What is Arizona’s capital sentencing system? 24 A R I Z O N A AT T O R N E Y In response to Furman v. Georgia, 3 Arizona modified its capital statute so that judges alone make the capital decision.4 This statute was upheld against constitutional challenge in Walton v. Arizona5; most of the 128 people on Arizona’s death row received their sentence after Walton upheld the constitutionality of our death sentencing statute. Idaho and Montana also have single judges making the death decision. Colorado and Nebraska have panels of judges doing so. Alabama, Delaware and Florida allow the jury to make a sentencing recommendation prior to the judge making the ultimate decision. These states, along with Arizona, account for 800 of the 3,711 people on death row nationwide as of January 1, 2002. The other 29 states with the death penalty, along with the federal government and the military, have juries making the capital sentencing decision. Those other states are: Arkansas, California, Connecticut, Georgia, Illinois, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South J U LY/A U G U S T 2 0 0 2 W W W. A Z B A R . O R G Ring Cycle Continues Arizona Capital Sentencing at U.S. Supreme Court BY JOAN HULS Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington and Wyoming.6 Recent opinions by the U.S. Supreme Court in Jones v. United States7 and Apprendi v. New Jersey8 have held that anything that enhances a person’s potential sentence, except for prior convictions, must be determined by a jury, not a judge. There is dicta in both opinions about capital sentencing, but the Court refrained from addressing what impact, if any, Jones and Apprendi have on judicial capital sentencing as well as the continued viability of Walton. The Court granted certiorari in Ring v. Arizona to address this issue. A.R.S. § 13-703 contains the mechanics of Arizona’s capital sentencing scheme. Persons found guilty of first-degree murder can be punished by death or life imprisonment.9 However, the W W W. A Z B A R . O R G M ost attorneys practice their entire career without setting foot in our nation’s highest court. Recently, several Arizona attorneys had the opportunity to do so in an important death penalty case. Timothy Stuart Ring v. Arizona1 was argued in the United States Supreme Court on April 22, 2002. The case was “fast tracked” with an expedited briefing and argument schedule. By the time you read this, the Court may already have issued its opinion or will be doing so shortly. The importance of Ring is that it may affect the 128 people on Arizona’s death row and possibly the 800 on death rows in states with similar capital sentencing schemes (see box below). return of the guilty verdict by itself does not allow the trial judge to sentence someone to death. A hearing conducted before the court alone to determine the existence or nonexistence of aggravating and mitigating circumstances is required before any special verdict pronouncing sentence shall be returned.10 The issue is whether this process violates the rule set forth in Apprendi. Ring argued that because the judge alone determines the aggravating circumstances, the Apprendi rule is violated, because the jury’s verdict by itself cannot result in a death sentence. The state argued that there is no Apprendi conflict because a criminal defendant charged with first-degree murder can be sentenced to life imprisonment or death, and the defendant is put on notice of that fact by the indictment. J U LY/A U G U S T 2 0 0 2 A R I Z O N A A T T O R N E Y 25 Arizona Attorney General Janet Napolitano and Kent Cattani of the AG’s Office represented the state; Mr. Ring was represented pro bono by Andrew Hurwitz and John Stookey from Osborn Maledon. So important is this case that many distinguished Arizona attorneys and judges attended the argument. They included Vice Chief Justice Ruth McGregor of the Arizona Supreme Court, ASU law school Dean Patricia White, former Solicitor General Scott Bales, and Lewis and Roca partner John Frank, a longtime mentor of Janet Napolitano. Read excerpts from the oral argument at pp. 28-29. The odds of having a case that goes to the United States Supreme Court were likened to lightning striking, according to Andy Hurwitz. Ring was the second time he has argued a case there. Napolitano agreed that having the high court grant certiorari is like a bolt of lightning. Given the expedited scheduling in this case, both sides had less time to prepare than usual for oral argument in the high court. The reply brief was due only one week before the scheduled argument. Both prepared vigorously with a series of mock arguments. Arguing before the high court can be unlike other oral arguments, Hurwitz says. The number of justices on the court leads to an increase in the diversity of questions and issues that arise. Add to that the understanding of the issues by the justices and the preparedness of the participants and that mix creates a lively, spirited and thorough debate of the issues at hand. This is precisely what occurred on April 22. The justices were very active and asked many questions of the advocates. All but Justice Thomas asked at least one question, with Justices Breyer and Scalia being the most active. Questions focused on the potential effect of applying Apprendi to capital sentencing and the interplay between the Sixth Amendment jury trial guarantee and the Eighth Amendment 26 A R I Z O N A AT T O R N E Y J U LY/A U G U S T 2 0 0 2 cruel and unusual restrictions set by the Court itself regarding the death penalty. The Court peppered Hurwitz with questions about the cases that would have to be overruled if the defendant’s position were adopted. And Hurwitz acknowledged that the capital sentencing systems of “eight or nine states” would be implicated by the Court’s ruling. Chief Justice Rehnquist also asked about the effect on the U.S. Sentencing Guidelines: Hurwitz said he believed there would be no effect on the use of downward departures (p. 7, ll. 23–24), but Napolitano argued that it would “throw into question the Federal Sentencing Guidelines and their structure” (p. 31, ll. 5–6). Justice Stephen Breyer asked Hurwitz whether he would adopt an argument voiced in the past by Justices Stewart, Powell and Stevens. Noting that that argument was never accepted by a majority of the Court, Hurwitz declined to do so, but said that if the argument were open, he would adopt it. Chief Justice Rehnquist then said, “Well, presumably you would make any argument that’s open to you.” To courtroom laughter, Hurwitz responded, “We’re open.” Justice Souter questioned Napolitano at length about whether the Court would have to apply a different analysis to every “departure or innovation” in capital sentencing to determine whether the historic jury trial requirement applies. And he asked whether the point of a jury trial wasn’t “to place the jury between the defendant and the State” (p. 29, ll. 11–13). Justice Breyer appeared critical of the State’s view that, in this case, the lack of jury fact finding was a distinction without a difference: “The difference is that the individual juror does not have to take the individual responsibility of saying I as a human being have decided that this person should be sentenced to death. Now, that’s quite a difference” (p. 33, ll. 14–18). Janet Napolitano has argued before the World Court,2 but this was her first experience in the nation’s highest court. In the World Court, the parties had four days of argument, with the first day lasting six W W W. A Z B A R . O R G hours. The judges there asked no questions. The U.S. Supreme Court allows each party 30 minutes, and the justices ask a lot of questions. In Ring, says John Frank, the justices “went with the flow of the argument as counsel intended it. This was oral argument at its best. Both Andy Hurwitz and Janet Napolitano were a great credit to the Arizona Bar.” Both lawyers praised each other’s performance and enjoyed the argument. “I argue a lot of appellate cases,” said Hurwitz, “and I always second-guess myself [afterward]. And this is one of those where I didn’t. I felt I got to make all the points I wanted to.” Napolitano also was moved by the process. “You stand at this podium from which every oral argument in the Supreme Court has been made since 1935; it’s an intense and incredible experience.” Whether the capital sentencing scheme stands up to constitutional scrutiny will be known by the end of the summer. Joan Huls is a Law Clerk for Chief Justice Charles Jones at the Arizona Supreme Court. Any opinions expressed in this article are attributable solely to the author. endnotes 1. United States Supreme Court No. 01-488. 2. The World Court case of Germany v. United States also involved two men on Arizona’s death row. Walter and Karl LaGrand were German citizens. Germany sought to stop the executions in the World Court based on violations of the Vienna Convention on Consular Relations. They were both executed in 1999. See the Arizona Department of Corrections Web site at www.adc.state.az.us/DeathRow/ Executed.htm. 3. 408 U.S. 238 (1972). 4. A.R.S. § 13-703. 5. 497 U.S. 639 (1990). 6. All statistical information noted here was obtained from the Death Penalty Information Center, which can be found online at www.deathpenaltyinfo.org and DEATH ROW U.S.A., Winter 2002, a quarterly publication of the NAACP Legal Defense and Educational Fund, Inc. 7. 526 U.S. 227 (1999). 8. 530 U.S. 466 (2000). 9. A.R.S. § 13-1105(C). 10. Id. § 13-703(C), (D), (E). W W W. A Z B A R . O R G J U LY/A U G U S T 2 0 0 2 A R I Z O N A A T T O R N E Y 27 SlowGrilled Included here are a few excerpts from the oral argument in Ring v. Arizona. To read the complete Supreme Court transcript in PDF format, go to www.supremecourtus. gov, oral arguments, argument transcripts, 01-488, Ring v. Arizona. The basic constitutional principle that underlies the Sixth Amendment … as this Court articulated in both Jones and Apprendi, is the notion that before you’re handed over to the State and before the State is allowed to exact the maximum punishment permitted by law, a jury of your peers is allowed to you to find those facts to put the State in that position. (p. 14, ll. 21–25, p. 15, ll. 1–3) We are not suggesting that jury sentencing is required. We are suggesting that jury fact finding is required. (p. 19, ll. 10–12) The State has chosen to make specific facts necessary for the imposition of the ultimate sentence, and when the State chooses to do so, whether it chooses to do so because it merely thinks it’s a good idea or it chooses to do so because the Constitution of the United States requires it to do so, the same Sixth Amendment principle ought to obtain. And that Sixth Amendment principle is that you’re entitled to have the jury find those facts. (p. 48, ll. 10–17) ANDREW HURWITZ 28 A R I Z O N A A T T O R N E Y J U LY/A U G U S T 2 0 0 2 W W W. A Z B A R . O R G There are some facts that the legislature is entitled to find which don’t go to the definition of the crime but go to the punishment. And this Court has never held that there’s a Sixth Amendment right to jury sentencing. (p. 29, ll. 5–8) I think the ultimate question is, what is the role of the jury? Was that jury’s role embraced by Arizona? Yes. Did the role of the jury in this case change at any time from what it was preFurman to post-Furman? No. Did the jury in this case know it was a death case? Yes. Did the defendant know it was a death case? Yes. Everyone knew it was a death case. A defendant such as Ring … has already received all the protections that the Sixth Amendment entitles him … to. And all that is going on here is a narrowing process where the judge’s discretion is actually being narrowed in sentencing, not broadened. (p. 39, ll. 8–13) (p. 46, ll. 8–14) ATTORNEY GENERAL JANET NAPOLITANO W W W. A Z B A R . O R G J U LY/A U G U S T 2 0 0 2 A R I Z O N A A T T O R N E Y 29