NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
Go to Federal Manuals Table of Contents - Go to Capital Punishment Table of Contents

Chapter 4: Capital Punishment Handbook: Sentencing Phase Issues

        4.6 Role Of The Jury And Judge
               4.6.1  Right of Capital Defendant to Jury Determination of Any Fact Leading to Increase in Maximum Punishment
                          4.6.1.1  Retroactivity of Ring v. Arizona
                         4.6.1.2  Advisory Jury
               4.6.2  Resentencing By Judge Or Jury

4.6.1  Right of Capital Defendant to Jury Determination of Any Fact Leading to Increase in Maximum Punishment

In Spaziano v. Florida, 468 U.S. 447 (1984), the Supreme Court ruled that the Sixth Amendment does not guarantee that the death sentence be determined by a jury. The Court stated that nothing in the constitutional safeguards against arbitrary and discriminatory application of the death penalty requires that the sentence be imposed by a jury and the purposes of the death penalty are not frustrated by or inconsistent with a sentencing scheme where the imposition of the death sentence is determined by a judge.  In Walton v. Arizona, 497 U.S. 639 (1990), the Court specifically held that a sentencing scheme in which a judge alone determines the death sentence, based on aggravating and mitigating circumstances, is constitutional. In addition to Arizona, in the Ninth Circuit Idaho and Montana have judge-based capital sentencing. In Nevada if the defendant pleads guilty or waives a jury trial or if the penalty phase jury is unable to reach a unanimous verdict, the supreme court appoints a three-judge panel to conduct the required penalty hearing and determine a sentence.

The Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), however, raised issues as to the continuing validity of the Walton decision. The Apprendi Court struck down a New Jersey hate crime statute that increased the exposure for a second degree felony from a 10 year maximum sentence to a 20 year maximum sentence. The statute provided for the extended term if the prosecutor proved to a judge (as opposed to a jury) the elements of the hate crime statute by a preponderance of the evidence. The Court held that the Fourteenth Amendment right to due process and the Sixth Amendment right to a jury trial, taken together, require that any factual determination required to increase a sentence that otherwise could not be imposed without the factual determination must be proven beyond a reasonable doubt to a jury.

In Ring v. Arizona, 536 U.S. 584 (2002), the Supreme Court held that Walton and Apprendi are irreconcilable and overruled Walton to the extent that it allowed a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. The Supreme Court reasoned that because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense” (Apprendi, 530 U.S. at 494 n. 19), the Sixth Amendment requires that they be found by a jury. The Court held that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. The Court pointed out that 29 of 38 states in which there is a death penalty generally commit sentencing decisions to juries, and that other than Arizona, only four States commit both capital sentencing factfinding and the ultimate sentencing decision entirely to judges: Colorado (Colo. Rev. Stat § 16-11-103 (2001) (three-judge panel); Idaho (Idaho Code § 19-2515 (Supp. 2001)); Montana (Mont. Code § 46-18-301 (1997)); and Nebraska (Neb. Rev. Stat. § 29-2520 (1995)). The Court observed that the right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the factfinding necessary to put a defendant to death.

Ring v. Arizona, 536 U.S. 584 (2002) (holding that capital defendants are entitled to jury determination of any fact on which legislature conditions increase in their maximum punishment; also holding that Walton and Apprendi are irreconcilable and overruling Walton to extent that it allowed sentencing judge, sitting without jury, to find aggravating circumstance necessary for imposition of death penalty).

Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding, in the context of noncapital sentencing, that the Due Process Clause requires that any factual determination that is required to increase a sentence that otherwise could not be imposed without the factual determination must be proven beyond a reasonable doubt to a jury).

Walton v. Arizona, 497 U.S. 639 (1990) (holding Sixth Amendment not violated by sentencing scheme in which judge alone determines aggravating and mitigating circumstances and imposes sentence), overruled by Ring v. Arizona, supra. Baldwin v. Alabama, 472 U.S. 372 (1985) (upholding as constitutional later repealed Alabama death penalty statute requiring that jury must fix sentence at death if aggravating circumstances are found but then leaving the trial judge, after considering aggravating and mitigating circumstances, total sentencing discretion).

Spaziano v. Florida, 468 U.S. 447 (1984) (holding state may allocate sentencing power as it wishes between the judge and jury since Constitution does not require a death sentence to be imposed by a jury).

Carriger v. Lewis, 971 F.2d 329 (9th Cir. 1992) (applying Richmond, 948 F.2d 1473 (9th Cir. 1992), in rejecting challenge to Arizona’s judge-only sentencing scheme), cert. denied, 507 U.S. 992 (1993).

Clark v. Ricketts, 958 F.2d 851 (9th Cir.) (applying Richmond, 948 F.2d 1473 (9th Cir. 1992), in rejecting equal protection challenge to Arizona’s sentencing scheme), cert. denied, 506 U.S. 838 (1992).

Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1990) (rejecting equal protection challenge to Arizona’s judge-only sentencing scheme), rev’d on other grounds, 506 U.S. 40 (1992).

Michael Mello, Taking Caldwell v. Mississippi Seriously: The Unconstitutionality of Capital Statutes that Divide Sentencing Responsibility Between Judge and Jury, 30 B.C. L. Rev. 283 (1989) (examining constitutionality of capital sentencing schemes that divide sentencing responsibility between judges and juries, focusing on Caldwell, arguing–based on Caldwell’s ruling regarding diminished jury responsibility, see supra §§ 4.4.6, 4.5.6–that when responsibility for death sentence is divided, no one bears ultimate responsibility, and thus such schemes are unconstitutional).

Welsh S. White, Fact-finding and the Death Penalty: The Scope of a Capital Defendant’s Right to Jury Trial, 65 Notre Dame L. Rev. 1 (1989) (analyzing capital defendant’s right to jury at both guilt and sentencing phases).

The majority opinion in Ring v. Arizona, 536 U.S. 584 (2002) (see § 4.6.1), did not discuss the retroactivity of the decision. In Schriro v. Summerlin, 542 U.S. 348 (2004), the Supreme Court held that Ring does not apply retroactively to cases already final on direct review. The Supreme Court held that the Ring decision is properly classified as procedural, rather than substantive, because it did not alter the range of conduct or the class of persons subject to the death penalty in Arizona, but only the method of determining whether the defendant engaged in that conduct. The Court also held that the rule in Ring does not fall within Teague’s exception for a watershed rule of criminal procedure, since the Court could not confidently say that judicial factfinding seriously diminishes accuracy.

Schriro v. Summerlin, 542 U.S. 348 (2004) (holding that Ring v. Arizona did not apply retroactively to cases already final on direct review; also holding that (1) that the Ring decision is properly classified as procedural, rather than substantive; and (2) the Ring rule does not fall under the second exception under Teague for watershed rules of criminal procedure).

State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003) (en banc) (holding in consolidated cases involving all defendants sentenced to death who had matters pending on direct appeal at the time of Ring, that changes in state’s capital sentencing statutes were procedural in nature and that resentencing these defendants under new statutes would not violate the ex post facto clauses of state or federal constitutions, nor did double jeopardy principles preclude resentencing them; also holding that Sixth Amendment principles of Apprendi/Ring do not require that Enmund-Tison findings be made by jury; ruling that failure to submit capital aggravating factors to jury was not structural error mandating reversal).

State v. Towery, 204 Ariz. 386, 64 P.3d 828 (en banc) (holding that Ring v. Arizona does not apply retroactively to those defendants whose cases have become final; holding that new rule announced in Ring did not meet either of two exceptions to Teague’s general rule that new rules do not apply to cases that have become final; also holding under an Allen v. Hardy analysis the rule did not apply retroactively where (1) the rule was not designed to improve the accuracy of criminal trials; (2) the Arizona justice system acted in good faith in applying the rule in Walton; and (3) applying the rule would greatly disrupt the administration of justice and noting that Arizona has approximately 90 prisoners on death row whose cases are final), cert. dismissed, 539 U.S. 986 (2003).

State v. Whitfield, 107 S.W.3d 253 (Mo. 2003) (holding that Missouri statutory scheme that permitted trial judge to make independent determination to impose sentence of death if jury deadlocked violated defendant’s right to have jury make findings of fact that are predicate to death eligibility and that requirements of Ring were retroactive; applying approach of Linkletter v. Walker and Stovall v. Denno and not a Teague analysis, court considered following factors: (1) purpose to be served by new rule; (2) extent of reliance by law enforcement on old rule; and (3) effect on administration of justice of retroactive application of new rule, in holding Ring to be retroactive; setting aside sentence of death and resentencing defendant to life imprisonment without eligibility for probation, parole or release except by act of governor).

Colwell v. State, 118 Nev. 807, 59 P.3d 463 (2002) (en banc) (holding that Ring does not apply retroactively on state collateral review of a finalized death penalty imposed by three-judge panel; alternatively, concluding that Ring was inapplicable here because petitioner had pleaded guilty and waived his right to a jury trial).

NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006

Prior to the Ring decision, Alabama, Delaware, Florida and Indiana had chosen to retain a sentencing jury but only to render an advisory “recommendation” of the proper sentence, which the court then reviewed and upon occasion may override. In Spaziano v. Florida, the Supreme Court, finding this scheme constitutional, held that the constitution does not require a jury recommendation to be final because the constitution does not provide the right to a jury determination of death in the first place. However, in Ring v. Arizona, the Supreme Court held that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. See § 4.6.1 above for further discussion of Ring. In response to Ring, the legislatures of Delaware and Indiana amended the statutes in question: (1) the Delaware statute was amended to provide that the jury’s role at the narrowing phase was transformed from one that was advisory into one that is now determinative as to the existence of any statutory aggravating circumstances; and (2) the Indiana statute was amended to provide that if the jury reaches a sentencing decision, the court “shall sentence the defendant accordingly.”

Harris v. Alabama, 513 U.S. 504 (1995) (holding Alabama statute requiring judge to “consider” jury verdict rather than to give it “great weight” nevertheless adequately channels sentencer discretion so as to prevent arbitrary results; Eighth Amendment does not require state to define weight which sentencing judge must give advisory jury verdict).

Sochor v. Florida, 504 U.S. 527 (1992) (holding Supreme Court will not presume jury error where general verdict at sentencing phase came after consideration of aggravating factor that was unsupported by the evidence because the judge reviewed the jury’s sentencing determination).

Hildwin v. Florida, 490 U.S. 638 (1989) (reaffirming Spaziano, finding no constitutional requirement that advisory jury make specific factual finding that sufficient aggravating circumstances exist to warrant death penalty).

Spaziano v. Florida, 468 U.S. 447 (1984) (holding state law that allows judge to override jury’s recommendation of life sentence is constitutional, no requirement that jury recommendation be final; law does not constitute double jeopardy and does not violate requirement of reliability in capital sentencing).

Ortiz v. State, 869 A.2d 285 (Del.) (holding that Delaware’s hybrid form of sentencing, which allows the jury to find the defendant death eligible and then allows a judge to impose the death penalty once the defendant is found to be death eligible, satisfies the Sixth Amendment of the United States Constitution as construed in Ring v. Arizona), cert. denied, 126 S. Ct. 55 (2005).

Johnson v. State, 904 So.2d 400 (Fla. 2005) (holding that Ring did not apply retroactively in Florida).

Bottoson v. Moore, 833 So.2d 693 (Fla.) (per curiam opinion with one justice concurring, two justices concurring specially, and four justices concurring in result only) (holding that petitioner was not entitled to relief in light of Ring decision, where U.S. Supreme Court had stayed petitioner’s execution and placed petitioner’s case in abeyance while Court decided Ring, and then summarily denied petitioner’s certiorari petition and lifted stay without directing Florida Supreme Court to reconsider petitioner’s case in light of Ring, and where court in Ring did not address alleged areas of irreconcilable conflict in precedent concerning Florida’s capital sentencing statute), cert. denied, 537 U.S. 1070 (2002); to same effect, see King v. Moore, 831 So.2d 143 (Fla) (per curiam opinion with two justices concurring, and four justices concurring in result only), cert. denied, 537 U.S. 1067 (2002).

Michael Mello & Ruthann Robson, Judge over Jury: Florida’s Practice of Imposing Death over Life in Capital Cases, 13 Fla. St. U. L. Rev. 31 (1985) (critiquing Florida’s death penalty statute allowing judicial override of jury recommendation of life sentence).

Abe Muallem, Note, Harris v. Alabama: Is the Death Penalty in America Entering the Fourth Phase?, 22 J. Legis. 85 (1996) (discussing constitutionality of Alabama death penalty statute and analyzing Harris majority and dissenting opinions).

Jeffrey A. Wellek, Note, Eighth Amendment–Trial Court May Impose Death Sentence Despite Jury’s Recommendation of Life Imprisonment: Spaziano v. Florida, 75 J. Crim. L. & Criminology 813 (1984) (reviewing Spaziano and arguing Eighth Amendment does require jury-determined sentence of life or death).

The Eleventh Circuit has held that there is no constitutional right to a jury resentencing on rehearing. Proffitt v. Wainwright, 756 F.2d 1500 (11th Cir. 1985). However, this holding is affected by the decision in Ring v. Arizona, in which the Supreme Court held that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. See § 4.6.1 for further discussion of Ring v. Arizona.

Magill v. Dugger, 824 F.2d 879, 894 (11th Cir. 1987) (holding where resentencing was without a new advisory jury and trial court in imposing death specifically relied on jury’s recommendation, errors in original penalty phase of trial impermissibly tainted subsequent sentence).

Funchess v. Wainwright, 772 F.2d 683, 692 (11th Cir. 1985) (holding resentencing by jury not required where initial sentencing proceeding was “free of serious error”), cert. denied, 475 U.S. 1031 (1986).

Proffitt v. Wainwright, 756 F.2d 1500 (11th Cir. 1985) (holding because there is no constitutional entitlement to have a jury consider the sentence in the first instance, there is no constitutional requirement to have advisory jury as well as judge consider the penalty on rehearing).