Timing is Everything

Should judges, rather than juries, have the authority to determine the facts in death penalty cases? The Supreme Court said no two years ago, in Ring v. Arizona, striking down capital sentencing laws in five states. But what about prisoners sentenced before the decision? If they’ve exhausted their appeals, should their executions go forward? The 9th U.S. Circuit Court of Appeals in San Francisco weighed in on Tuesday, ruling that the Supremes’ decision, known as Ring, applies retroactively to death row inmates in Arizona, Idaho, and Montana, voiding in a stroke more than 100 death sentences.

The decision is likely to go to the Supreme Court, not least because, as the Washington Times’ Frank J. Murray reports, prosecutors don’t fancy slogging through all those cases.

“‘I think the United States Supreme Court will have to resolve this before there will be any resentencings in any of these states,’ said Richard Dieter, executive director of the Death Penalty Information Center.

‘A lot else has to happen … a lot of lives and work and money is needed to redo these cases with juries, with uncertain results and then you start the appeal process all over again if they are resentenced to death.'”

Arizona Attorney General Terry Goddard summed up what’s at stake. “Obviously guilt or innocence isn’t on the table,” he told the Washington Post, “but life and death is.” With lives in the balance, it doesn’t seem a lot to ask prosecutors to hustle a little in revisiting these cases.

And, as the court’s majority asked in its decision, (PDF) should inmates die simply because their timing was off? Should happenstance determine whether an inmate is or is not executed? Elaine Cassel, writing for CounterPunch, thinks not:

“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?”

The editors of The Arizona Republic argue that the 9th Circuit Court of Appeals “did the right thing in ensuring the rule of law is applied equally:

“[T]he very strength of our emotions is why we need the rule of law, applied fairly, rationally and constitutionally. No matter how damning the evidence, all people accused of murder have the right to a trial by a jury of their peers and to go through every step of the legal system.

The 9th Circuit Court didn’t make a bold move in overturning these death sentences. It gave a fair answer to a question that the Supreme Court left hanging – one that deserves to last through the inevitable appeal.”

Nevertheless, argues an editorial in the Great Falls Tribune, the Supreme Court will almost inevitably be forced to deal with the issue, as the U.S. 11th Ciruit in Florida issued an opposite decision to the San Francisco court’s in July. But the Supremes should be guided, notes the editorial, by a simple question: Was an inmate’s case settled by a jury (OK) or a judge (not OK)? “[A]nd it shouldn’t matter whether a conviction occurred before or after the 2002 case.”


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