-fourth of the total number of prisoners currently on death row -- in the nine states in which judges either always make the fateful sentencing decision between life in prison or death, or in which they are permitted to override a jury and impose a death sentence. That's more people than were on death row at the time of the Furman vs. Georgia decision on June 29, 1972, which temporarily ended capital punishment in America. At the minimum, it will overturn the death sentences of dozens of Arizona inmates, and perhaps hundreds nationwide.

The court's decision is likely to hinge on conservative Justice Antonin Scalia. That's because Scalia wrote a strong concurring opinion in the precedent Ring's lawyers are using -- a New Jersey drug case known as Apprendi vs. New Jersey, in which the justices ruled 5-4 that any new information obtained or used by a judge after a trial, as grounds for increasing the sentence of a convict, must first be considered and approved by a jury. In supporting the Apprendi decision, Scalia wrote: "Judges, it is sometimes necessary to remind ourselves, are part of the state." He added, "The founders of the American republic were not prepared to leave [criminal justice] to the state, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights."

Scalia, a strict constructionist, now seems to be squirming a little, given that his staunch jury-rights decision may be used to free death row prisoners. When the Supreme Court heard arguments in the case in April, Scalia seemed to be trying to back away from his earlier position.

But even some conservatives say Scalia was right in Apprendi, and he should come down on the same side in the Ring case.

"It seems to me that Apprendi and the Sixth Amendment to the Constitution apply in the Ring case," says Charles Key, a former Republican state representative from Oklahoma who is now executive director of Common Sense Justice, a national campaign aimed at enhancing the right of citizens to challenge laws passed by legislatures and Congress. "A jury should have to determine the facts in the case." Key says even though Apprendi was not a death penalty case, if the law says juries should have access to all the evidence in noncapital sentencing decisions, "it makes no sense to give the government the power over taking a human life."

"The question for Justice Scalia is whether he will have the courage of his Apprendi convictions even though it will mean making what is for him an abhorrent result -- striking down Arizona's death penalty law," says Edward Lazarus, a former federal prosecutor now in private practice in Los Angeles who writes for FindLaw.

Amazingly, the dramatic Ring case has received little media attention -- and that's just fine with the plaintiff. In fact, Andrew Hurwitz, the Phoenix lawyer who argued Ring's case before the Supreme Court, asked the usual organizations that might have been expected to file friend-of-the-court briefs and to crank up their publicity machines to refrain from joining his effort. He apparently didn't want the justices who are considering the case to be bombarded with media scare stories about hundreds of convicted murderers getting new trials.

Says Hurwitz: "We steered people away from filing amicus briefs because, based on my experience, unless they really add something to your case, they don't help. I really wanted to control what was being said." Hurwitz knows what it's like to be on the other side, being swamped by amicus briefs. As a young lawyer he clerked for the late Supreme Court Justice Potter Stewart.

The Ring case involves a prisoner who, in 1995, was convicted by an Arizona court of being a ringleader in the fatal 1994 robbery of an armored truck in which the driver was shot dead. Although Ring was never placed at the scene of the crime during the course of the trial, he was found to have played a key role in the planning of the robbery, and was thus convicted of felony murder by a jury, a crime for which the maximum penalty is death. But the jury split 6-6 on the charge of premeditation.

Given that in the U.S. it is almost unheard of for someone to be executed who didn't have a direct hand in a killing, it is unlikely that Ring would have gotten a death sentence if that had been the end of it. But when it came time for the judge to hold a sentencing hearing on Ring's case, new evidence was presented -- one of his accomplices testified that Ring had been the shooter. Based on that new information, which was never heard by the jury, the judge sentenced Ring to death.

And that seems to fly in the face of Apprendi vs. New Jersey, in which Scalia argued that the jury's right to review information used by a judge to sentence a convict is rooted in common law. Now, Ring's attorney Hurwitz is arguing that the court's Apprendi decision ought equally to apply to evidence used by a judge to sentence someone to death.

But Kent Cattani, the chief counsel for capital litigation in the Arizona attorney general's office and the man who drew up the state's response to Ring's appeal, says the state's position is that Ring's death sentence "doesn't increase the range of his sentence. A death sentence is not outside the range of possible sentences for first-degree murder." Cattani concedes that the new evidence presented to the judge at the sentencing hearing in Ring's case, after the jury had already been sent home, "might have made a death sentence more likely." But he adds, "A death sentence wasn't a surprise in this case -- it was a death-qualified jury and the defendant knew that he could get a death sentence."

Charles Hobson, an attorney with the Criminal Justice Legal Foundation, in Sacramento, Calif., one of two victims' rights organizations that filed amicus briefs in support of the state of Arizona's position in the Ring appeal, says that in addition to agreeing with the state's arguments, it's important that the high court be consistent regarding the death penalty. "For the court to all of a sudden sweep away" earlier precedents that had led to the state's death penalty procedures, he says, "would be a terrible violation of the trust states have in Supreme Court decisions."

At the Supreme Court's hearing on Ring, Scalia, an ardent supporter of the death penalty who has gone so far as to suggest that Catholic jurists in death penalty jurisdictions who don't think they can in principle sentence someone to death ought to resign, was backpedaling furiously from his pro-jury stance of two years earlier. At one point he argued that the court's 1972 Furman decision, which required states to separate capital cases into two parts, a guilt phase and a sentencing phase, "has no basis in common law," and that therefore how state courts handled the sentencing phase in death penalty cases was a procedural matter, not a matter of common law or Sixth Amendment issues.

"Actually," says Alan Scheflin, a law professor at Santa Clara University Law School and an expert on jury rights, "the reason juries are so important in common law is that in early English history, almost every crime carried a death penalty, and it was juries which protected criminals who committed lesser crimes by nullifying their verdicts. It's juries that led England to introduce lesser punishments."

In any event, Justice Ruth Bader Ginsberg skewered Scalia's effort to separate death sentencing from the impact of Apprendi. She asked the Arizona attorney general, who was agreeing with Scalia, "Would you tell me how one would explain to a citizen that [under Apprendi] you can't get five years added on to your sentence unless the jury makes the critical finding, but you can be put to death with the judge making the critical finding?"

That seems to be the crux of the matter: Is death different?

"The question is will Scalia and [Clarence] Thomas, who also voted for Apprendi, do what is principled and what is right?" asks George Kendall, who heads the NAACP Legal Defense Fund, and who sat through the April 22 hearing on Ring vs. Arizona.

Kendall notes that because this case is about jury primacy, which is a bedrock conservative judicial theory, it cuts across traditional liberal/conservative lines in this narrowly divided Supreme Court. And indeed, it seems to.

Ilo Jones is director of the Fully Informed Jury Association, a generally conservative and libertarian organization that promotes the concept that juries have the ultimate power in a trial not only to determine the facts of a case, and guilt or innocence, but also the law itself. FIJA, she notes, takes no position on the death penalty. But looking at the Ring case, and the evidence presented to the judge during a sentencing hearing, she says: "This was significant information which was not made available to the jury. In any instance where a citizen has placed him or herself in the hands of a jury, trusting that a just and reasonable decision will be rendered by that jury, and the jury is denied full access to all the facts of the case and to any information that is presented to the court, whether in their presence or absence, then the intent of the law of our nation has been thwarted."

Thomas and Scalia, two of the court's most conservative jurists, sided with the liberals Ginsberg, Souter and Stevens in supporting the Apprendi decision two years ago. But if those two conservatives were to defect in Ring vs. Arizona, the liberal justices could still conceivably craft a narrow 5-4 majority, some court observers say. They could do this by pulling in Justices Sandra Day O'Connor and Stephen Breyer.

O'Connor, who lately has publicly expressed concerns about the fairness and integrity of the death penalty, warned in the Apprendi case that it would inevitably lead to a questioning of judge-ordered death sentences, which is the way things are done in nine states, including her native Arizona. As she wrote in her Apprendi dissent, "If the court does not intend to overturn Walton [a reference to Arizona's death penalty statute, which assigns the role of sentencing in death penalty cases to the judge, and which the court upheld in a decision a decade ago], one would be hard pressed to tell from the opinion it issues today." Breyer, meanwhile, a generally liberal jurist who also opposed Apprendi, and O'Connor might well decide that in the interest of consistency with court precedent, they have to support Ring, argues Kendall.

Guessing how any Supreme Court will rule on a particular case based upon the justices' past decisions and on their comments during a hearing is a fool's game, but both Kendall and Hurwitz are expressing optimism that they have a winner here.

If the court does overturn Ring's sentence, the next question is how far-reaching its decision would be.

Hurwitz and Cattani agree that such a ruling would void the sentences of about 30 of Arizona's 80 current death row inmates -- the ones whose direct appeals of their sentences are still pending. With similar proportions of cases still on direct appeal in the other eight states where judges do at least some of the death sentencing, this could mean at least several hundred people would have their sentences overturned (though not their convictions).

In two other states, Montana and Idaho, judges do the sentencing in capital cases. In Colorado and Nebraska, a three-judge panel does the sentencing. In four other states -- Florida, Alabama, Indiana and Delaware -- juries make a recommendation of life or death, but a judge makes the final decision. In the remaining 29 states that have the death penalty, sentencing is in the hands of the jury.

There would also no doubt be a wave of new appeals filed for older cases based upon the ruling.

Of course, the court could, as it did with Furman three decades ago, make a Ring ruling apply to all cases, old or new, where a judge has done the sentencing, which would bring the total up to about 800 cases. Most legal experts say this is unlikely, particularly for this court.

According to Stephen Hawkins, attorney with the National Coalition to Abolish the Death Penalty, any favorable ruling in Ring, no matter how narrowly construed, would be a major victory for death penalty opponents. "It speaks to the fallibility of the death penalty. The death penalty is supposed to be a perfect punishment that is administered without error, and yet cases like this show that capital jurisprudence is really an emerging issue."

Then too, the high court could just duck the issue, rejecting Hurwitz's arguments and sending Timothy Ring back to Arizona to face execution.

Dave Lindorff

Dave Lindorff is an investigative journalist who writes for the Nation, London Review of Books, Counterpunch, Tarbell, FAIR and the collectively-run news site This Can't Be Happening! He won a 2019 Izzy Award for Outstanding Independent Journalism,

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