Antonin Scalia's crisis of conscience

In a case that could free hundreds from death row, the conservative Supreme Court justice finds that his support for the rights of juries clashes with his staunch advocacy of the death penalty.

By Dave Lindorff

Jun 12, 2002 | As the 30th anniversary of the Supreme Court decision temporarily halting capital punishment approaches, the current high court is about to rule on a case that could conceivably spare as many people from the gallows as were released from death row with that last historic decision.

With little fanfare, on April 22 the nine justices heard a case, Ring vs. Arizona, in which the defendant claims that because a judge used evidence not presented at trial to justify sentencing him to death following his murder conviction, he should not be executed. His attorney argues that the Sixth Amendment of the U.S. Constitution, and a decision by the high court two years ago, require such a decision to be made by a jury, not simply by a judge.

If the court rules in Timothy Ring's favor, it could potentially affect some 800 cases -- more than one-fourth of the total number of prisoners currently on death row -- in the nine states in which judges either always make the fateful sentencing decision between life in prison or death, or in which they are permitted to override a jury and impose a death sentence. That's more people than were on death row at the time of the Furman vs. Georgia decision on June 29, 1972, which temporarily ended capital punishment in America. At the minimum, it will overturn the death sentences of dozens of Arizona inmates, and perhaps hundreds nationwide.

The court's decision is likely to hinge on conservative Justice Antonin Scalia. That's because Scalia wrote a strong concurring opinion in the precedent Ring's lawyers are using -- a New Jersey drug case known as Apprendi vs. New Jersey, in which the justices ruled 5-4 that any new information obtained or used by a judge after a trial, as grounds for increasing the sentence of a convict, must first be considered and approved by a jury. In supporting the Apprendi decision, Scalia wrote: "Judges, it is sometimes necessary to remind ourselves, are part of the state." He added, "The founders of the American republic were not prepared to leave [criminal justice] to the state, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights."

Scalia, a strict constructionist, now seems to be squirming a little, given that his staunch jury-rights decision may be used to free death row prisoners. When the Supreme Court heard arguments in the case in April, Scalia seemed to be trying to back away from his earlier position.

But even some conservatives say Scalia was right in Apprendi, and he should come down on the same side in the Ring case.

"It seems to me that Apprendi and the Sixth Amendment to the Constitution apply in the Ring case," says Charles Key, a former Republican state representative from Oklahoma who is now executive director of Common Sense Justice, a national campaign aimed at enhancing the right of citizens to challenge laws passed by legislatures and Congress. "A jury should have to determine the facts in the case." Key says even though Apprendi was not a death penalty case, if the law says juries should have access to all the evidence in noncapital sentencing decisions, "it makes no sense to give the government the power over taking a human life."

"The question for Justice Scalia is whether he will have the courage of his Apprendi convictions even though it will mean making what is for him an abhorrent result -- striking down Arizona's death penalty law," says Edward Lazarus, a former federal prosecutor now in private practice in Los Angeles who writes for FindLaw.

Amazingly, the dramatic Ring case has received little media attention -- and that's just fine with the plaintiff. In fact, Andrew Hurwitz, the Phoenix lawyer who argued Ring's case before the Supreme Court, asked the usual organizations that might have been expected to file friend-of-the-court briefs and to crank up their publicity machines to refrain from joining his effort. He apparently didn't want the justices who are considering the case to be bombarded with media scare stories about hundreds of convicted murderers getting new trials.

Says Hurwitz: "We steered people away from filing amicus briefs because, based on my experience, unless they really add something to your case, they don't help. I really wanted to control what was being said." Hurwitz knows what it's like to be on the other side, being swamped by amicus briefs. As a young lawyer he clerked for the late Supreme Court Justice Potter Stewart.

The Ring case involves a prisoner who, in 1995, was convicted by an Arizona court of being a ringleader in the fatal 1994 robbery of an armored truck in which the driver was shot dead. Although Ring was never placed at the scene of the crime during the course of the trial, he was found to have played a key role in the planning of the robbery, and was thus convicted of felony murder by a jury, a crime for which the maximum penalty is death. But the jury split 6-6 on the charge of premeditation.

Given that in the U.S. it is almost unheard of for someone to be executed who didn't have a direct hand in a killing, it is unlikely that Ring would have gotten a death sentence if that had been the end of it. But when it came time for the judge to hold a sentencing hearing on Ring's case, new evidence was presented -- one of his accomplices testified that Ring had been the shooter. Based on that new information, which was never heard by the jury, the judge sentenced Ring to death.

And that seems to fly in the face of Apprendi vs. New Jersey, in which Scalia argued that the jury's right to review information used by a judge to sentence a convict is rooted in common law. Now, Ring's attorney Hurwitz is arguing that the court's Apprendi decision ought equally to apply to evidence used by a judge to sentence someone to death.

Next Page: Arizona's argument: "A death penalty wasn't a surprise in this case"

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