Dead Wrong or Right On?
Should The Supreme Court Uphold the Ninth Circuit's Reversal of 122 Death Sentences Imposed by Judges, Not Juries?

By ELAINE CASSEL

Thursday, Sep. 11, 2003

On September 2, the U.S. Court of Appeals for the Ninth ruled in Summerlin v. Stewart that past death sentences imposed by judges, rather than juries, must be set aside. The decision could lead to the resentencing of as many as 122 prisoners in six death penalty states within the Circuit where judges impose criminal sentences: Arizona, Colorado Idaho, Montana, Nevada, and Idaho.  

The decision was a logical - indeed, an inevitable - outgrowth of two recent Supreme Court decisions. But that hasn't stopped the Attorney General of Arizona from seeking U.S. Supreme Court review. Other attorneys general from affected states may join him.

If it grants review, the U.S. Supreme Court should affirm the Ninth Circuit's well-reasoned opinion. Its prior rulings demand it.

The Summerlin Case Itself: An Illustration of the Death Penalty Gone Wrong

Summerlin's case was "stranger than fiction," to quote the majority opinion. "It is the raw material from which legal fiction is forged: A vicious murder, an anonymous psychic tip, a romantic encounter that jeopardized a plea agreement, an allegedly incompetent defense, and a death sentence imposed by a purportedly drug-addled judge."

Summerlin is functionally retarded. He suffers from organic brain dysfunction and poor impulse control. It seems inconceivable that he could have meaningfully assisted in his own defense. In light of his mental state, it is cruel to impose the death penalty upon him - an issue the U.S. Supreme Court has separately addressed in Atkins v. Virginia.

Summerlin's judge was later disbarred for drug addiction, and may well have been affected by that addiction during the case.

The prosecutor had initially been willing to accept Summerlin's plea of guilty and to recommend a long prison term. This was during the time frame in which Summerlin's public defender had sex with the prosecutor, a bizarre fact that remained undisclosed for some time and that ultimately led to her withdrawal from the case late in the proceedings.

In spite of the plea agreement, the judge indicated that he might ignore the sentencing recommendation and impose a higher sentence. Summerlin withdrew his guilty plea. When Summerlin was convicted by a jury, the judge who had sabotaged Summerlin's plea imposed the death penalty - for Arizona places the penalty phase of a criminal trial in the hands of the judge. It was this procedure that the Supreme Court had rejected in a prior case.

Unsurprisingly, throughout the trial, as the Ninth Circuit's opinion describes, confusion reigned. Later, Summerlin's appellate counsel argued that his substitute trial counsel, called into a complex case with the highest stakes at the last minute, was not able to provide the effective assistance of counsel the Sixth Amendment guarantees. The Ninth Circuit rejected this contention, however, but reversed the sentence of death.

The Decisions Upon Which the Ninth Circuit's Summerlin Decision Was Based

In 2000, in Apprendi v. New Jersey, the Court held that juries - not judges - must decide beyond a reasonable doubt every fact that leads to the imposition of an increased penalty for the defendant.

Apprendi affirmed one of the most fundamental principles of our system - that every criminal defendant has a right to a jury trial. Conservative and liberal justices alike joined in the outcome, including Justices Thomas and Scalia. Scalia stressed that the Sixth Amendment right to a jury trial "has no intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury."

Then, in 2002, in Ring v Arizona, applying the same logic, the Court held that juries must determine the factual bases for death sentences in particular. Again, Justices Scalia and Thomas voted with the majority. The result of the Court's holding was to invalidate Arizona's, as well as other states' death penalty systems - which had previously allowed only judges to impose the death penalty.

Together, the two decisions plainly hold that judges cannot make factual findings that lead to a sentence of death. Compared to life imprisonment, or virtually any other penalty, a death sentence is an increased penalty. And under Apprendi, a jury thus must find the facts supporting an increased penalty. Moreover, if there was ever any doubt that Apprendi applied in the death penalty context, Ring certainly resolved it.

The Retroactivity Issue: The Basis for The Petition for Supreme Court Review

So what could the basis for the current petition for Supreme Court review be? Hasn't the Court already resolved this question? Plainly, Summerlin's judge-imposed death sentence was unconstitutional. So he can't be executed, right?

Not according to the attorney generals. They will argue that the Court's decisions are not retroactive, so that past death sentences can stand. The Arizona Supreme Court has been equally recalcitrant. It ruled that Ring should not be applied retroactively to its death row prisoners. So has the Nevada Supreme Court, and the U.S. Court of Appeals for the Eleventh Circuit.

The Ninth Circuit disagreed. It held that the mandate of Ring must be applied retroactively. Significantly, the issue was not close: It drew agreement from eight of eleven federal judges on the en banc panel. (An "en banc" panel represents a larger portion of the Circuit's sitting judges than an original three-judge panel.)

The key modern U.S. Supreme Court decision that provides guidance on whether a constitutional ruling that changes the law must be retroactively applied is Teague v. Lane. Under Teague, a court must ask whether the decision was merely procedural, or a substantive one that affected the fundamental structure of criminal proceedings.

In Summerlin, the Ninth Circuit, having properly asked this question, found that Ring was plainly substantive, in the deepest sense. The majority reasoned correctly that Ring did more than alter "who decides" death." It also "restructured Arizona law and it redefined, as a substantive matter, how that law operates."

The Ninth Circuit was absolutely right. If you doubt it, recall that liberal and conservative Justices alike agreed - and expressed in their Apprendi opinions - how very fundamental and basic is the principle that juries, not judges, must find sentence-determining facts.

The "juries must find facts" rule Apprendi set forth was no mere procedural quirk. According to even Justice Scalia - no friend of the criminal defendant - it was a truth without which the Sixth Amendment right to a jury trial "has no intelligible content." One could hardly imagine a statement more passionately stressing the importance of this rule - and this is just the rule that Ring applied.

The majority of the Ninth Circuit judges believed that the constitutional reach of Ring was so great that the decision must be applied retroactively to all condemned men on the death rows within its jurisdiction. As concurring Judge Stephen Reinhardt pointed out in his impassioned opinion, "[I]f our society truly honors its constitutional values, it will not tolerate the execution by the state of individuals whose capital sentences were imposed in violation of their constitutional rights. It should not take a constitutional scholar to comprehend that point."

After all, imagine the alternative - as Reinhardt did all too clearly. He described a system in which "prisoners [would] be executed by the state solely because of the happenstance that the Supreme Court recognized the correctness of their constitutional arguments too late--on a wholly arbitrary date, rather than when it should have. . . ."

In addition, he asked, "Will we add to all of the other arbitrariness infecting our administration of the death penalty the pure fortuity of when the Supreme Court recognized its own critical error with respect to the meaning of the Constitution?Can we justify executing those whose legal efforts had reached a certain point in our imperfect legal process on the day the Supreme Court changed its mind, while invalidating the death sentences of those whose cases were waiting slightly further down the line?"

Justice so arbitrary is antithetical to a free society. It is antithetical to America's legal system, which strives for both justice and fairness. And it is antithetical to the Constitution.

Why the Added "Burden" Of Summerlin Isn't Really a "Burden" At All

It's true that, as the Ninth Circuit dissenters pointed out, that honoring the right to jury - not judge - factfinding for death penalty defendants will impose burdens on states where prisoners have, at least temporarily, suffered a reprieve. But these burdens derive from Ring, not from the Ninth Circuit's decision in Summerlin.

Incredibly, the Summerlin dissent complains that since Ring invalidated five States' death penalty systems, Summerlin might lead all 168 prisoners on death row in those States to challenge their sentences - which would then "burden" the courts.

But what is the burden of prisoners challenging their death sentences when the Supreme Court has left the door open in Ring? After all, shouldn't we be more worried if states' death penalty systems were voided, and death row prisoners could not challenge their sentences?

Equally incredibly, the Summerlin dissent also expresses fear that the 529 prisoners on death row in Alabama, Delaware, Florida, and Indiana will now challenge their sentences too - leading to even more "burden." Why would they challenge their sentences? Because there, "the jury renders an advisory verdict but the judge makes the ultimate sentencing determination...." - and thus violates Ring.

In other words, by the dissent's logic, the courts in those states may be "burdened" because under Ring, those systems, too, might be unconstitutional. And for that reason, death row prisoners might possibly have the temerity to challenge the death sentences that resulted from those unconstitutional systems.

Finally, even by the dissenters' own count, fewer than 1000 prisoners will challenge their sentences based on the retroactive application of Ring. If our federal court system cannot handle these cases, when the challengers' very lives are at stake, what good is it?

The Supreme Court is likely to affirm Summerlin and reject the dissenters' view that people should die rather than challenge their unlawful sentences. In so doing, it will slow down the machinery of death in America's prisons and hasten the day when the death penalty is outright abolished.


Elaine Cassel practices law in Virginia and the District of Columbia, teaches law and psychology, and writes a weblog on civil liberties. Her forthcoming book, The Other War: The War At Home, about civil liberties post September 11, 2001, will be published in 2004 by Chicago Review Press.

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