Can judges alone set death penalty?

An Arizona man, Timothy Ring, is convicted by a 12-member jury in the shooting death of an armored-car driver during a robbery.

Under Arizona law, the maximum penalty he faces from the jury verdict is life in prison. But state law also empowers Mr. Ring's trial judge to impose a death sentence in certain circumstances.

At Ring's sentencing hearing, the judge hears incriminating testimony from a co-conspirator – testimony never heard by the jury at trial. The judge decides to sentence Ring to death.

Does the sentencing hearing amount to a second trial conducted in violation of the defendant's Sixth Amendment right to be tried by a jury of his peers? That is the question the US Supreme Court takes up this morning in a potential landmark case that could dramatically shift the way criminal sentences are meted out in courts nationwide.

At stake are 776 death sentences issued in Arizona and eight states that have similar sentencing procedures. They are Alabama, Colorado, Delaware, Florida, Idaho, Indiana, Montana, and Nebraska. Also at stake are potentially thousands of other criminal sentences in non-death-penalty cases where punishments were enhanced beyond statutory levels by judges who based their decision on details of the crime never presented to the trial jury. The Supreme Court justices, in fact, are expected to also decide two drug cases this term that raise this question.

"We are not talking about letting people out of prison. We are talking about letting people be resentenced," says Jeffrey Green, a Washington lawyer who is following the issue closely.

Death-penalty supporters are critical of the court for entertaining Ring's appeal. "Is the Supreme Court going to be continually changing the rules on capital punishment so that it is not possible to ever have a stable system?" asks Kent Scheidegger of the Criminal Justice Legal Foundation in Sacramento, Calif. "This is an issue the Supreme Court decided squarely many years ago. It would be a betrayal of the people for them to flip [on this issue] at this late stage."

The Supreme Court last examined and upheld Arizona's capital-punishment sentencing scheme in 1990. The court ruled that the Sixth Amendment did not require that every finding of fact supporting a death sentence must be made by a jury rather than a judge.

But that was before the high court's ruling in a 2000 case called Apprendi v. New Jersey, in which a five-justice majority struck down a hate-crime statute that permitted a judge at sentencing to enhance a defendant's punishment beyond the maximum prison sentence authorized by the jury's verdict at trial.

"The Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, must be submitted to a jury and proved beyond a reasonable doubt," wrote Justice John Paul Stevens for the majority in the Apprendi case.

At the time of the decision, the majority said its ruling would not apply to death-penalty cases. But Justice Sandra Day O'Connor, in a dissent, said the case was a blueprint to overturn Arizona's capital-punishment sentencing system.

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