- The Washington Times - Wednesday, June 26, 2002

Monday's Supreme Court decision in Ring vs. Arizona clears away a lot of the philosophical underbrush that has confused state legislators and the courts for many years. In this 7-2 decision, the Supreme Court revived the English common law doctrine that only a jury can decide the facts on which a death penalty can be based.
The Sixth Amendment requires trial by jury, and the Eighth precludes cruel and unusual punishment. Those principals have resulted in several decisions that impose limitations on how a person's guilt is found by a jury, and then a determination of "aggravating factors" is made to decide if the death penalty should be imposed. Since 1972, in the Supreme Court's decision in Furman v. Georgia, the states have struggled with the concept of "aggravating factors" things like premeditation, brutality and other facts that show the severity of the crime. At least five states Colorado, Nebraska and Arizona among them have responded by creating systems where juries decide guilt and a judge decides the penalty in a separate hearing. That's what happened in the case of Timothy Ring.
During an armored car holdup in 1994, the driver was killed and the robbers got away with more than $800,000 in cash and checks. The police determined that Ring and two of his friends were probably the perpetrators. In conversations recorded by wiretaps, the suspects laughed about how police were being misled and worried that Ring's house contained "a very large bag" of the money. A search of Ring's house revealed about $270,000 of the cash. Under the felony murder law, which provides that those participating in a separate crime are guilty of any murder that results, Ring was found guilty of the guard's murder. But it was only in the sentencing hearing that testimony by Ring's accomplices established that he was the actual murderer. On that evidence, the judge sentenced him to death. Because the Arizona law allowed the judge to impose the death penalty based on facts the jury didn't decide, the Supreme Court overturned the death sentence and held the Arizona law unconstitutional. The Supreme Court ruled that the Sixth Amendment means that the death penalty can only be imposed based on facts decided by the jury.
The Supreme Court's decision restates both of the jury's English common law functions: to determine guilt and to decide the severity of the crime. As Justice Antonin Scalia points out in his concurring opinion, states that wish to leave the life-or-death decision to the judge may continue to do so. All they must do is place the "aggravating factor" decision in the jury's hands. The Ring decision is clear enough that Arizona and the other states can amend their laws again this time with some faith that they can write laws that will withstand the inevitable constitutional challenge.

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