Another strike against the death penalty

The U.S. Supreme Court lifted the death sentence on more than 100 cases, but some critics say court conservatives may only be trying to fine-tune the machinery of capital punishment.

By David Lindorff
Published June 25, 2002 11:49PM (EDT)

It's not the 1960s-era Warren Court, but in two remarkable decisions in the past week, the U.S. Supreme Court has lifted the death penalty from more than 370 formerly doomed prisoners -- 10 percent of the total death row population -- and opened the door to new appeals by hundreds more.

The decisions Monday and last Thursday stunned both sides in the contentious debate over capital punishment. Opponents cheered the unexpected victories, saying the rulings made over the opposition of Chief Justice William Rehnquist marked the most significant turn in the debate in 25 years. Advocates were left to wonder what has happened to a court that had been widely considered the most conservative in half a century.

Some analysts, however, suggested that the court's fundamental support for capital punishment likely remains intact, and that conservative justices who joined Monday's ruling may have been trying to pare away cases that are most vulnerable to criticism at a time when pointed questions have arisen about the overall integrity and fairness of the death penalty.

The latest decision on Monday overturned the death sentence of Timothy Ring, a man convicted in Arizona seven years ago of participating in the fatal 1994 robbery of an armored car, and simultaneously overturned all the death sentences currently on appeal in five states, including Arizona.

At issue was Arizona's practice of having judges, instead of jurors, deciding whether a convicted person deserved death or life in prison without parole. While a jury had found Ring guilty because he had helped plan the robbery, trial testimony had not placed him at the scene of the crime, and thus they did not find evidence of premeditation. At a sentencing hearing before a judge, there was further testimony from an accomplice in the crime who claimed Ring had not only been at the scene but had been the shooter of the driver of the armored car. On that basis the judge sentenced him to die.

In its 7-2 decision, the high court decided that any facts that lead to an increased sentence, including the sentence of death, must be made by a jury, not by a judge. Court watchers had expected the Ring case to have the support of the four most liberal justices -- David H. Souter, Ruth Bader Ginsburg, John Paul Stevens and Justice Stephen Breyer -- but were doubtful about whether there would be any support from any of the court's five more conservative members.

Much attention was focused on Justice Antonin Scalia, perhaps the court's most staunch supporter of capital punishment, because two years ago he had written a strong opinion in support of the court's 5-4 ruling in a case called Apprendi v. New Jersey. That case had established that juries had to determine the facts that affected sentencing in noncapital cases.

During the hearing on Ring last April, Scalia had suggested, with some of his questions to the attorneys in the case, that the Apprendi decision would not apply to death penalty issues because the Supreme Court's requirement that all capital trials be separated into two parts -- a guilt phase and a sentencing phase -- was just a technical matter, not something rooted in constitutional or common law principles.

In the end, however, Scalia bowed to the new precedent he had helped set by Apprendi. As he wrote in his opinion supporting the majority decision in Ring: "I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment must be found by the jury beyond a reasonable doubt."

Scalia was joined by two other conservative justices, Clarence Thomas, who had also supported the earlier Apprendi decision, and Anthony Kennedy, who had opposed Apprendi but who now said he felt bound by the court's earlier decision on jury primacy.

In dissent in the Ring case were Rehnquist and Justice Sandra Day O'Conner.

The Ring decision immediately means that some 168 death row prisoners whose cases are still on direct appeal in the states of Arizona, Nebraska, Idaho, Colorado and Nebraska, where judges do all the capital sentencing, will have their sentences lifted. Before a court can decide whether those people's sentences default to life in prison or whether they should be retried before a new jury to consider resentencing them to death, the legislatures in those states would have to pass new sentencing legislation.

The case will have much wider implications, though. In four other states -- Florida, Alabama, Delaware and Indiana -- a much larger number of people are on death row, sentenced by judges who first received recommendations from juries. But a large number of those facing death in those states were put there by judges who overrode jury recommendations of life sentences.

"The court didn't deal directly with those states," said Ring's victorious attorney Andrew Hurwitz, "but they will have to face it before long. All those people are going to be filing new appeals based on this decision."

Alan Dershowitz, a constitutional scholar and attorney at Harvard University, argues that the case will reach even further, to many of the people on death rows in the 31 other states in which juries do the sentencing. "This decision has broad implications for the whole process of jury trials," says Dershowitz. Explaining that the Supreme Court has now given constitutional authority to the fact-finding function of capital juries, he predicted: "You're going to see defense attorneys bring cases that challenge jury instructions, and that examine how juries reach their decisions about aggravating and mitigating circumstances, because the court has ruled that you have a constitutional right to a jury of your peers in your sentencing."

Surveying the latest decision, as well as the 6-3 decision by the court last week barring the execution of the mentally retarded, Diane Clements, the president of a Texas-based national pro-capital punishment organization called Justice for All, called the effect "very disturbing."

"We've all proceeded on the basis of case law that supported what we've done, and now the Supreme Court has done an about-face," she said. "How do you move forward now when there's no firm ground?

"I don't think the Supreme Court is going to overturn the death penalty," Clements added. "But they do seem to want to get rid of many of the death eligible cases."

Indeed, there are some who suspect that some conservative members of the high court may be trying to shore up the "core death penalty" by paring away the more legally and politically vulnerable cases, such as those it has eliminated with its last two decisions. Many constitutional scholars expect the court sooner or later to also ban the execution of underage killers.

"I'm sure they (the conservative justices) are trying to preserve the core of the death penalty by getting rid of problems," says Dershowitz. "But these decisions also do seem to suggest a change of attitude on the part of at least a few of the justices, who had once seemed hell-bent on opening up the process of executing people."

Dershowitz also speculates that several of the conservative justices may be trying to make decisions that would position them for consideration to replace Chief Justice Rehnquist, who is expected to retire soon. "With the position of chief justice opening up, they may be trying to move to the middle," he said.

Edward Lazarus, a former federal prosecutor who writes on Supreme Court issues, says the Supreme Court's recent death penalty decisions show both a "hardening" of the anti-death penalty positions of the court's four more liberal members, as well as a "softening" of the views of conservative Justices O'Connor and Kennedy. As a result, he says, "The anti-death penalty side really only needs one vote, either O'Connor or Kennedy, to prevail in any given case and the consequence will be, at least for the next few years, a substantial decrease in executions as death row inmates seek to take advantage of the new rulings."

Meanwhile, David Elliott, a spokesman for the National Campaign to Abolish the Death Penalty, cautions that the two recent decisions, while making this court "the most favorable on the death penalty in 25 years," do not herald any overturning of the nation's capital punishment system, which still has over 3,300 people awaiting execution. "We are making a mistake if we count on the Supreme Court to do that," Elliott said. "The only way capital punishment will be abolished is on a state-by-state basis through grass-roots organizing."

David Lindorff

Philadelphia-based journalist Dave Lindorff writes regularly for Salon.

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