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Prosecutors Weep; Ninth Circuit Overturns 127 Death Sentences

by ELAINE CASSEL

On September 2, 2003, the Ninth Circuit Court of Appeals ruled in the case of Summerlin v. Stewart that death sentences imposed by judges rather than juries must be set aside. A logical outgrowth of two recent Supreme Court decisions, the Ninth Circuit’s decision could lead to the technical commutation of sentences of more than 127 prisoners in Arizona, Montana, and Idaho. That is, unless prosecutors ask for and seek a stay of the decision pending an appeal to the U.S. Supreme Court. These are the three states within the jurisdiction of the Ninth Circuit that utilize judges, not juries, to sentence defendants in capital cases.

The high court will surely review the decision, given the sheer numbers of sentences involved. And a Supreme Court decision that reverses the Ninth Circuit would be tough to justify. For in its landmark ruling in 2000 in the case of Appredi v. New Jersey, the Court held that juries must decide beyond reasonable doubt every fact that leads to the imposition of an increased penalty for the defendant (e.g., a 20-year as opposed to a 10-year sentence based on the amount of drugs sold). Such determinations must not be made by judges, the Court said.

The court extended this logic to the death penalty last year in Ring v. Arizona, ruling that juries must determine the factual bases for death sentences. In so ruling, the justices invalidated judge-based capital sentencing systems in Arizona, Idaho, Montana, Colorado and Nebraska.

What the high court did not decide was whether or not its ruling must be applied retroactively or only to sentences after the date of the Court’s ruling. The Ninth Circuit, in an 8-3 majority of all sitting judges, essentially said that the Ring ruling had so transformed the constitutional framework governing the imposition of death sentences that it would be unconstitutional to execute someone who had been sentenced under a pre-Ring system.

According to The Washington Post, If the Ninth Circuit ruling is upheld, the impact could extend to Nebraska and Colorado, which had similar laws to Arizona, Idaho and Montana, and where an additional nine death row inmates might benefit, according to Deborah Fins, who tracks the death-row population for the NAACP Legal Defense Fund, an anti-capital punishment organization.

Four other states, Florida, Alabama, Delaware and Indiana, with a total death row population of 632, have used hybrid systems in which juries advise judges, but judges make the final call. These systems may also face court challenges under Ring.

Imagine how this news upsets prosecutors (especially the chief prosecutor in the land, Attorney General John Ashcroft), who cherish the death penalty and will stop at nothing to see it imposed. You can be sure they are pouring over the decision and poking holes in it sufficient to convince the Supreme Court that retroactively applying a decision is unfair–that people dying after the Court has said the process is illegal is a fine thing. When the state assumes the role of “Deity,” the opinion said, it better be right. It is not right to say that tomorrow’s defendant must be sentenced to death by a jury, but for yesterday’s accused, death will do. Responding to the three dissenters, the majority challenged this “warped” view of justice:

Is it possible that prisoners will now 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? 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?

…{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.

Whether the high court will muster a majority that is as morally outraged as the Ninth Circuit remains to be seen. It may not take a constitutional scholar to comprehend the unfairness of killing people whose appeals were completed before Ring. But it will take five of nine Supreme Court justices acting boldly and compassionately and resisting political pressure to go along with the arbitrary machinery of death grinding away day to day in the death houses of American prisons.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. She can be reached at: ecassel1@cox.net

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