The Rehnquist Court is believed to be fairly strict in its interpretation of those provisions in the Bill of Rights affecting persons accused of crime, although as can be seen in the Kyllo case, it does take those provisions seriously. With the retirement of Justices William Brennan and Thurgood Marshall, there is no one on the present court who believes that the death penalty by itself violates the Eighth Amendment ban on cruel and unusual punishment. So it came as a great surprise to Court-watchers when the justices handed down two major decisions regarding the death penalty.
In the first case, Atkins v. Virginia (2002), Daryl Renard Atkins and William A. Jones had abducted, robbed, and murdered an airman assigned to Langley Air Force Base in Hampton, Virginia. Atkins freely gave police details of his involvement, and at the trial Jones pled guilty in return for a life sentence. Atkins' attorney hired a psychologist who evaluated his client, and reported that he had an IQ of 59. The state produced its own evaluation which held that Atkins was intelligent enough to have planned and committed a crime, and to understand the consequences of his actions. Atkins was convicted and sentenced to death, and on appeal the Virginia Supreme Court affirmed the sentence on the basis of Penry v. Lynaugh (1989), in which the Supreme Court had held that executing a mentally retarded person did not violate the Eighth Amendment's ban on cruel and unusual punishment.
In the first major death penalty case in several terms, the Supreme Court reversed both the Virginia sentence as well as its own precedent. By a vote of 6-3, the Court, speaking through Justice Stevens, held that a national consensus had formed that executing the mentally retarded did constitute cruel and unusual punishment as prohibited by the Eighth Amendment. At the present time, 18 of the 38 states that impose the death penalty do not execute the mentally retarded. This number had grown considerably from 1989, when Penry had been decided and only two states outlawed the practice, and according to Stevens, the Constitution contemplates that the Supreme Court will bring its own judgment to bear by asking whether there is reason to agree or disagree with the judgment reached by the citizenry and its legislators. Stevens found a growing consensus that the objectives of capital punishment—deterring murder and exacting retribution—do not apply when imposed on people of significantly below-average intelligence.
Aside from overturning a relatively recent precedent, the Court's decision came amidst a growing national debate over the death penalty in general. The use of DNA testing has led to the reversal of several convictions of people on death row for murders that they had not committed, and flaws in the system of capital punishment have led Illinois to suspend executions until a full-scale review could take place. Other states are also re-examining how capital punishment operated in their states.
The case may have more symbolic than substantive importance, since aside from referring to broad definitions of mental retardation, the majority said it would leave it to the states to develop precise standards and procedures for determining who qualified under the new rule.
In a strong dissent, Justice Scalia accused the majority of reading its own views into the Constitution, and derided the majority's reference to a growing consensus based on 18 states. Twenty of the death-penalty states, he pointed out, still executed those with below average intelligence.
The second case, Ring v. Arizona (2002), involved the question of who has the power to impose the death penalty, judge or jury. In 1996 three men were arrested and tried for the robbery of an armored car and the killing of its driver, John Magosh. None of the defendants testified at the jury trial, and as a result the jury could not determine which of the three men had actually killed the driver; and so did not recommend the death penalty for any of them. At the sentencing hearing, however, one of the accomplices testified that Timothy Ring had been the "leader" of the group and had taken joy in killing Magosh. Based largely on this testimony, the judge determined that Ring should be executed. Ring then appealed on the basis that the Arizona law that allowed the judge, and not the jury, to impose the death sentence violated his rights of due process and of a fair jury trial. Under the Arizona law, similar to that in eight other states, the judge decides whether to impose the death sentence after hearing the jury's recommendation, and even if the jury recommends against capital punishment, may opt for that penalty.
The majority decision, written by Justice Ginsburg, grew directly out of a 2000 case, Apprendi v. New Jersey, in which the Court had held that a jury and not the judge must find beyond a reasonable doubt any aggravating factor that would increase the jail time a defendant would face for a particular crime. In view of that decision, the right to a jury trial "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 him to death." In reaching this result, the Court reversed a 1990 decision upholding Arizona's death penalty act, Walton v. Arizona.
The two dissenters, Rehnquist and O'Connor, had opposed Apprendi, and claimed that the new ruling intensified Apprendi's "destabilizing effect on the criminal justice system." They warned that the immediate result would be a flood of litigation, since several hundred inmates sat on death row as a result of a capital sentence imposed by a judge and not a jury. In two states whose laws were nearly identical to that of Arizona, 383 prisoners sat on death row in Florida and 187 in Alabama.
The ruling cut across normal ideological lines, with two of the Court's most conservative members, Scalia and Thomas, joining its two most liberal, Ginsburg and Breyer. In his concurring opinion, Justice Scalia wrote that he found an ever-increasing use of judge determined sentencing factors "cause me to believe that our people's traditional belief in the right of trial by jury is in perilous decline." However, looking ahead to a possible Florida or Alabama case, where the law differed from that of Arizona, Scalia indicated he would have no trouble if a state leaves the ultimate life or death decision to the judge, as long as it required a jury to evaluate the aggravating factors either at the trial or in a sentencing hearing.
At the time of this decision, approximately 3700 convicted murderers occupied death rows in 38 states; of these 38 death penalty states, in 29 the jury determines the defendant's fate, and the ruling will have no effect there. Whether it will have any effect on the drive to abolish capital punishment is questionable. The states having judge-sentencing discretion can easily remedy the situation by a simple statute. If the abolition movement is to succeed, it will be more on the basis of the increasing evidence of error that has led Illinois to put a temporary halt to executions.