Can judges alone set death penalty?

That disagreement two years ago has now taken the form of Ring v. Arizona.

In most states, death-penalty cases are carried out in a two-stage process, with a jury first determining guilt and then the same jury later deciding whether the defendant should be put to death or face a lesser sentence like life in prison based on aggravating or mitigating circumstances.

But in Arizona and the eight other states, a judge plays the key role in making the final determination of life or death.

The Sixth Amendment affords criminal defendants a right to a trial by jury in which key elements of the crime must be proved beyond a reasonable doubt. But under both federal and state sentencing guidelines – and some death-penalty sentencing procedures – judges are afforded the power to enhance a sentence if they determine at a sentencing hearing that certain factors played a role in the crime.

In Ring's case, the trial judge sentenced Ring to death after hearing the uncorroborated testimony (at the sentencing hearing) of an alleged co-conspirator who identified Ring as both the triggerman and leader of the deadly robbery.

The co-conspirator did not testify at Ring's trial because he did not agree to cooperate with prosecutors until after Ring's conviction.

In a detailed examination of Ring's case, the Arizona Supreme Court found that there was not enough evidence presented at Ring's trial to justify a death sentence. "For all we know from the trial evidence, [Ring] did not participate in, plan, or even expect the killing," the court said in its ruling.

But the court upheld Ring's death sentence, because it said the co-conspirator had provided enough extra evidence to justify capital punishment.

Lawyers for Ring say his death sentence should be thrown out and Arizona's entire system of sentencing in death-penalty cases declared unconstitutional.

"Under Arizona law [Ring's] death sentence was not possible by virtue of the jury verdict alone, but instead was imposed because of factual findings made entirely by the trial judge," writes Andrew Hurwitz, a Phoenix lawyer representing Ring, in his brief to the Supreme Court justices.

If the jury verdict in Ring's case stood alone, his sentence would have been life in prison, not death, Mr. Hurwitz says.

Lawyers for the state counter that Ring's jury found him guilty of first-degree murder and that the punishment for that crime ranges from life in prison to death.

The trial judge did not impose a sentence in excess of the maximum allowed by law, says Kent Cattani of the Arizona Attorney General's Office in his brief to the court. "The prescribed statutory maximum for the crime Ring committed is death," he writes.

Mr. Cattani adds that Ring was aware from the start that he might receive the death penalty.

In the Apprendi case, however, the defendant learned at sentencing that his punishment had been increased beyond the maximum. "In contrast, the state charged Ring with, and convicted him of, a class one felony," Cattani writes. "He was on notice from the date of his indictment that he faced a possible death sentence."

A decision in the case is expected by late June.

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