Can judges alone set death penalty?

An Arizona man, Timothy Ring, is convicted by a 12-member jury in the shooting death of an armored-car driver during a robbery.

Under Arizona law, the maximum penalty he faces from the jury verdict is life in prison. But state law also empowers Mr. Ring's trial judge to impose a death sentence in certain circumstances.

At Ring's sentencing hearing, the judge hears incriminating testimony from a co-conspirator – testimony never heard by the jury at trial. The judge decides to sentence Ring to death.

Does the sentencing hearing amount to a second trial conducted in violation of the defendant's Sixth Amendment right to be tried by a jury of his peers? That is the question the US Supreme Court takes up this morning in a potential landmark case that could dramatically shift the way criminal sentences are meted out in courts nationwide.

At stake are 776 death sentences issued in Arizona and eight states that have similar sentencing procedures. They are Alabama, Colorado, Delaware, Florida, Idaho, Indiana, Montana, and Nebraska. Also at stake are potentially thousands of other criminal sentences in non-death-penalty cases where punishments were enhanced beyond statutory levels by judges who based their decision on details of the crime never presented to the trial jury. The Supreme Court justices, in fact, are expected to also decide two drug cases this term that raise this question.

"We are not talking about letting people out of prison. We are talking about letting people be resentenced," says Jeffrey Green, a Washington lawyer who is following the issue closely.

Death-penalty supporters are critical of the court for entertaining Ring's appeal. "Is the Supreme Court going to be continually changing the rules on capital punishment so that it is not possible to ever have a stable system?" asks Kent Scheidegger of the Criminal Justice Legal Foundation in Sacramento, Calif. "This is an issue the Supreme Court decided squarely many years ago. It would be a betrayal of the people for them to flip [on this issue] at this late stage."

The Supreme Court last examined and upheld Arizona's capital-punishment sentencing scheme in 1990. The court ruled that the Sixth Amendment did not require that every finding of fact supporting a death sentence must be made by a jury rather than a judge.

But that was before the high court's ruling in a 2000 case called Apprendi v. New Jersey, in which a five-justice majority struck down a hate-crime statute that permitted a judge at sentencing to enhance a defendant's punishment beyond the maximum prison sentence authorized by the jury's verdict at trial.

"The Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, must be submitted to a jury and proved beyond a reasonable doubt," wrote Justice John Paul Stevens for the majority in the Apprendi case.

At the time of the decision, the majority said its ruling would not apply to death-penalty cases. But Justice Sandra Day O'Connor, in a dissent, said the case was a blueprint to overturn Arizona's capital-punishment sentencing system.

That disagreement two years ago has now taken the form of Ring v. Arizona.

In most states, death-penalty cases are carried out in a two-stage process, with a jury first determining guilt and then the same jury later deciding whether the defendant should be put to death or face a lesser sentence like life in prison based on aggravating or mitigating circumstances.

But in Arizona and the eight other states, a judge plays the key role in making the final determination of life or death.

The Sixth Amendment affords criminal defendants a right to a trial by jury in which key elements of the crime must be proved beyond a reasonable doubt. But under both federal and state sentencing guidelines – and some death-penalty sentencing procedures – judges are afforded the power to enhance a sentence if they determine at a sentencing hearing that certain factors played a role in the crime.

In Ring's case, the trial judge sentenced Ring to death after hearing the uncorroborated testimony (at the sentencing hearing) of an alleged co-conspirator who identified Ring as both the triggerman and leader of the deadly robbery.

The co-conspirator did not testify at Ring's trial because he did not agree to cooperate with prosecutors until after Ring's conviction.

In a detailed examination of Ring's case, the Arizona Supreme Court found that there was not enough evidence presented at Ring's trial to justify a death sentence. "For all we know from the trial evidence, [Ring] did not participate in, plan, or even expect the killing," the court said in its ruling.

But the court upheld Ring's death sentence, because it said the co-conspirator had provided enough extra evidence to justify capital punishment.

Lawyers for Ring say his death sentence should be thrown out and Arizona's entire system of sentencing in death-penalty cases declared unconstitutional.

"Under Arizona law [Ring's] death sentence was not possible by virtue of the jury verdict alone, but instead was imposed because of factual findings made entirely by the trial judge," writes Andrew Hurwitz, a Phoenix lawyer representing Ring, in his brief to the Supreme Court justices.

If the jury verdict in Ring's case stood alone, his sentence would have been life in prison, not death, Mr. Hurwitz says.

Lawyers for the state counter that Ring's jury found him guilty of first-degree murder and that the punishment for that crime ranges from life in prison to death.

The trial judge did not impose a sentence in excess of the maximum allowed by law, says Kent Cattani of the Arizona Attorney General's Office in his brief to the court. "The prescribed statutory maximum for the crime Ring committed is death," he writes.

Mr. Cattani adds that Ring was aware from the start that he might receive the death penalty.

In the Apprendi case, however, the defendant learned at sentencing that his punishment had been increased beyond the maximum. "In contrast, the state charged Ring with, and convicted him of, a class one felony," Cattani writes. "He was on notice from the date of his indictment that he faced a possible death sentence."

A decision in the case is expected by late June.