Death Watch
September/October 2002, Page 8

Ring: Hammer of justice, bell of freedom... all over this land
By Chris Adams

Ring: Hammer of justice, bell of freedom . . . all over this land

To borrow liberally from Pete Seeger’s classic folk song, If I Had a Hammer, the United States Supreme Court has given us a bell to ring. Let’s ring it in the morning, ring it the evening, and settle our cases for life all over this land.

When the Supreme Court handed down Ring v. Arizona, 122 S.Ct. 2428 (June 24, 2002) , we were thrilled . The death penalty sentencing scheme in Arizona was declared unconstitutional because a judge, rather than jurors, found the existence of aggravators, which are necessary elements to make Timothy Ring death eligible. Consequently, many, if not all, of the death row inmates in Arizona, Colorado, Idaho, Montana, and Nebraska will get relief. Additionally, inmates in the judge - override states of Alabama, Delaware, Florida, and Indiana might also benefit. After talking with many NACDL members that day and in the en suing weeks, the reality set in that we do not know what impact the Ring decision has for most of our clients.

What does Ring mean? The short answer is that Arizona’s capital sentencing scheme is unconstitutional. Arizona’s capital sentencing scheme requires the judge alone, following a
conviction of first- degree murder, to determine the existence of aggravation and mitigation and to impose the sentence. In other words, Timothy Ring could only be sentenced to life unless the judge, not the jurors, made additional findings. The jurors hung on premeditated murder but convicted Timothy Ring of felony murder, both of which count as first- degree murder. The trial judge found aggravating circumstances to exist and sentenced Timothy Ring to death. In reversing Ring, the Supreme Court overruled Walton v. Arizona, 497 U.S. 639, a 1990 decision in which the Court upheld Arizona’s capital sentencing scheme.

The only difference between Walton and Ring is the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi held that any sentencing factor that has the effect of raising the sentence above the statutory maximum must be submitted to the jury and proven beyond a re a s on able doubt. This right is rooted in Sixth Amendment’s jury trial right, made applicable to the states through the Fourteenth Amendment. The only exception is for prior convictions. Thus, Walton and Timothy Ring’s death sentence violate the rule of Apprendi. (For more on Apprendi see Death Watch November 2001 and March 2002.)

Many questions

The Supreme Court’s 7-2 decision reached only the very narrow question raised by Timothy Ring that a jury, rather than the trial judge, must find an aggravating circumstance beyond a reason able doubt before the death penalty may be imposed. The Ring decision raises many more questions than it answers :

• Is it retroactive?
• Do the jurors merely need to decide that an aggravator exists or must they render the sentence?
• If they only need to decide aggravators, do the jurors need to find one aggravator or all aggravators?
• If they only need to decide aggravators, must they also find mitigators?
• Since aggravators are the “functional equivalent of an element,” must they be pled in the indictment?
• If the aggravating circumstances must be pled in the indictment, must the grand jury also hear evidence of mitigating circumstances?
• Do we really want our client’s family subpoenaed to the grand jury before we have the opportunity to develop our mitigation case?
• If aggravators are elements that must now be pled in the indictment, then does re- indicting our clients with these new elements violate principles ex post facto?
• Can Ring be extended to exclude non- statutory aggravation?
• Are previously permissible prosecution arguments that diminish juror responsibility but have been all owed because they are truthful (for instance, the jurors’ verdict is only advisory or a recommendation to the judge), now impermissible under Ring?
• Must sentencing jurors be unanimous before a death sentence can be imposed?
• Is proportionality review, which many state statutes require the appellate courts to conduct, a functional equivalent of an element that must be decided beyond a reasonable doubt by the jurors?

All of these questions are unanswered. Virtually every state’s capital scheme will have something that we can Ring. For instance, courts should have to revisit the Texas and Oregon capital statutes, upheld in Jurek v. Texas, 428 U.S. 262 (1976). These identical statutes allow for the imposition of the death penalty if “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” (Italics added). Under an Apprendi and Ring analysis, the future dangerousness determination is the functional equivalent to an element, the future dangerousness element must be proven beyond all reasonable doubt rather than by a probability, and the Texas/Oregon statutes are therefore unconstitutional.
There is also a strong argument that this element must be pled in the indictment.

Uncertainty

This Ring confusion is our playground, a place where a little creativity leads to limitless fun. At every NACDL seminar at least one speaker challenges us to think outside the box. For the time
being, Ring removes the box . At some point in the future, Ring’s dust will settle. Until it does, we have the wonderful opportunity to aggressively insert all types of Ring is sues into our cases; there is no precedent telling us we are wrong. Importantly, the uncertainty created by Ring will allow us to settle many more cases for life. Let’s Ring all over this land.


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