Death sentences by judges: Should they be thrown out?

Two years ago, the US Supreme Court ruled in an Arizona death-penalty case that juries, not judges, must make the decision about whether a convicted murderer should be subjected to capital punishment.

The ruling reversed the sentence of death-row inmate Timothy Ring, and it prompted a number of states to rewrite their capital sentencing procedures to involve juries rather than judges in all pending and future cases.

But the Ring case left open a thorny question. If Mr. Ring's death sentence was meted out in violation of constitutional principles, what about scores of other inmates sentenced to die under similar circumstances? Should their sentences be reversed too?

Monday, the justices take up a second Arizona case to decide whether the court's 2002 decision in the Ring case should be applied retroactively. If a majority of justices answer yes, their ruling could invalidate every death sentence in the US handed down by a judge rather than a jury.

The case has potential implications for 86 death-row inmates in Arizona, 14 in Idaho, 12 in Nevada, five in Nebraska, and four in Montana. If the high court issues a particularly broad ruling mandating mass resentencings, the case could also affect death-row inmates in Florida, Alabama, Delaware, and Indiana. Some analysts warn that any ruling supporting retroactive application of Ring would trigger constitutional challenges to a wide range of noncapital sentences determined by judges rather than juries, including federal sentencing guidelines.

The case, Schriro v. Summerlin, is not about whether convicted murderers should be set free. Rather, the issue is whether they must be afforded a new sentencing hearing to allow a jury rather than a judge to decide whether they should be put to death or locked away in prison.

"What it comes down to is fairness," says Dale Baich of the Federal Public Defender's Office in Phoenix, which is representing Arizona death-row inmate Warren Wesley Summerlin. "Do you allow some individuals on death row to get the benefit of the Ring decision, and not allow others to get that benefit?"

Arizona prosecutors have a different view. "Is it fair for the state and society to go through another sentencing when they relied on existing law and did it correctly [the first time]?" says John Pressley Todd, Arizona assistant attorney general. Mr. Todd says that even if Mr. Summerlin is afforded a new sentencing hearing, it is unlikely that any jury would reach a result different from the death sentence issued by the judge.

Summerlin was convicted of raping and bludgeoning to death a bill collector, Brenna Bailey, who came to his home in April 1981. Her body was discovered a day later wrapped in a bedsheet in the trunk of her car. Summerlin's wife identified the bedsheet as having come from the Summerlin home.

In accord with Arizona law, following the jury's guilty verdict the trial judge was required to weigh any aggravating or mitigating circumstances to determine whether a death sentence was appropriate. The judge found no mitigating circumstances and two aggravating circumstances. He ruled that death was an appropriate punishment because the crimes had been committed under especially cruel or heinous circumstances. (Ms. Bailey's skull was crushed.) The judge also found that Summerlin had a prior felony conviction.

"There is no question about his guilt here," says Todd. He says the Supreme Court's earlier decision in Ring should be applied retroactively only if it would result in a different outcome. Otherwise, he says, "No one benefits - not the defendant, not the justice system, not society as a whole."

In his brief to the court Todd writes: "The Ring rule does not qualify for retroactive application ... because it does not implicate the accuracy or fairness of capital sentencing proceedings."

He adds, "Ring did not change what is to be decided, but only who decides - a fair and impartial judge, or a fair and impartial jury."

Summerlin's lawyers disagree. Rather than a procedural rule, the Supreme Court opinion created a substantive change in the law that mandates retroactive application, they say. All death sentences issued by judges rather than juries are unconstitutional, Summerlin's lawyers say.

Involvement of a jury at sentencing injects additional safeguards into the capital punishment system, they say, and the Constitution demands no less.

"Even if each of these defendants were ultimately sentenced to death [by juries], at least their sentence would be constitutional," says Michael Burke, an Arizona federal public defender and member of the Summerlin defense team.

"The Sixth Amendment to the Constitution guarantees a right to a jury trial, and these individuals were denied that fundamental right," adds Mr. Baich.

Five federal circuit courts of appeals (the Fifth, Seventh, Eighth, 10th, and 11th) and five state supreme courts (Arizona, Nebraska, Alabama, Georgia, and Nevada) say the Ring decision is not to be retroactively applied. Some said if the US Supreme Court intended to apply its opinion retroactively, it would have said so.

But other judges have ruled differently. The Missouri Supreme Court, a federal judge in Nebraska, and the Ninth US Circuit Court of Appeals in San Francisco have ruled that the Ring decision should be applied retroactively. It is the Ninth Circuit's ruling that is before the high court.