Supreme Court Rulings on Death Penalty Issues Reflect Arbitrariness of Punishment, ACLU Says

June 24, 2004 12:00 am

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WASHINGTON - Three death penalty-related decisions issued today by the U.S. Supreme Court are a ""mixed bag"" that reflect the ongoing arbitrariness of how capital punishment is applied in the United States, the American Civil Liberties Union said.

The three decisions dealt with the retroactive application of a previous Supreme Court ruling on the death penalty, the consideration of mental retardation in death penalty cases, and the ability of death row prisoners to have a court review their claims.

""These rulings, both the good and the bad, underscore that the death penalty continues to be applied arbitrarily and that even new protections afforded by the courts may not be applied uniformly,"" said Diann Rust-Tierney, director of the ACLU's Capital Punishment Project. ""We therefore continue to call for an immediate temporary halt to executions so that we can take a comprehensive look at the failures of this system.""

In Schriro v. Summerlin, the Justices ruled 5-4 that more than 100 death row inmates cannot benefit from a 2002 Supreme Court ruling that crucial findings of fact should be made by a jury, not a judge, in capital cases. The Court held that the earlier decision in Ring v. Arizona was not retroactive and therefore could not be applied to Summerlin and the death row inmates in the five states affected (Arizona, Colorado, Idaho, Montana and Nebraska) by that ruling.

""As a result of this ruling, the Court is effectively allowing death row prisoners sentenced under an admittedly unconstitutional scheme to be executed,"" Rust-Tierney said.

Justice Scalia, writing for the majority, held that the Ring decision represented a new procedural rule for the manner of determining the defendant's culpability -- whether a defendant is worthy of being sentenced to death -- and these new procedural rules are generally not applicable retroactively unless they meet a very narrow ""watershed"" exception. Justice Scalia concluded that the evidence that juries were more accurate fact-finders than judges was too equivocal to support the conclusion that the Ring decision was a watershed rule.

Justices Breyer, Stevens, Souter and Ginsberg dissented, finding that Ring did announce a watershed rule. Their dissent focused on the jury's role in serving as the community standard for determining whether the conduct of the defendant merits a death sentence.

In Beard v. Banks, another case involving retroactivity, the Supreme Court held that a 1988 opinion that invalidated death-sentencing schemes in which jurors were required to be unanimous in finding the existence of mitigating factors was not retroactive.

Justice Thomas, in writing the majority opinion, concluded that although the Court's decision in that case, Maryland v. Mills, announced a new rule, that rule also did not fall within the ""watershed"" exception for new rules that are retroactively applicable.

The Court emphasized in both Summerlin and Beard that these new procedural rules will only be retroactive under extremely limited circumstances.

""These retroactivity cases illustrate that the public cannot rely on the Courts alone to assure that the death penalty is applied fairly,"" Rust-Tierney said. ""The Court has indicated that it will step in to protect those on death row only in what it considers extraordinary circumstances. Therefore it is up to the states to examine their death sentencing schemes to assure that the death penalty is not applied arbitrarily.""

Finally, in Tennard v. Dretke, which involved a mentally retarded death row defendant, the Court ruled that the defendant in this case should have been given the opportunity to argue that the jury did not have an adequate opportunity to consider evidence of his mental retardation as a mitigating circumstance. The decision strongly repudiated a ruling by the Fifth Circuit Court of Appeals that erected artificial barriers to having such a claim considered.

For more information on the ACLU's opposition to the death penalty, go to /DeathPenalty/DeathPenaltyMain.cfm

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