- The Washington Times - Tuesday, June 25, 2002

The Supreme Court ruled 7-2 yesterday that only juries, not judges, can decide which convicted murderers are eligible for execution.

Writing for the court, Justice Ruth Bader Ginsburg called it senseless that the Constitution would require juries to do "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 rationale of Justice Ginsburg's opinion was joined by Justices John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, David H. Souter and Clarence Thomas. Justice Stephen G. Breyer voted only for the judgment, arguing alone that only juries should order death.

Justice Sandra Day O'Connor and Chief Justice William H. Rehnquist dissented yesterday as they did two years ago from the underlying ruling in Apprendi v. New Jersey that unanimous juries must decide beyond a reasonable doubt virtually any factor used to make a sentence more severe.

The high court's second drastic revision of capital-punishment law in less than a week after Thursday's 6-3 ban on executing the mentally retarded ensures 168 killers in Arizona, Colorado, Idaho, Montana and Nebraska another chance at a life sentence.

In those five states, a jury determines guilt or innocence, but one or more judges then evaluates whether the particulars of the case warrant execution for example, if a murder was especially atrocious or if it was committed for money.

Arizona inmate Timothy S. Ring successfully argued that this meant he had two trials "one before a jury and then one before a judge."

Death-penalty lawyers said the ruling also could affect 629 prisoners in four other states, including 383 in Florida, where juries advise judges with sentencing decisions that are not unanimous and do not specify aggravating factors.

"If we are going to have a death penalty, it should be imposed in a democratic way and not by a judge who's facing re-election next month," said Chris Adams of Atlanta, death-penalty specialist for the National Association of Criminal Defense Lawyers.

"I think deciding the two cases so close together probably shows how difficult it always is to decide who lives and who dies. I think it is beyond the power of our legal system," said Richard Dieter, who heads the Death Penalty Information Center. "We've had a lot of people already executed who were mentally retarded, or who were sentenced by judges, and that's not right now. It's never going to be right."

Ring was convicted by a jury of being in the gang that killed armored-car driver John Magoch during a 1994 holdup, and a judge then decided Ring was the gunman and sentenced him to die. The Supreme Court order almost certainly will win him a new sentencing hearing before a jury.

Justices O'Connor and Rehnquist said in their dissent that they assume the decision is not retroactive for all, but predicted a flood of appeals from death rows that will burden the states.

In reaching its decision, the court confronted contradictions between the Apprendi ruling and the 1990 Walton ruling that upheld the judge's role in the Arizona sentencing system.

"We have overruled prior decisions when there is strong reason for setting the law straight. This is such a case," Justice Ginsburg said in announcing the decision from the bench. "Apprendi's reasoning is irreconcilable with Walton's holding in this regard, and today we overrule Walton."

"I understand why it is irreconcilable," Justice O'Connor wrote, "yet in choosing which to overrule, I would choose Apprendi, not Walton."

Justices O'Connor and Rehnquist, both Arizonans, said overturning the Arizona law would result in yet another "aftershock" from the original Apprendi decision. They said 1,802 appeals based on Apprendi clogged federal appeals courts and 18 percent of the 8,000 appeals to the Supreme Court last year raised related issues.

Lawyer Joseph D. O'Neill, of Vineland, N.J., who won the original case on behalf of pharmacist Charles C. Apprendi, said yesterday that he is amazed at the snowball effect of a decision handed down June 25, 2000.

"As Justice O'Connor has said, it's impossible to determine the overall outcome of this case. A Georgetown law professor told me shortly after the decision that this probably is the most important criminal-law decision by the U.S. Supreme Court in the last 10 years. Others say it could have the most impact of any criminal case in the 21st century," Mr. O'Neill said.

The cost to the legal system of such a process in state death cases is expected to be incalculable, but lawyers said life on death row often leads to a negotiated sentence the second time around.

"In a large case, rehearings can cost as much as the original trial, up to three-quarters of a million dollars," Mr. Adams said in a telephone interview as he drove to visit a client at Alabama's death row. "But less than 20 percent of the people who go back for rehearings get resentenced to death."

Justice O'Connor said many of those killers would fail to win resentencing hearings because they have used their limited number of appeals after a conviction is final.

"Nonetheless, the need to evaluate these claims will greatly burden the courts in these five states. In addition, I fear that the prisoners on death row in Alabama, Delaware, Florida and Indiana may also seize on today's decision to challenge their sentences," she wrote.

Florida has 383 condemned prisoners, Alabama 187, Delaware 20 and Indiana 39. The other 29 death-penalty states already leave sentencing to juries.

States still may allow judges the power of mercy against a jury's recommendation for execution. They balance aggravating factors, on which jurors must be unanimous, against mitigating factors raised by the defense.

The court did not rule yesterday on whether juries must also decide on mitigating factors.

"This is a great day for our criminal justice system. The court recognized the jury's critical role under our Constitution to decide all the facts necessary to impose the death penalty on someone," said Constitution Project Executive Director Virginia E. Sloan, who was not the only death-penalty opponent encouraged by the ruling.

In a related sentencing case, the court refused 5-4 yesterday to require that federal juries review factors needed to impose a mandatory minimum sentence.

It rejected pawnbroker William J. Harris' contention in a North Carolina marijuana case that he was convicted solely on drug charges, but a judge wrongly sentenced him to seven extra years for selling marijuana while "brandishing" the holstered handgun he normally carried in his pawnshop.

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