Amicus Curiae Brief — Ring v. Arizona

MAR 27 22

ee -

—_

| on

| OFFICE OF THE CLERK |

No. 01-488

IN THE SUPREME COURT OF THE UNITED STATES

TIMOTHY STUART RING,

Petitioner,

Vv.

STATE OF ARIZONA,

Respondent.

On Writ of Certiorari to the

Supreme Court of the State of Arizona

BRIEF FOR AMICI CURIAE ALABAMA, COLORADO,

DELAWARE, FLORIDA, IDAHO, INDIANA,

MISSISSIPPI, MONTANA, NEBRASKA, NEVADA, NEW

YORK DISTRICT ATTORNEYS ASSOCIATION,

PENNSYLVANIA, SOUTH CAROLINA, UTAH,

VIRGINIA, IN SUPPORT OF RESPONDENT

BILL PRYOR

Attorney General

Alabama Office of the NATHAN A. FORRESTER

Attorney General Solicitor General

11 South Union Street A. VERNON BARNETT, IV *

Montgomery, AL 36130 Deputy Solicitor General

(334) 242-4317 * MICHAEL B. BILLINGSLEY

* Counsel of Record Deputy Solicitor General

Additional counsel for amici curiae listed on inside cover.

BEST AVAILABLE COPY

Ken Salazar

Attorney General of Colorado

1525 Sherman St., 7" Floor

Denver, CO 80203

M. Jane Brady

Attorney General of Delaware

Department of Justice

820 N. French St.

Wilmington, DE 19801

Robert A. Butterworth

Attorney General of Florida

The Capitol PL-01

Tallahassee, FL 32399-1050

Alan G. Lance

Attorney General of Idaho

P.O. Box 83720

Boise, ID 83720-0010

Steve Carter

Attorney General of Indiana

219 State House

Indianapolis, IN 46204

Mike Moore

Attorney General of

Mississippi

P.O. Box 220

Jackson, MS 39205

Mike McGrath

Attorney General of

Montana

Justice Building

P.O. Box 201401

Helena, MT 59620-1401

Don Stenberg

Attorney General of Nebraska

Department of Justice

2115 State Capitol

Lincoln, NE 68509

iBEST AVAILABLE COPY.

Frankie Sue Del Papa

Attorney General of Nevada

100 N. Carson Street

Carson City, NV 89701-4717

New York District Attorneys

Association

By: John C. Tunney, President

and Steuben County District

Attorney

3 East Pulteney Square

Bath, NY 14810

D. Michael Fisher

Attorney General of

Pennsylvania

16th Floor, Strawberry Sq.

Harrisburg, PA 17120

Charles M. Condon

Attorney General of South

Carolina

P.O. Box 11549

Columbia, SC 29211

Mark L. Shurtleff

Attorney General of Utah

236 State Capitol

Salt Lake City, UT 84114

Jerry W. Kilgore

Attorney General of Virginia

900 East Main Street

Richmond, VA 23219

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..........::+::::sseceseeeeerensennerenneseres ii

INTEREST OF AMICI CURIAE ......0+::::sseeseseersreenerersenerens 1

SUMMARY OF ARGUMENT........:c-+:::s+eserserereernnenennesennens 2

ARGUMENT. ......:0:-:sscsssessssersencsesssessssssnsnssnanessnsnnnnensanennerss 3

I. This Court's Ruling in Walton v. Arizona — That

Judges May Perform the Channeling Function

Required By Furman v. Georgia Through the

Application of Statutory Agegravators — Has Not

Proven In Any Way Unworkable...........+-:::++s++++++" 7

Il. The States Have Placed Considerable Reliance Upon

the Validity of Walton ............sssserrereneenssnnnennnnenenens 8

III. This Court’s Ruling in Apprendi v. New Jersey Did

Not Undermine the Validity of Walton...............+-+ 10

A. The common law history to which this Court

referred in Apprendi confirms that judges may take

into account facts not found by the jury so long as

they do not impose a sentence beyond the maximum

prescribed for the Crime ...........+:+s-sssssrsersreersnrensenee 11

B. Because judicial capital sentencing does not increase

the maximum punishment to which the defendant is

exposed following the verdict of guilt, it is consistent

with Apprendi..........cscssssssssesrseenenenensenersnsenenenanenenes 20

CONCLUSION. ......:::ssssessseereessersnesersnesensnnansennsnnsennanennnens 29

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Adarand Constructors, Inc. v. Pena,

a a 5

Agostini v. Felton,

TERE es EN ce NN Bh 3

Apprendi v. New Jersey,

| | LLL RE aE passim

Beck v. Alabama,

a 22, 25

Blystone v. Pennsylvania,

REET eM Ea eo SD ED 9

Brightwell v. State,

I a 17

Cabana v. Bullock,

I iain niierieinli ais i)

City of Boerne v. Flores,

521 ETI eee Se ET Hm 5

Clemons v. Mississippi,

ERI NSDL ene Tae el A, Ae i)

Commonwealth v. Smith

1 Mass. 245, 1804 WL 709 (Mass. 1804) ..000..0..0..ccccceeceeee 15

Dickerson v. United States,

TIT AIR a TE A ER 5, 10

Duncan v. Louisiana,

ERECT ren etme 12

Enmund v. Florida,

Pd Eee 9

Ex parte Giles,

ON) of 12

Furman v. Georgia, .

eee passim

George v. People,

gp eee 13

Godfrey v. Georgia,

rs Ce ccencternternticenenmnsseniennnmmmenenesenss 4, 23

Gregg v. Georgia,

iy IT cicnsinsncnsinnnnistestiaaminenamsieunnennaimnaunaniae 3, 22

Harris v. Alabama,

ES ee 10

Hildwin v. Florida,

Ec ininscunentnstenimmasensumnmminmmenseseeaannn 9, 25

Hohn v. United States,

Ee, I ccrccnssccssscensenmsenssntsnsesemmnensoommmnsnmnenenents 5

Hope v. Commonwealth,

ere 17

Hubbard v. United States,

A eee 6, 8

In re Shannon B.,

22 Cal. App. 4th 1235,

BY Gal, Birt. BB GBD CIGD .nccccessccceccsceccseeccccseccssesescesccsses 14

Jones v. State,

Go Gi, BEE Gi, Bcc ccvcccceccnscccesccevescecccscccccccssecccess 17

lv

Jones v. State,

416 S.W.2d 412 (Tex. Crim. App. 1967) ...........ccccccceeceeeee 13

Jones v. United States,

Us I li ia 6

Lacy v. State,

UU SI icin attain 18

Lewis v. Jeffers,

TI i aia ate l ae 4

Maynard v. Cartwright,

LE ERIE eae ON NEE AEC 4, 22

McMillan v. Pennsylvania,

EEA ES RPMI eee ere nem een 12, 22

Paterson v. State,

674 N.E.2d 628 (Ind. 1906)......................csccccccccccocssssssecees 13

Planned Parenthood of Southeastern

Pennsylvania v. Casey,

aN a eT passim

Poland v. Arizona, -

TIENEN Tome 1, 3, 23, 28

Proffitt v. Florida,

TT ne meee 9, 12, 21, 26

Roberts v. Louisiana,

TTI RNA aa aS CIN T= 26

South Central Bell Telephone v. Alabama,

ENE La SS aR Sa 6

Spaziano v. Florida,

CEE Re eee passim

Vv

State v. Cohen,

ESE, | an 13

State v. Hamey,

OR MD On 13

State v. Hoffman,

851 P.2d 934 (daho 1998) ..............ccccsseceseesecessereeeeeeenees 13

State v. Perley,

SR OO 17

State v. Ring,

DDD , x 25, 27

State v. Wedge,

Qe 13

United States v. Gaudin,

OL EU) 10

United States v. Tucker,

PE eee 15, 18

Walton v. Arizona,

GF EE, Ga Ce ccscccscnsncsesencsesnsnscsssasenmsansesnenscesene passim

Williams v. New York,

C—O — 15, 19, 20

Wisconsin v. Mitchell,

| OE 27, 28

Witte v. United States,

ll | fd ee 7

Woods v. State,

169 S.W. 558 (Temn. 1914)...............cccccccsesereeeseeeeeeeeeeeenees 13

Woodson v. North Carolina,

Y Li § |, 25

Statutes

A.R.S. § 13-1105(c) (2001)............cccccccccessssccccccccccsesccerseees 27

Mass.Rev.Stat., ch. 126, § 17 (1836)...........cccccccccceeseeeeeee 17

Other Authorities

Brief of the United States

in Harris v. United States,

EAE eR A ee COR LEM Te 11

1 Bishop, Criminal Procedure

ESERIES ee eS BO ek IY Rie 17

1 Bishop, Criminal Procedure

I a ai a 17

1 Bishop, Criminal Procedure

I a a 17

Black’s Law Dictionary 143 (6th ed. 1991).............0ccc0000. 22

Joel Samaha, Fixed Sentences and

Judicial Discretion in Historical Perspective,

15 William Mitchell L. Rev. 217 (1989).............0.ccccceceeees 14

{

1

INTEREST OF AMICI CURIAE

Amicus curiae State of Alabama, together with

fourteen other states and organizations, submits this brief

in support of the State of Arizona, urging this Court to

affirm the judgment of the Arizona Supreme Court in this

case and to reaffirm this Court’s ruling in Walton v.

Arizona, 497 U.S. 639 (1990). At issue in this case is the

effect of Apprendi v. New Jersey, 530 U.S. 466 (2000), on

Arizona’s practice of requiring its judges, after a jury

verdict finding a defendant guilty of a capital crime, to

find specific aggravating circumstances not found by the

jury before imposing a sentence of death. Many of amici

are states that also involve their judges in the capital

sentencing process. They have done so in reliance upon

this Court’s approval of judicial capital sentencing in

Walton and other cases. While the ruling in this case may

not necessarily invalidate those states’ various capital

sentencing schemes, they nonetheless have a strong

interest in seeing that this Court’s capital jurisprudence,

ensuring the validity of judicial capital sentencing,

remains intact.

In addition, even. those states that place capital

sentencing authority in the jury have an interest in the

issue whether sentencing proceedings following a

conviction for capital murder fall outside the holding of

Apprendi. This Court has recognized that aggravating

circumstances are “not separate penalties or offenses, but

are ‘standards to guide the making of [the] choice’

between the alternative verdicts of death and life

imprisonment.” Poland v. Arizona, 476 U.S. 147, 156

(1986). A contrary determination — that aggravating

circumstances are, in fact, elements of the offense that

must be submitted to a jury and proven beyond a

2

reasonable doubt — may also affect the validity of certain

jury capital sentencing schemes.

+

SUMMARY OF ARGUMENT

The practice of requiring a trial judge to find

aggravating circumstances in order to impose capital

punishment was not only affirmed by this Court in

Walton v. Arizona but developed in response to Furman v.

Georgia and this Court’s subsequent Eighth Amendment

jurisprudence. The rule of Furman and Walton

authorizing the practice is a workable one, upon which

many amici have relied in numerous cases,- and it is

consistent with the principle articulated by this Court two

terms ago in Apprendi v. New Jersey: “Other than the

fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proven

beyond a reasonable doubt.” 530 U.S. 466, 490 (2000).

The rule should not be invalidated.

In Apprendi, this Court explained that, once a jury

has found a defendant guilty of all the elements of an

offense that by statute entitles the prosecution to a

certain maximum penalty, a judge may then decide

whether to impose that maximum penalty, or a lesser one,

taking into account a variety of facts not necessarily

submitted to or considered by the jury. Because the

maximum penalty in a capital case is death, Apprendi

permits judges to apply statutory aggravators in capital

sentencing. 530 U.S. at 496-497 (2000). Moreover, this

Court has previously and repeatedly recognized that

capital aggravating circumstances are not elements of the

offense; rather, they are guidelines to channel the

sentencer’s discretion in determining whether to impose

3

the death penalty. See, e.g., Poland v. Arizona, 476 U.S.

147, 156 (1986) (aggravating circumstances are not ©

separate penalties or offenses but rather are standards to

guide the making of the choice between the alternative

verdicts of death and life imprisonment).

The doctrine of stare decisis thus counsels against the

overruling of Walton and the invalidation of judicial

capital sentencing. (Amici understand it is not judicial

capital sentencing per se, but judicial capital sentencing

on the basis of mandatory statutory aggravators not

found by the jury, that is at issue in this case. For the

sake of shorthand, however, amici will refer to this

practice throughout this brief as “judicial capital

sentencing.”) A decision must do more than raise

questions about the theoretical underpinnings of a prior

decision in order to warrant its overruling. It must

render the prior decision “manifestly erroneous,” a “mere

survivor of obsolete constitutional thinking.” Planned

Parenthood of Southeastern Pennsylvania v. Casey, 505

U.S. 833, 857 (1992) (plurality opinion). To reject a line

of jurisprudence absent “bona fide changes in our

decisional law” would do “violence to the legitimacy we

derive from reliance on” the doctrine of stare decisis.

Agostini v. Felton, 521 U.S. 203, 239 (1997). This Court

should accordingly reaffirm Walton v. Arizona, permitting

judicial capital sentencing, and affirm the judgment of the

Arizona Supreme Court.

ARGUMENT

In Furman v. Georgia, this Court ruled that

unconstrained discretion in capital sentencing violated

the Eighth Amendment. 408 U.S. 238 (1972) (per

curiam). In response, at least thirty-five states adopted

new capital sentencing procedures. Gregg v. Georgia, 428

U.S. 153, 179 (1976). “Since Furman,” this Court has

4

“insisted that the channeling and limiting of the

sentencer’s discretion in imposing the death penalty is a

fundamental constitutional requirement for sufficiently

minimizing the risk of wholly arbitrary and capricious

action.” Maynard v. Cartwright, 486 U.S. 356, 362 (1988)

(citing Gregg v. Georgia, 428 U.S. at 189 (plurality

opinion of Stewart, Powell, and Stevens, JJ.)). To

accomplish this task, states must utilize “clear and

objective standards that provide specific and detailed

guidance, and that make rationally reviewable the

process for imposing a sentence of death.” Lewis v.

Jeffers, 497 U.S. 764, 774 (1990) (quoting Godfrey v.

Georgia, 446 U.S. 420, 428 (1980) (plurality opinion)

(internal quotation marks omitted)).! Nine states, all of

whom are amici, have elected to meet these requirements

by assigning to the trial judge, at least in part, the

responsibility of considering and applying sentencing

factors. These states are Alabama, Arizona, Colorado,

Delaware, Florida, Idaho, Indiana, Montana, and

Nebraska.2 In Walton v. Arizona, this Court upheld

! “Over the course of the past 15 years, this Court has assumed the

role of rulemaking body for the States’ administration of capital

sentencing — effectively requiring capital sentencing proceedings

separate from the adjudication of guilt, . . . dictating the type and

extent of discretion the sentencer must and must not have... .”

Walton v. Arizona, 497 U.S. 639, 657 (1990) (Scalia, J., concurring in

part and concurring in the judgment) (citations omitted).

* See Ala. Code §§ 13A-5-43 - 13A-5-52 (LEXIS through 2001

Legis. Sess.); Ariz. Rev. Stat. Ann. § 13-703 (West & West Supp. 2001);

Colo. Rev. Stat. § 16-11-103 (LEXIS through 2001 Legis. Sess.); Del.

Code Ann. tit. 11, § 4209 (LEXIS through 2001 Legis. Sess. 141st Gen.

Assemb.); Fla. Stat. § 921.141 (LEXIS through 2001 Legis. Sess.);

Idaho Code § 19-2515 (LEXIS through 2nd Legis. Sess. 55th Legis.);

5

Arizona’s scheme, thereby affirming the constitutional

validity of judicial capital sentencing. 497 U.S. 639, 655

(1990).

“When the political branches of the Government act

against the background of a judicial interpretation of the

Constitution already issued, it must be understood that in

later cases and controversies the Court will treat its

precedents with the respect due them under settled

principles, including stare decisis, and contrary

expectations must be disappointed.” City of Boerne v.

Flores, 521 U.S. 507, 536 (1997). Stare decisis is “the

preferred course because it promotes the evenhanded,

predictable, and consistent development of legal

principles, fosters reliance on judicial decisions, and

contributes to the actual and perceived integrity of the

judicial process.” Hohn v. United States, 524 U.S. 236,

251 (1998) (quoting Payne v. Tennessee, 501 U.S. 808, 827

(1991)). “Although adherence to precedent is not rigidly

required in constitutional cases, any departure from the

doctrine of stare decisis demands special justification.”

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 231

(1995) (quoting Arizona v. Rumsey, 467 U.S. 203, 212

(1984)).8

Ind. Code Ann. § 35-50-2-9 (LEXIS through 2001 Legis. Sess.); Neb.

Rev. Stat. Ann. §§ 29-2520 — 29-2523 (LEXIS through 2001 Legis.

Sess.); Mont. Code Ann. §§ 46-18-301 — 46-18-306 (LEXIS through

2001 legislation); but see Mont. Code Ann. § 46-1-401 (2001).

3 See also Dickerson v. United States, 530 U.S. 428, 443 (2000)

(“(E]ven in constitutional cases, the doctrine carries such persuasive

force that we have always required a departure from precedent to be

supported by some ‘special justification”) (quoting United States v.

International Business Machines Corp., 517 U.S. 843, 856 (1996);

6

In determining whether this “special justification”

exists, this Court’s “judgment is customarily informed by

a series of prudential and pragmatic considerations

designed to test the consistency of overruling a prior

decision with the ideal of the rule of law, and to gauge the

respective costs of reaffirming and overruling a prior

case.” Planned Parenthood, 505 U.S. at 854 (plurality

opinion of O’Connor, Kennedy, and Souter, JJ.). The

considerations relevant to this analysis include the

workability of the precedent in question, relevant reliance

on the precedent, and the relation of the precedent to

other changes in the law. See South Central Bell

Telephone v. Alabama, 526 U.S. 160, 166 (1999) (citing

Planned Parenthood, 505 U.S. at 854-55). Because

judicial capital sentencing has proven workable, was

created in reliance upon this Court’s interpretation of the

Eighth Amendment, and has not been undermined by

recent precedent including Apprendi, this Court should

reaffirm its constitutional viability. To do otherwise

would be an exercise in “laying traps for unwary States,

and generating a fundamental uncertainty in the law that

shows no signs of ending or even diminishing.” Walton,

497 U.S. at 673 (Scalia, J., concurring in part and

concurring in the judgment); see also Jones v. United

States, 526 U.S. 227, 271 (1999) (Kennedy, J., dissenting)

Hubbard v. United States, 514 U.S. 695, 712 n. 11 (1995) (“Stare

decisis is usually the wise policy, because in most matters it is more

important that the applicable rule of law be settled than that it be

settled right. This is commonly true, even where the error is a matter

of serious concern, provided correction can be had by legislation”)

(quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932)

(Brandeis, J., dissenting)).

a ae lah ed

> oe

—

_—_—_

7

(“[S]tates should not be confronted with an unexpected

rule mandating that what were once factors bearing upon

the sentence must now be treated as offense elements for

determination by the jury”).

I. This Court’s Ruling in Walton v. Arizona — That

Judges May Perform the Channeling Function

Required By Furman v. Georgia Through the

Application of Statutory Aggravators — Has Not

Proven In Any Way Unworkable.

The first question posed by the doctrine of stare

decisis is “whether the rule has proved to be intolerable

simply in defying practical workability.” Planned

Parenthood, 505 U.S. at 854 (citing Swift & Co. v.

Wickham, 382 U.S. 111, 116 (1965)).4 The purpose of the

channeling requirement in Furman and subsequent cases

was to make capital sentencing more equitable and

uniform.’ The Walton rule permitting judges to perform

this function by applying statutory aggravators is clear

4 See also Witte v. United States, 515 U.S. 389, 406 (1995) (Scalia,

J., concurring) (finding no violation of the Double Jeopardy Clause

based upon a refusal to give stare decisis effect to jurisprudence that

“is not only wrong but unworkable as well”) (citing Planned

Parenthood, 505 U.S. at 982-84 (Scalia, J., concurring in judgment in

part and dissenting in part)).

5 See Walton, 497 U.S. at 664 (Scalia, J., concurring in part and

concurring in the judgment) (“Pursuant to Furman, and in order to

achieve a more rational and equitable administration of the death

penalty, we require that States channel the sentencer’s discretion by

clear and objective standards that provide specific and detailed

guidance”) (citations and quotations omitted).

8

and practical. Ring offers neither argument nor evidence

that judicial capital sentencing has in any way proven

difficult or contrary to the purposes of Furman. While it

may have engendered opposition, it has in no way proven

unworkable. See Planned Parenthood, 505 U.S. at 855

(mere opposition is insufficient to establish that

jurisprudence is, or has become, “unworkable”).

II. The States Have Placed Considerable Reliance

Upon the Validity of Walton.

The second question posed by stare decisis is “whether

the rule is subject to a kind of reliance that would lend a

special hardship to the consequences of overruling and

add inequity to the cost of repudiation.” Planned

Parenthood, 505 U.S. at 854. “Stare decisis has special

force when legislators or citizens ‘have acted in reliance

on a previous decision, for in this instance overruling the

decision would dislodge settled rights and expectations or

require an extensive legislative response.” Hubbard v.

United States, 514 U.S. 695, 714 (1995) (quoting Hilton v.

South Carolina Public Railways Comm'n, 502 U.S. 197,

202 (1991)). “The doctrine of stare decisis protects the

legitimate expectations of those who live under the law,

and, as Alexander Hamilton observed, is one of the means

by which exercise of ‘an arbitrary discretion in the courts’

is restrained. Who ignores it must give reasons, and

reasons that go beyond mere demonstration that the

overruled opinion was wrong (otherwise the doctrine

would be no doctrine at all).” Hubbard v. United States,

514 U.S. at 716 (Scalia, J., concurring in part and

concurring in the judgment) (quoting The Federalist No.

78, p. 471 (C. Rossiter ed. 1961)).

While Apprendi involved a question not previously

resolved, this case raises a claim confronted and rejected

by the Court directly in Walton and indirectly on-

9

numerous other occasions under both the Sixth and

Eighth Amendments.’ This precedent is “integrated into

6 See, e.g. Proffitt v. Florida, 428 U.S. 242, 252 (1976) (plurality

opinion of Stewart, Powell, and Stevens, JJ.) (“This Court .. . has

never suggested that jury sentencing in a capital case is

constitutionally required[,] [aJnd it would appear that judicial

sentencing should lead, if anywhere, to greater consistency in the

imposition at the trial court level of capital punishment because a trial

judge is more experienced in sentencing than a jury and therefore is

better able to impose sentences similar to those imposed in analogous

cases”); Spaziano v. Florida, 468 U.S. 447 (1984) (Sixth Amendment

not offended by judge imposing sentence of death where jury has

recommended sentence of life imprisonment); Cabana v. Bullock, 474

U.S. 376 (1985) (Constitution permits appellate court — rather than

requires jury or trial court — to determine if the intent element

required by Enmund v. Florida, 458 U.S. 782 (1982), has been

satisfied); Poland v. Arizona, 476 U.S. 147, 156 (1986) (sentencing

factors are “not separate penalties or offenses, but are ‘standards to

guide the making of [the] choice’ between the alternative verdicts of

death and life imprisonment”) (quoting Bullington v. Missouri, 451

U.S. 430, 438 (1981)); Hildwin v. Florida, 490 U.S. 638 (1989)

(reaffirming rejection of claim that the Sixth Amendment requires a

jury trial on the sentencing issue of life or death); Clemons v.

Mississippi, 494 U.S. 738 (1990) (Neither Sixth nor Eighth

Amendments preclude appellate court from upholding a death

sentence based in part on an invalid or improperly defined aggravating

circumstance either by re-weighing of aggravating and mitigating

evidence or by harmless error review); Walton v. Arizona, 497 U.S. 639

(1990) (States are not required to denominate capital “aggravating

circumstances” as “elements” of the offense or permit only a jury to

determine existence of such circumstances); Blystone v. Pennsylvania,

494 U.S. 299, 306-307 (1990) (Constitution does not require a State to

ascribe any specific weight to particular factors either in aggravation

or mitigation to be considered by the sentencer); Harris v. Alabama,

10

the fabric of the law” and has “engendered substantial

reliance.” Adarand, 515 U.S. at 233; see also Planned

Parenthood, 505 U.S. at 856. In reliance upon this

precedent, many states have enacted or continued to

employ legislation providing for judicial capital

sentencing. Pursuant to these statutes, approximately

800 inmates are currently under a sentence of death.’

Overruling Walton would cast doubt on the validity of a

great number of these sentences, obtained and defended

at considerable effort and expense. The reliance that the

states have placed upon Walton is thus immense.

III. This Court’s Ruling in Apprendi v. New Jersey

Did Not Undermine the Validity of Walton.

The third question posed by stare decisis is “whether

related principles of law have so far developed as to have

left the old rule no more than a remnant of abandoned

doctrine.” Planned Parenthood, 505 U.S. at 855; cf.

Dickerson v. United States, 530 U.S. 428, 443 (2000) (this

Court has overruled precedents “when subsequent cases

have undermined their doctrinal underpinnings”); United

States v. Gaudin, 515 U.S. 506, 521 (1995) (this Court has

513 U.S. 504 (1995) (Eighth Amendment not violated by trial judge

overriding jury life recommendation without according “great weight”

to that jury recommendation as required by the state law of Alabama's

sister state, Florida).

’ This total broken down by State is as follows: Alabama 188:

Arizona 128; Colorado 6; Delaware 17; Florida 385; Idaho 20; Indiana

39; Montana 6; and, Nebraska 6. See NAACP Legal Defense and

Educational Fund, Inc., Quarterly Report by the Criminal Defense

Project, Death Row U.S.A. at 21-22 (Fall 2001). These numbers have

fluctuated slightly (e.g., Colorado presently has five death row inmates

— two sentenced by a trial judge), but remain essentially correct.

1l

overruled a precedent if it “has been proved manifestly

erroneous, and its underpinnings eroded, by subsequent

decisions of this Court”). Walton is hardly a “remnant of

abandoned doctrine.” To the contrary, the capital

sentencing scheme upheld in Walton comports fully with

the holding and reasoning of Apprendi. Apprendi did not

modify the longstanding rule that judges can find facts,

including facts not considered or found by the jury, for

purposes of imposing a sentence within a prescribed

sentencing range. This is all that happens when a judge

is assigned the responsibility of performing the

channeling function required by the Eighth Amendment.

A. The common law history to which this Court

referred in Apprendi confirms that judges

may take into account facts not found by the

jury so long as they do not impose a sentence

beyond the maximum prescribed for the

crime.

Two Terms ago in Apprendi, this Court reviewed the

common law history that underlies the Sixth Amendment

and concluded that a judge could not sentence a

defendant beyond the range prescribed by the criminal

statute under which the defendant was tried and

convicted. 530 U.S. 466 (2000). This Court cautioned,

however, that “nothing in this history suggests that it is

impermissible for judges to exercise discretion — taking

into consideration various factors relating both to offense

and offender — in imposing a judgment within the range

prescribed by statute.” Jd. at 481. Amici believe that this

statement is historically accurate, constitutionally correct,

and sufficient to dispose of this case. See generally Brief

of the United States in Harris v. United States, No. 00-

10666, at 31-36 (discussing how history supports this

12

Court’s decision in McMillan v. Pennsylvania, 477 U.S. 79

(1986)).

In Duncan v. Louisiana, 391 U.S. 145 (1968), this

Court made clear that the Sixth Amendment right to trial

by jury is the right to have a jury pass on the ultimate

question of guilt or innocence, not punishment. “The

Sixth Amendment never has been thought to guarantee a

right to a jury determination of’ the criminal sentence.

Spaziano v. Florida, 468 U.S. 447, 459 (1984); see also

Proffitt v. Florida, 428 U.S. 242, 252 (1976) (This Court

“has never suggested that jury sentencing is

constitutionally required. [Rather] it would appear that

judicial sentencing should lead, if anything, to even

greater consistency in the imposition at the trial court

level of capital punishment, since a trial judge is more

experienced in sentencing than a jury, and therefore is

better able to impose sentences similar to those imposed

in analogous cases”).

Nor does state constitutional law provide such a right.

In Alabama, juries have had no state constitutional duty

or right to participate in criminal sentencing.* Likewise,

amici are unaware of any court of last resort in any

jurisdiction that has extended a constitutional right to

* See Ex parte Giles, 632 So. 2d 577, 580 (Ala. 1993) (“By the

common law, the jury determined merely the guilt or innocence of the

prisoner; and, if their verdict was guilty, their duties were at an end

They had nothing whatever to say as to the punishment to be inflicted.

The court alone determined what the punishment should be, its extent

and its severity; with that the jury had nothing to do. Their whole

duty was discharged when the verdict of guilty was pronounced”)

(quoting Fields v. State, 47 Ala. 603, 606 (1872)).

13

trial by jury to sentencing proceedings in a criminal

matter.®

: ' er to

Rather than vesting a jury with the authority

impose punishment upon those it found guilty of criminal

activity, Anglo-American jurisdictions have traditionally

® See Paterson v. State, 674 N.E.2d 528, 541 (ind. 1996) (stating

that “the right to trial by jury under the Indiana Constitution is

limited to the question of guilt or innocence"); State v. Hoffman, 851

PSS 60s, 6 Chie ID Cae a ee

providing that “the right of trial by jury shall remain inviolate .

stating “it is well settled that punishment in a capital case is to

determined by a judge rather than a jury”); State v. Cohen, 604 A.2d

846, 852 (Del. 1992) (holding that “defendants are not guaranteed the

right under the Delaware Constitution Have a jury determine

punishment in a capital case”); State v. Wedge, 652 P.2d 773, 776 (Or.

1982) (stating that the Oregon constitutional right to jury trial does

not “mandate jury participation in sentencing”); Jones v. State, hows

S.W.2d 412, 414 (Tex. Crim. App. 1967) (stating that the

constitutional right of trial by jury does not encompass the right to

have the jury assess the punishment”); Woods v. State, 169 S.W. 558,

559 (Tenn. 1914) (interpreting the state constitutional right to sng

jury and stating that “it is not essential that the jury assess

punishment, unless the statutes of the state so direct’); gg

Hamey, 67 S.W. 620, 621-625 (Mo. 1902) (interpreting

constitutional provision providing that “the right of trial by jury bg

heretofore enjoyed shall remain inviolate” and stating that it “is

limited to the trial of the question of guilt or innocence”); George v.

People, 47 N.E. 741, 744 (Ill. 1897) (Gnterpreting the constitutional

provision providing “the right of trial by jury as heretofore enjoyed

shall remain inviolate” and holding that “the language of the

constitution was mever intended to confer upon the jury a

constitutional right to fix the term of imprisonment on the trial of a

person indicted for a felony”).

14

relied upon the trial court to make such sentencing

determinations independent of the jury. As early as the

first two decades of the Massachusetts Bay Colony,

sentencing authority rested in the sound discretion of the

trial court. Joel Samaha, Fixed Sentences and Judicial

Discretion in Historical Perspective, 15 William Mitchell

L. Rev. 217, 220-22 (1989).!° As this Court recognized in

Apprendi, “judges in this country have long exercised

discretion [taking into consideration various factors

relating both to offense and offender] in imposing

sentence within statutory limits in the individual case.”

530 U.S. at 481. In fact, “both before and since the

American colonies became a nation, courts in this country

and in England practiced a policy under which a

sentencing judge could exercise a wide discretion in the

sources and types of evidence used to assist him in

determining the kind [and] the extent of punishment to be

© See also Apprendi, 530 U.S: at 519 (Thomas, J., concurring)

_ (noting judges’ broad discretion in setting amount of fine and length of

imprisonment for misdemeanors, but praising determinant

punishment and ‘discretion .. . regulated by law”) (quoting 4 W.

Blackstone, Commentaries on the Law of England 371-72 (1769)); see

also In re Shannon B., 22 Cal. App. 4th 1235, 1240, 27 Cal. Rptr. 2d

800, 803 (1994) (citing 1 Joseph Chitty, The Criminal Law 711 (2d ed.

1826); 1 J. Stephen, A History of the Criminal Law of England, ch. 13

(1883)) (punishment for many English capital felonies was

discretionary, with a wide variety of sanctions available other than

death, which was “left to the wisdom of the court”).

15

imposed within limits fixed by law.” Williams v. New

York, 337 U.S. 241, 246 (1949).

The common law cases and nineteenth century

criminal procedure treatise cited in Justice Thomas's

concurring opinion in Apprendi, 530. US. at 502, are

entirely consistent with this principle. The

Massachusetts larceny statute applied in Commonwealth

v. Smith (cited by Justice Thomas, id.) imposed a

sentence of treble damages — three times the amount

stolen. 1 Mass. *245, 1804 WL 709. The court in Smith

held that it could not sentence the defendant for stealing

goods whose value was not alleged in the indictment. The

court thus eliminated all sentencing discretion on its part

and put the questions of guilt and sentence entirely in the

hands of the jury. But this holding should not be seen as

questioning the common law legitimacy of judicial

sentencing discretion. Had the judge in Smith not

insisted that the amount stolen be alleged in the

11 This Court’s “periodic recognition of judges’ broad discretion in

sentencing — since the 19th-century shift in this country from statutes

providing fixed-term sentences to those providing judges discretion

within a permissible range . . . has fhowever] been regularly

accompanied by the qualification that that discretion was bound by the

range of sentencing options prescribed by the legislature.” Apprendi,

530 U.S. at 481-82 (citations omitted); see also United States v. Tucker,

404 U.S. 443, 447 (1972) (“The Government is also on solid ground in

asserting that a sentence imposed by a federal district judge, if within

statutory limits, is generally not subject to review”); Williams, 337 U.S.

at 247 (the judge's task in sentencing is to impose, “within fixed

statutory or constitutional limits[,] the type and extent of punishment

after the issue of guilt” has been resolved).

16

indictment, he would have arrogated to himself the power

to impose a literally infinite range of punishment, based

on a finding of fact neither considered by the jury nor

necessarily proven beyond a reasonable doubt.

This is a far different case from one in which the

statute assigns a fixed range of punishment — even one

with a very high maximum — but leaves to the trial judge

the discretion to sentence the convicted defendant, on the

basis of a variety of factors not necessarily considered by

the jury, within that fixed range. The treatise cited by

Justice Thomas makes this point clear:

The reader should distinguish between the

foregoing doctrine, and the doctrine stated

elsewhere that, within the limits of any

discretion as to the punishment which the law

may have allowed, the judge, when he

pronounces sentence, may suffer his discretion to

be influenced by matter shown in aggravation or

mitigation, not covered by the allegations of the

indictment. Where the law permits the heaviest

punishment, on a scale laid down, to be inflicted,

and has merely committed to the judge the

authority to interpose its mercy and inflict a

punishment of a lighter grade, no rights of the

accused are violated though in the indictment

there is no mention of mitigating circumstances.

The aggravating circumstances spoken of cannot

swell the penalty above what the law has

provided for the acts charged against the

prisoner, and they are interposed merely to check

the judicial discretion in the exercise of the

permitted mercy. This is an entirely different

thing from punishing one for what is not alleged

against him.

17

1 Bishop, Criminal Procedure § 85, at 54 (2nd ed. 1872)

(emphasis added) (internal citation omitted); see also 1

Bishop, Criminal Procedure § 85, at 50 (3rd ed. 1880); 1

Bishop, Criminal Procedure § 85, at 50 (4th ed. 1895).

As Justice Thomas recounted in Apprendi, 530 U.S. at

503 & n. 3, Massachusetts amended its larceny statute in

1836 to create two different ranges of punishment,

depending on whether the amount stolen exceeded $100.”

While the amount stolen thus remained an element of the

crime because it changed the applicable range of

punishment, Hope v. Commonwealth, 50 Mass. 134

(1845), the fact that the judge now had discretion to

sentence within the applicable range was not problematic.

Other states likewise had property crime statutes in the

nineteenth century that gave judges the discretion to

sentence within statutorily prescribed ranges.'° _ This

12 “Every person who shall commit the offence of larceny, by

stealing of the property of another any money, goods or chattels [or

other sort of property], if the property stolen shall exceed the value of

one hundred dollars, shall be punished by imprisonment in the state

prison, not more than five years, or by fine not exceeding six hundred

dollars, and imprisonment in the county jail, not more than two years;

and if the property stolen shall not exceed the value of one hundred

dollars, he shall be punished by imprisonment in the state prison or

the county jail, not more than one year, or by fine not exceeding three

hundred dollars.” Mass.Rev.Stat., ch. 126, § 17 (1836) (emphasis

added).

18 See, e.g., Brightwell v. State, 41 Ga. 482, 483 (Ga. 1871)

(Georgia arson statute provided for judicial sentencing discretion

within a prescribed range); Jones v. State, 63 Ga. 141, 143 (Ga. 1879)

(Georgia burglary statute provided for discretionary sentencing within

prescribed ranges of punishment); State v. Perley, 30 A. 74 (Me. 1894)

18

same system of discretionary judicial sentencing within

legislatively prescribed boundaries continues to be a

dominant feature of the American criminal justice system.

See Apprendi, 530 U.S. at 481-83, 497 (affirming the legal

principle of discretionary judicial sentencing within a

range prescribed by statute).

Within the American federal system, a judge could

thus “appropriately conduct an inquiry broad in scope,

largely unlimited either as to the kind of information he

may consider, or the source from which it may come.”

United States v. Tucker, 404 U.S. 443, 446 (1972).* This

(Maine robbery statute provided that “punishment for the crime may

be as high as imprisonment for life, and it may be as low as any term

of years, which might be two”); Lacy v. State, 1862 WL 951, at *2-3

(Wis. 1862) (Wisconsin arson statute allowing for discretionary judicial

sentencing within statutorily prescribed ranges).

14 Tucker cites the following federal cases: United States v. Trigg,

392 F.2d 860, 864 (7th Cir. 1968) (“That some of the considerations

affecting the court's exercise of informed discretion in fixing the

sentence did not stem from the presentence report or from what the

court observed from trial demeanor or testimony does not, of itself,

invalidate the sentence”); Davis v. United States, 376 F.2d 535, 538

(5th Cir. 1967) (recognizing that it is permissible for the judge to

consider presentence data concerning prior convictions in determining

sentence); Cross v. United States, 354 F.2d 512, 514-515 (D.C. Cir.

1965) (holding that sentence imposed by the trial judge was not

improper even though it was based in part upon knowledge gleaned by

the judge during the trial of a co-defendant); United States v. Doyle,

348 F.2d 715, 721 (2nd Cir. 1965) (“The narrowing of the indictment to

a single count limits the maximum punishment the court can impose

but not the scope of the court’s consideration within the maximum”);

United States v. Magliano, 336 F.2d 817, 822 (4th Cir. 1964) (“After

conviction, everything of possible pertinency may be considered,

— AO ee PI en meee

ee

19

discretion was bounded only by the requirement that the

sentence fall within the statutory limits. Apprendi, 530

U.S. at 467; see also Tucker, 404 U.S. at 447 (recognizing

that the broad latitude afforded a federal judge in making

a sentencing determination is clearly circumscribed by

the absolute requirement that the sentence fall with the

statutorily prescribed range).

though it has no competency as proof of what it purports to indicate”);

Fed. R. Crim. Pro. 32(a)(2) (providing for the consideration, by federal

judges, of presentence investigation reports containing information

about a convicted criminal as it proves helpful in sentencing); Williams

v. New York, 337 U.S. at 247 (A judge’s “task within fixed statutory or

constitutional limits is to determine the type and extent of punishment

after the issue of guilt has been determined .. . [aJnd modern concepts

individualizing punishment have made it all the more necessary that a

sentencing judge not be denied an opportunity to obtain pertinent

information by a requirement of rigid adherence to restrictive rules of

evidence properly applicable to the trial”); North Carolina v. Pearce,

395 U.S. 711, 723 (1969) (“A trial judge is not constitutionally

precluded, in other words, from imposing a new sentence, whether

greater or less than the original sentence, in the light of events

subsequent to the first trial that may have thrown new light upon the

defendant's ‘life, health, habits, conduct, and mental and moral

propensities”).

20

B. Because judicial capital sentencing does not

increase the maximum punishment to which

the defendant is exposed following the

verdict of guilt, it is consistent with

Apprendi.

It is thus well established that the Constitution is not

offended by a state legislature attaching a range of

punishment to a particular offense and giving the trial

judge discretion to select a punishment within that range.

Apprendi acknowledged and reaffirmed that principle.

530 U.S. at 481 (“[Njothing . . . suggests that it is

impermissible for judges to exercise discretion — taking

into consideration various factors relating both to offense

and offender — in imposing a judgment within the range

prescribed by statute”). Moreover, until this Court struck

down the use of unguided discretionary capital sentencing

schemes in Furman, no distinction was made between

offenses punishable by death and those carrying lesser

criminal sanctions." See Williams, 337 U.S. at 251

18 It is true that throughout this Nation’s history — including the

present — many states have placed the authority to impose a death

sentence in the jury. See Spaziano v. Florida, 468 U.S. at 472

(Stevens, J., concurring in part and dissenting in part) (noting that “of

42 jurisdictions that employed discretionary capital sentencing in

1948, only 3 did not require its imposition through jury determinations

which the trial judge could not disregard” and “[a]t the time of

Furman, only 2. . . permitted a death sentence to be imposed without

the consent of a jury”). Unlike that of the Eighth Amendment,

however, this Court has never identified an “evolving” standard

governing the meaning of the Sixth Amendment fight to trial by jury.

That a majority of state legislatures chose, at a particular time, to

place capital sentencing authority in the jury did not, therefore, make

sentencing in a capital case part of the Sixth Amendment right to trial

21

(upholding sentence of death imposed following jury's

recommendation of life imprisonment; “[lJeaving a

sentencing judge free to avail himself of out-of-court

information . . . does secure to him a broad discretionary

power”). Furman, however, “which has come to stand for

the principle that a sentencer’s discretion to return a

death sentence must be constrained by specific standards,

so that the death penalty is not inflicted in a random and

capricious fashion,” changed that rule in capital cases.

Walton, 497 U.S. at 657 (Scalia, J., concurring in part and

concurring in the judgment). Capital punishment is, in

fact, the only punishment that constitutionally may not

be imposed pursuant to an unguided discretionary

sentencing scheme. '¢

Sentencing proceedings following a conviction for

capital murder necessarily fall outside the holding of

Apprendi that “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a

by jury. Spaziano, 468 U.S. at 459 (“[T]he Sixth Amendment never

has been thought to guarantee a right to a jury determination of [the

appropriate punishment to be imposed on an individual]”); id. at 463,

n. 8 (rejecting proposition that “because juries may sentence, they

constitutionally must do so”).

16 For example, this Court has never read the Eighth Amendment

to require that “after a person is convicted... , there shall be an

informed, focused, guided, and objective inquiry into the question

whether he should be sentenced to” life in the penitentiary. Proffitt,

428 U.S. at 259. In a capital case, however, following a conviction,

“(t]he sentencer, whether judge or jury, has a constitutional obligation

to evaluate the unique circumstances of the individual defendant.”

Spaziano, 468 U.S. at 459.

22

jury and proved beyond a reasonable doubt.” Apprendi,

530 U.S. at 490. A capital offense is one that, by

definition, carries a maximum sentence of death. Black's

Law Dictionary 143 (6th ed. 1991) (defining capital case

as “one for which death penalty may, but need not

necessarily, be imposed”). When a judge makes factual

findings to support the imposition of the death penalty, he

is not enhancing the sentencing range for which a

defendant would otherwise be ineligible. Rather, the

judge is simply conducting a process designed to channel

and rationalize the imposition of the death penalty.

“It was in McMillan v. Pennsylvania that this Court,

for the first time, coined the term ‘sentencing factor’ to

refer to a fact that was not found by a jury but could affect

the sentence imposed by the judge.” Apprendi, 530 U.S.

at 485 (internal citation omitted). Although the term may

have been “coined” in McMillan, “sentencing factors” are

in the realm of capital punishment a product of this

Court’s Eighth Amendment jurisprudence.

More specifically, the birth of capital “sentencing

factors” can be traced to this Court’s decision in Furman.

“In Furman, the Court held unconstitutional a Georgia

statute that vested the jury with complete and unguided

discretion to impose the death penalty or not as it saw fit,

on the ground that such a procedure led to the ‘wanton’

and ‘freakish’ imposition of the penalty.” Beck v.

Alabama, 447 U.S. 625, 639 (1980) (Stewart, J.,

concurring) (quoting Furman, 408 U.S. at 310). “Since

Furman, [this Court has] insisted that the channeling and

limiting of the sentencer’s discretion in imposing the

death penalty is a fundamental constitutional

requirement for sufficiently minimizing the risk of wholly

arbitrary and capricious action.” Maynard v. Cartwright,

486 U.S. 356, 362 (1988) (citing Gregg v. Georgia, 428

23

U.S. 153, 189 (1976)) (plurality opinion of Stewart,

Powell, and Stevens, JJ.). Compliance with the Court's

decisions required the creation of sentencing factors.

Indeed, without them, it would not be possible to “channel

the sentencer’s discretion by ‘clear and objective

standards that provide specific and detailed guidance.

Godfrey v. Georgia, 446 U.S. at 428 (plurality opinion).

There is, therefore, plainly a distinction between

capital aggravating circumstances and the type of

“sentencing enhancement” at issue in Apprendi. Unlike a

“sentencing enhancement,” aggravating circumstances do

not serve to increase the range of punishment to which

one is exposed following a finding of guilt. An individual

found guilty of a capital offense is eligible for and exposed

to a death sentence upon conviction. Aggravating

circumstances provide the channeling function required

by the Eighth Amendment; they do not increase the

sentencing range to include that for which a defendant

would otherwise be ineligible. The unique purpose served

by aggravating circumstances has been repeatedly

upheld. They are “not separate penalties or offenses, but

are ‘standards to guide the making of [the] choice

between the alternative verdicts of death and life

imprisonment.” Poland, 476 U.S. at 156 (quoting

Bullington v. Missouri, 451 U.S. 430, 438 (1981)). An

aggravating circumstance cannot, therefore, be

“appropriately characterized as ‘a tail which wags the dog

of the substantive offense.” Apprendi, 530 U.S. at 495

(quoting McMillan, 477 U.S. at 88).

In Apprendi, the Court noted: “Any possible

distinction between an ‘element’ of a felony offense and a

‘sentencing factor’ was unknown to the practice of

criminal indictment, trial by jury, and judgment of the

court as it existed during the years surrounding our

24

Nation’s founding.” Apprendi, 530 U.S. at 478 (footnote

omitted). What may have been unknown at the time of

the founding has, however, become a constitutional

necessity in cases where the offense is punishable with a

sentence of death. A State may not impose the death

penalty simply by increasing the number and specificity

of the elements required to convict. In the capital context,

therefore, the “distinction between ‘elements’ and

‘sentencing factors” is not “constitutionally novel” but

constitutionally required. Compare Apprendi, 530 U.S. at

494 (referring to the “constitutionally novel and elusive

distinction between ‘elements’ and ‘sentencing factors”).

Apprendi did not render “the term ‘sentencing factor’

[ ] devoid of meaning.” 530 U.S. at 494 n. 19. Rather,

“(t]he term appropriately describes a circumstance, which

may be either aggravating or mitigating in character, that

supports a specific sentence within the range authorized

by the jury’s finding that the defendant is guilty of a

particular offense.” Jd. This is precisely the manner in

which “sentencing factors” are used in the context of

Arizona’s capital punishment statute.

Ring was charged with first-degree murder. There is :

no dispute that he was properly convicted of that offense

pursuant to a jury trial wherein the jurors found the

existence of each element of the offense beyond a

reasonable doubt. There can also be no dispute that the

offense carried with it the possible imposition of a death

sentence. Unlike Apprendi, where the finding at issue

“increased — indeed, it doubled — the maximum range

within which the judge could exercise his discretion,” id.

at 474, the aggravating factors in Ring’s case merely

served to guide the judge’s discretion within the

established range. Accordingly, the Arizona sentencing

process and this Court’s decision in Walton are fully

25

consistent with Apprendi. It is this reading of Apprendi,

and not that suggested by Ring, which reconciles | the

holding with the longstanding history of judicial

discretion in sentencing proceedings, the understanding

that “the Sixth Amendment never has been thought to

guarantee a right to a jury determination” of the

sentence, Spaziano, 468 U.S. at 459, and the Court's

specific application of that understanding | to the

imposition of the death penalty. See, e.g., Hildwin v.

Florida, 490 U.S. 638, 640 (1989) (acknowledging and

affirming prior rejection of “claim that the Sixth

Amendment requires a jury trial on the sentencing issue

of life or death”).

Nor is a different result compelled by the Arizona

Supreme Court's statement: “In Arizona, a defendant

cannot be put to death solely on the basis of a jury's

verdict, regardless of the jury's factual findings.” State v.

Ring, 25 P.3d 1139, 1151 (Ariz. 2001). This statement is

true everywhere, not just in Arizona, because of the

Eighth Amendment. A defendant can never be sentenced

to death based on the “jury’s verdict alone.” Sentencing

factors in a capital case are required because, no matter

how a State defines the elements of a capital offense, the

Eighth Amendment requires additional proceedings

before a sentence of death may be imposed.

Indeed, “[sJome States responded to Furman by

making death the mandatory punishment for certain

categories of murder.” Walton, 497 U.S. at 661 (Scalia, J.,

concurring). The Court, however, rebuffed those efforts,

invalidating the statutes on the basis that they “raised

the same possibility that the death penalty would be

imposed in an arbitrary and capricious manner as the

statute held invalid in Furman.” Beck, 447 U.S. at 640;

see also Woodson v. North Carolina, 428 U.S. 280 (1976);

26

Roberts v. Louisiana, 428 U.S. 325 (1976). While the class

of individuals who are subject to the death penalty may

be narrowed through the classification of elements

defining a capital offense, the Eighth Amendment

requires more. “/A/fter a person is convicted of first-

degree murder, there shall be an informed, focused,

guided, and objective inquiry into the question whether

he should be sentenced to death.” Proffitt, 428 U.S. at 259

(emphasis added). Capital punishment is, therefore,

unique in that it is the only punishment requiring — not

pursuant to a statute passed by a state legislature, but by

mandate of this Court — that further factual findings be

made after a jury has found the existence of every

element necessary to convict. The sentencing

considerations required by the Eighth Amendment should

not and cannot be classified as elements of the offense. It

is impossible to incorporate “the unique circumstances of

the individual defendant” as an element of the offense.

Spaziano, 468 U.S. at 459.

Accordingly, even in states that use judicial

sentencing in capital cases but require the jury first to

find aggravating circumstances, the judge must still make

a determination that those aggravating circumstances

outweigh any mitigating circumstances. This

determination is constitutionally necessary to the

imposition of the death penalty. Reading Apprendi to

require that any finding necessary to impose a death

sentence be found by a jury would therefore invalidate

any sort of meaningful judicial sentencing in capital

cases. It would require not only the overruling of Walton

but the repudiation of the reasoning in numerous other

decisions of this Court (see n. 6).

Ring's contention, that his death sentence violates

Apprendi because the “jury verdict alone” is insufficient to

27

support a death sentence under Arizona law, is also

premised on a misunderstanding of the meaning of

“statutory maximum” in Apprendi. The statutory

maximum is determined by assessing the permissible

range of punishment for a particular offense. Under

Arizona law, first degree murder is classified as a class 1

felony and, as such, may be punished by death or life in

prison. A.R.S. § 13-1105(c) (2001). Thus, a defendant is

“exposed” to a sentence of death upon the jury's guilty

verdict. Here, the jury's verdict exposed Ring to a

sentencing range with a maximum of death.

Finally, contrary to Ring’s assertion, this Court is not

bound by the Arizona Supreme Court’s statement that the

range of punishment for a conviction of first degree

murder is “on the basis of the verdict alone is life

imprisonment with the possibility of parole or

imprisonment for ‘natural life’ without the possibility of

parole.” Ring, 25 P.3d at 1151. In Wisconsin v. Mitchell,

this Court considered a claim that Wisconsin’s sentencing

enhancement for discriminatory intent violated the First

Amendment. 508 U.S. 476 (1993). Although the

Wisconsin Supreme Court had determined that the

enhancement statute violated the First Amendment “by

punishing what the legislature has deemed to be offensive

thought,” rather than conduct, this Court rejected that

analysis. More specifically, this Court stated:

There is no doubt that we are bound by a state

court’s construction of a state statute.... But

here the Wisconsin Supreme Court did not,

strictly speaking, construe the Wisconsin statute

in the sense of defining the meaning of a

particular word or phrase. Rather, it merely

characterized the “practical effect” of the statute

for First Amendment purposes. ... This

28

assessment does not bind us. Once any

ambiguities as to the meaning of the statute are

resolved, we may form our own judgment as to

its operative effect.

Mitchell, 508 U.S. at 483-84 (internal citations omitted).

Similarly, the Arizona Supreme Court's conclusion as to

the maximum penalty permitted upon conviction for the

first degree murder “merely characterizes the practical

effect” of Arizona’s death penalty statute. This Court

may, therefore, form its own judgment as to its “operative

effect.”

Here, the operative effect of Arizona’s statute is this:

A verdict of guilt on a first degree murder charge exposes

the defendant to the death penalty by authorizing

additional procedures — procedures mandated by the

Eighth Amendment for the purpose of distinguishing

“between those individuals for whom death is an

appropriate sanction and those for whom it is not.”

Spaziano, 468 U.S. at 460 (citing Zant v. Stephens, 462

U.S. 862, 873-880 (1983); Furman, 408 U.S. at 294

(Brennan, J., concurring)). That the trial judge made this

determination based upon “standards to guide the

making of [the] choice’ between the alternative verdicts of

death and life imprisonment” does not render Ring's

death sentence unconstitutional. Poland, 476 U.S. at 156

(quoting Bullington, 451 U.S. at 438).

29

¢

CONCLUSION

For the foregoing reasons, Walton should not be

overruled and the judgment of the Arizona Supreme

Court should be affirmed.

Respectfully submitted,

BILL PRYOR

Attorney General of Alabama

NATHAN A. FORRESTER

Solicitor General

A. VERNON BARNETT, IV *

Deputy Solicitor General

MICHAEL B. BILLINGSLEY

Deputy Solicitor General

* COUNSEL OF RECORD

OFFICE OF THE ATTORNEY GENERAL

State of Alabama

11 South Union Street

Montgomery, Alabama 36130-0152

(334) 242-4317 *