RING v. ARIZONA
No. 01-488
SUPREME COURT OF THE UNITED STATES
Argued April 22, 2002-Decided June 24, 2002
536 U.S. 584
Janet Napolitano, Attorney General of Arizona, argued the cause for respondent. With her on the brief were Patrick Irvine, Solicitor General, Kent E. Cattani, and Robert L. Ellman and Kathleen P. Sweeney, Assistant Attorneys General.*
JUSTICE GINSBURG delivered the opinion of the Court.
This case concerns the Sixth Amendment right to a jury trial in capital prosecutions. In Arizona, following a jury adjudication of a defendant‘s guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.
In Walton v. Arizona, 497 U. S. 639 (1990), this Court held that Arizona‘s sentencing scheme was compatible with the Sixth Amendment because the additional facts found by the judge qualified as sentencing considerations, not as “element[s] of the offense of capital murder.” Id., at 649. Ten years later, however, we decided Apprendi v. New Jersey, 530 U. S. 466 (2000), which held that the Sixth Amendment does not permit a defendant to be “expose[d]... to a penalty
Apprendi‘s reasoning is irreconcilable with Walton‘s holding in this regard, and today we overrule Walton in relevant part. Capital defendants, no less than noncapital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.
I
At the trial of petitioner Timothy Ring for murder, armed robbery, and related charges, the prosecutor presented evidence sufficient to permit the jury to find the facts here recounted. On November 28, 1994, a Wells Fargo armored van pulled up to the Dillard‘s department store at Arrowhead Mall in Glendale, Arizona. Tr. 57, 60-61 (Nov. 14, 1996). Courier Dave Moss left the van to pick up money inside the store. Id., at 61, 73-74. When he returned, the van, and its driver, John Magoch, were gone. Id., at 61-62.
Later that day, Maricopa County Sheriff‘s Deputies found the van-its doors locked and its engine running-in the parking lot of a church in Sun City, Arizona. Id., аt 99-100 (Nov. 13, 1996). Inside the vehicle they found Magoch, dead from a single gunshot to the head. Id., at 101. According to Wells Fargo records, more than $562,000 in cash and $271,000 in checks were missing from the van. Id., at 10 (Nov. 18, 1996).
Prompted by an informant‘s tip, Glendale police sought to determine whether Ring and his friend James Greenham were involved in the robbery. The police investigation revealed that the two had made several expensive cash purchases in December 1994 and early 1995. E. g., id., at 153-156 (Nov. 14, 1996); id., at 90-94 (Nov. 21, 1996). Wiretaps
In one recorded phone conversation, Ring told Ferguson that Ring might “cu[t] off” Greenham because “[h]e‘s too much of a risk“: Greenham had indiscreetly flaunted a new truck in front of his ex-wife. State‘s Exh. 49A, pp. 11-12. Ring said he could cut off his associate because he held “both [Greenham‘s] and mine.” Id., at 11. The police engineered a local news broadcast about the robbery investigation; they included in the account several intentional inaccuracies. Tr. 3-5, 13-14 (Nov. 19, 1996). On hearing the broadcast report, Ring left a message on Greenham‘s answering machine to “remind me to talk to you tomorrow and tell you about what was on the news tonight. Very important, and also fairly good.” State‘s Exh. 55A, p. 2.
After a detective left a note on Greenham‘s door asking him to call, Tr. 115-118 (Nov. 18, 1996), Ring told Ferguson that he was puzzled by the attention the police trained on Greenham. “[H]is house is clean,” Ring said; “[m]ine, on the other hand, contains a very large bag.” State‘s Exh. 70A, p. 7.
On February 14, 1995, police furnished a staged reenactment of the robbery to the local news, and again included deliberate inaccuracies. Tr. 5 (Nov. 19, 1996). Ferguson told Ring that he “laughed” when he saw the broadcast, and Ring called it “humorous.” State‘s Exh. 80A, p. 3. Ferguson said he was “not real worried at all now“; Ring, however, said he was “slightly concern[ed]” about the possibility that the police might eventually ask for hair samples. Id., at 3-4.
Two days later, the police executed a search warrant at Ring‘s house, discovering a duffel bag in his garage containing more than $271,000 in cash. Tr. 107-108, 111, 125 (Nov. 20, 1996). They also found a note with the number “575, 995” on it, followed by the word “splits” and the letters “F,” “Y,” and “T.” Id., at 127-130. The prosecution asserted
Testifying in his own defense, Ring said the money seized at his house was startup сapital for a construction company he and Greenham were planning to form. Id., at 10-11 (Dec. 3, 1996). Ring testified that he made his share of the money as a confidential informant for the Federal Bureau of Investigation and as a bail bondsman and gunsmith. Id., at 162, 166-167, 180 (Dec. 2, 1996). But an FBI agent testified that Ring had been paid only $458, id., at 47 (Nov. 20, 1996), and other evidence showed that Ring had made no more than $8,800 as a bail bondsman, id., at 48-51 (Nov. 21, 1996); id., at 21 (Nov. 25, 1996).
The trial judge instructed the jury on alternative charges of premeditated murder and felony murder. The jury deadlocked on premeditated murder, with 6 of 12 jurors voting to acquit, but convicted Ring of felony murder occurring in the course of armed robbery. See
As later summed up by the Arizona Supreme Court, “the evidence admitted at trial failed to prove, beyond a reasonable doubt, that [Ring] was a major participant in the armed robbery or that he actually murdered Magoch.” 200 Ariz. 267, 280, 25 P. 3d 1139, 1152 (2001). Although clear evidence connected Ring to the robbery‘s proceeds, nothing submitted at trial put him at the scene of the robbery. See ibid. Furthermore, “[f]or all we know from the trial evidence,” the Arizona court stated, “[Ring] did not participate in, plan, or even expect the killing. This lack of evidence no doubt ex-
Under Arizona law, Ring could not be sentenced to death, the statutory maximum penalty for first-degree murder, unless further findings were made. The State‘s first-degree murder statute prescribes that the offense “is punishable by death or life imprisonment as provided by
At the conclusion of the sentencing hearing, the judge is to determine the presence or absence of the enumerated “aggravating circumstances”1 and any “mitigating circum-
Between Ring‘s trial and sentencing hearing, Greenham pleaded guilty to second-degree murder and armed robbery. He stipulated to a 27 1/2-year sentence and agreed to cooperate with the prosecution in the cases against Ring and Ferguson. Tr. 35-37 (Oct. 9, 1997).
Called by the prosecution at Ring‘s sentencing hearing, Greenham testified that he, Ring, and Ferguson had been planning the robbery for several weeks before it occurred. According to Grеenham, Ring “had I guess taken the role as leader because he laid out all the tactics.” Id., at 39. On the day of the robbery, Greenham said, the three watched the armored van pull up to the mall. Id., at 45. When Magoch opened the door to smoke a cigarette, Ring shot him with a rifle equipped with a homemade silencer. Id., at 42, 44-45. Greenham then pushed Magoch‘s body aside and drove the van away. Id., at 45. At Ring‘s direction, Greenham drove to the church parking lot, where he and Ring transferred the money to Ring‘s truck. Id., at 46, 48. Later, Greenham recalled, as the three robbers were dividing up the money,
On cross-examination, Greenham acknowledged having previously told Ring‘s counsel that Ring had nothing to do with the planning or execution of the robbery. Id., at 85-87. Greenham explained that he had made that prior statement only because Ring had threatened his life. Id., at 87. Greenham also acknowledged that he was now testifying against Ring as “pay back” for the threats and for Ring‘s interference in Greenham‘s relationship with Greenham‘s ex-wife. Id., at 90-92.
On October 29, 1997, the trial judge entered his “Sрecial Verdict” sentencing Ring to death. Because Ring was convicted of felony murder, not premeditated murder, the judge recognized that Ring was eligible for the death penalty only if he was Magoch‘s actual killer or if he was “a major participant in the armed robbery that led to the killing and exhibited a reckless disregard or indifference for human life.” App. to Pet. for Cert. 46a-47a; see Enmund v. Florida, 458 U. S. 782 (1982) (Eighth Amendment requires finding that felony-murder defendant killed or attempted to kill); Tison v. Arizona, 481 U. S. 137, 158 (1987) (qualifying Enmund, and holding that Eighth Amendment permits execution of felony-murder defendant, who did not kill or attempt to kill, but who was a “major participa[nt] in the felony committed” and who demonstrated “reckless indifference to human life“).
Citing Greenham‘s testimony at the sentencing hearing, the judge concluded that Ring “is the one who shot and killed Mr. Magoch.” App. to Pet. for Cert. 47a. The judge also found that Ring was a major participant in the robbery and that armed robbery “is unquestionably a crime which carries with it a grave risk of death.” Ibid.
The judge then turned to the determination of aggravating and mitigating circumstances. See
On appeal, Ring argued that Arizona‘s capital sentencing scheme violates the Sixth and Fourteenth Amendments to the U. S. Constitution because it entrusts to a judge the finding of a fact raising the defendant‘s maximum penalty. See Jones v. United States, 526 U. S. 227 (1999); Apprendi v. New Jersey, 530 U. S. 466 (2000). The State, in response, noted that this Court had upheld Arizona‘s system in Walton v. Arizona, 497 U. S. 639 (1990), and had stated in Apprendi that Walton remained good law.
Reviewing the death sentence, the Arizona Supreme Court made two preliminary observations. Apprendi and Jones, the Arizona high court said, “raise some question about the continued viability of Walton.” 200 Ariz., at 278, 25 P. 3d, at 1150. The court then examined the Apprendi majority‘s interpretation of Arizona law and found it wanting. Apprendi, the Arizona court noted, described Arizona‘s sentencing system as one that “‘requir[es] judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death,’ and not as a system that ‘permits a judge to determine the existence of a factor which makes a crime a capital offense.‘” 200 Ariz., at 279, 25 P. 3d, at 1151 (quoting Apprendi, 530 U. S., at 496-497). JUSTICE O‘CONNOR‘s Apprendi dissent, the Arizona court noted, squarely rejected
After reciting this Court‘s divergent constructions of Arizona law in Apprendi, the Arizona Supreme Court described how capital sentencing in fact works in the State. The Arizona high court concluded that “the present case is precisely as described in Justice O‘Connor‘s dissent [in Apprendi]-Defendant‘s death sentence required the judge‘s factual findings.” 200 Ariz., at 279, 25 P. 3d, at 1151. Although it agreed with the Apprendi dissent‘s reading of Arizona law, thе Arizona court understood that it was bound by the Supremacy Clause to apply Walton, which this Court had not overruled. It therefore rejected Ring‘s constitutional attack on the State‘s capital murder judicial sentencing system. 200 Ariz., at 280, 25 P. 3d, at 1152.
The court agreed with Ring that the evidence was insufficient to support the aggravating circumstance of depravity, id., at 281-282, 25 P. 3d, at 1153-1154, but it upheld the trial court‘s finding on the aggravating factor of pecuniary gain. The Arizona Supreme Court then reweighed that remaining factor against the sole mitigating circumstance (Ring‘s lack of a serious criminal record), and affirmed the death sentence. Id., at 282-284, 25 P. 3d, at 1154-1156.
We granted Ring‘s petition for a writ of certiorari, 534 U. S. 1103 (2002), to allay uncertainty in the lower courts caused by the manifest tension between Walton and the reasoning of Apprendi. See, e. g., United States v. Promise, 255 F. 3d 150, 159-160 (CA4 2001) (en banc) (calling the continued authority of Walton in light of Apprendi “perplexing“); Hoffman v. Arave, 236 F. 3d 523, 542 (CA9 2001) (”Apprendi may
II
Based solely on the jury‘s verdict finding Ring guilty of first-degree felony murder, the maximum punishment he could have received was life imprisonment. See 200 Ariz., at 279, 25 P. 3d, at 1151 (citing
Walton drew support from Cabana v. Bullock, 474 U. S. 376 (1986), in which the Court held there was no constitutional bar to an appellate court‘s finding that a defendant killed, attempted to kill, or intended to kill, as Enmund v. Florida, 458 U. S. 782 (1982), required for imposition of the death penalty in felony-murder cases. The Enmund finding could be made by a court, Walton maintained, because it entailed no “‘element of the crime of capital murder‘“; it “only place[d] ‘a substantive limitation on sentencing.‘” 497 U. S., at 649 (quoting Cabana, 474 U. S., at 385-386). “If the Constitution does not require that the Enmund finding be proved as an element of the offense of capital murder, and does not require a jury to make that finding,” Walton stated, “we cannot conclude that a State is required to denominate aggravating circumstances ‘elements’ of the offense or permit only a jury to determine the existence of such circumstances.” 497 U. S., at 649.
In dissent in Walton, JUSTICE STEVENS urged that the Sixth Amendment requires “a jury determination of facts that must be established before the death penalty may be imposed.” Id., at 709. Aggravators “operate as statutory ‘elements’ of capital murder under Arizona law,” he reasoned, “because in their absence, [the death] sentence is unavailable.” Id., at 709, n. 1. “If th[e] question had been posed in 1791, when the Sixth Amendment became law,” JUSTICE STEVENS said, “the answer would have been clear,” for “[b]y that time,
“the English jury‘s role in determining critical facts in homicide cases was entrenched. As fact-finder, the jury had the power to determine not only whether the defendant was guilty of homicide but also the degree of the offense. Moreover, the jury‘s role in finding facts that would determine a homicide defendant‘s eligibility for capital punishment was particularly well established. Throughout its history, the jury determined which homicide defendants would be subject to capital punishment by making factual determinations, many of which related to difficult assessments of the defendant‘s state of mind. By the time the Bill of Rights was adopted, the jury‘s right to make these determinations was unquestioned.” Id., at 710-711 (quoting White, Fact-Finding and the Death Penalty: The Scope of a Capital Defendant‘s Right to Jury Trial, 65 Notre Dame L. Rev. 1, 10-11 (1989)).
The carjacking statute, we recognized, was “susceptible of [both] constructions“; we adopted the one that avoided “grave and doubtful constitutional questions.” Id., at 239 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909)).
Jones endeavored to distinguish certain capital sentencing decisions, including Walton. Advancing a “careful reading of Walton‘s rationale,” the Jones Court said: Walton “charac-
Dissenting in Jones, JUSTICE KENNEDY questioned the Court‘s account of Walton. The aggravating factors at issue in Walton, he suggested, were not merely circumstances for consideration by the trial judge in exercising sentencing discretion within a statutory range of penalties. “Under the relevant Arizona statute,” JUSTICE KENNEDY observed, “Walton could not have been sentenced to death unless the trial judge found at least one of the enumerated aggravating factors. Absent such a finding, the maximum potential punishment provided by law was a term of imprisonment.” 526 U. S., at 272 (citation omitted). Jones, JUSTICE KENNEDY concluded, cast doubt-needlessly in his view-on the vitality of Walton:
“If it is constitutionally impermissible to allow a judge‘s finding to increase the maximum punishment for carjacking by 10 years, it is not clear why a judge‘s finding may increase the maximum punishment for murder from imprisonment to death. In fact, Walton would appear to have been a better candidate for the Court‘s new approach than is the instant case.” 526 U. S., at 272.
One year after Jones, the Court decided Apprendi v. New Jersey, 530 U. S. 466 (2000). The defendant-petitioner in that case was convicted of, inter alia, second-degree possession of a firearm, an offense carrying a maximum penalty of ten years under New Jersey law. See id., at 469-470. On the prosecutor‘s motion, the sentencing judge found by a preponderance of the evidence that Apprendi‘s crime had been motivated by racial animus. That finding triggered application of New Jersey‘s “hate crime enhancement,” which doubled Apprendi‘s maximum authorized sentence. The judge sentenced Apprendi to 12 years in prison, 2 years over the maximum that would have applied but for the enhancement.
The dispositive question, we said, “is one not of form, but of effect.” Id., at 494. If a State makes an increase in a defendant‘s authorized punishment contingent on the finding of a fact, that fact-no matter how the State labels it-must be found by a jury beyond a reasonable doubt. See id., at 482-483. A defendant may not be “expose[d]... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” Id., at 483; see also id., at 499 (SCALIA, J., concurring) (“[A]ll the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.“).
Walton could be reconciled with Apprendi, the Court finally asserted. The key distinction, according to the Apprendi Court, was that a conviction of first-degree murder in Arizona carried a maximum sentence of death. “[O]nce a jury has found the defendant guilty of all the elements of an offense which carries as its maximum penаlty the sentence of death, it may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed.” 530 U. S., at 497 (emphasis deleted) (quoting
The Apprendi dissenters called the Court‘s distinction of Walton “baffling.” 530 U. S., at 538 (opinion of O‘CONNOR, J.). The Court claimed that “the jury makes all of the findings necessary to expose the defendant to a death sentence.” Ibid. That, the dissent said, was “demonstrably untrue,” for a “defendant convicted of first-degree murder in Arizona cannot receive a death sentence unless a judge makes the factual determination that a statutory aggravating factor exists. Without that critical finding, the maximum sentence to which the defendant is exposed is life imprisonment, and not the death penalty.” Ibid. Walton, the Apprendi dissenters insisted, if properly followed, would have required the Court to uphold Apprendi‘s sentence. “If a State can remove from the jury a factual determination that makes the difference between life and death, as Walton holds that it can, it is inconceivable why a State cannot do the same with respect to a factual determination that results in only a 10-year increase in the maximum sentence to which a defendant is exposed.” 530 U. S., at 537 (opinion of O‘CONNOR, J.).
The Arizona Supreme Court, as we earlier recounted, see supra, at 595-596, found the Apprendi majority‘s portrayal of Arizona‘s сapital sentencing law incorrect, and the description in JUSTICE O‘CONNOR‘s dissent precisely right: “Defendant‘s death sentence required the judge‘s factual findings.” 200 Ariz., at 279, 25 P. 3d, at 1151. Recognizing that the Arizona court‘s construction of the State‘s own law is authoritative, see Mullaney v. Wilbur, 421 U. S. 684, 691 (1975), we are persuaded that Walton, in relevant part, cannot survive the reasoning of Apprendi.
In an effort to reconcile its capital sentencing system with the Sixth Amendment as interpreted by Apprendi, Arizona first restates the Apprendi majority‘s portrayal of Arizona‘s system: Ring was convicted of first-degree murder, for which Arizona law specifies “death or life imprisonment” as the
Arizona also supports the distinction relied upon in Walton between elements of an offense and sentencing factors. See supra, at 598-599; Tr. of Oral Arg. 28-29. As to elevation of the maximum punishment, however, Apprendi renders the argument untenable;5 Apprendi repeatedly in
Even if facts increasing punishment beyond the maximum authorized by a guilty verdict standing alone ordinarily must be found by a jury, Arizona further urges, aggravating circumstances necessary to trigger a death sentence may nonetheless be reserved for judicial determination. As Arizona‘s counsel maintained at oral argument, there is no doubt that
Apart from the
In various settings, we have interpreted the Constitution to require the аddition of an element or elements to the definition of a criminal offense in order to narrow its scope. See, e. g., United States v. Lopez, 514 U. S. 549, 561-562 (1995) (suggesting that addition to federal gun possession statute of “express jurisdictional element” requiring connection between weapon and interstate commerce would render statute constitutional under Commerce Clause); Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam) (
Arizona suggests that judicial authority over the finding of aggravating faсtors “may . . . be a better way to guarantee against the arbitrary imposition of the death penalty.” Tr. of Oral Arg. 32. The
“an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State. . . . The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free.” Apprendi, 530 U. S., at 498 (SCALIA, J., concurring).
In any event, the superiority of judicial factfinding in capital cases is far from evident. Unlike Arizona, the great majority of States responded to this Court‘s
Although “the doctrine of stare decisis is of fundamental importance to the rule of law[,]’ . . . [o]ur precedents are not sacrosanct.” Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989) (quoting Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468, 494 (1987)). “[W]e have overruled prior decisions where the necessity and propriety of doing so has been established.” 491 U. S., at 172. We are satisfied that this is such a case.
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“The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. . . . If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of a single judge, he was to have it.” Duncan v. Louisiana, 391 U. S. 145, 155-156 (1968).
The right to trial by jury guaranteed by the
It is so ordered.
The question whether Walton v. Arizona, 497 U. S. 639 (1990), survives our decision in Apprendi v. New Jersey, 530 U. S. 466 (2000), confrоnts me with a difficult choice. What compelled Arizona (and many other States) to specify particular “aggravating factors” that must be found before the death penalty can be imposed, see 1973 Ariz. Sess. Laws ch. 138, § 5 (originally codified as
On the other hand, as I wrote in my dissent in Almendarez-Torres v. United States, 523 U. S. 224, 248 (1998), and as I reaffirmed by joining the opinion for the Court in Apprendi, I believe that the fundamental meaning of the jury-trial guarantee of the
Thе quandary is apparent: Should I continue to apply the last-stated principle when I know that the only reason the fact is essential is that this Court has mistakenly said that the Constitution requires state law to impose such “aggra
Since Walton, I have acquired new wisdom that consists of two realizations—or, to put it more critically, have discarded old ignorance that consisted of the failure to realize two things: First, that it is impossible to identify with certainty those aggravating factors whose adoption has been wrongfully coerced by Furman, as oppоsed to those that the State would have adopted in any event. Some States, for example, already had aggravating-factor requirements for capital murder (e. g., murder of a peace officer, see 1965 N. Y. Laws p. 1022 (originally codified at
Second, and more important, my observing over the past 12 years the accelerating propensity of both state and federal
Accordingly, whether or not the States have been erroneously coerced into the adoption of “aggravating factors,” wherever those factors exist they must be subject to the usual requirements of the common law, and to the requirement enshrined in our Constitution, in criminal cases: they must be found by the jury beyond a reasonable doubt.
I add one further point, lest the holding of today‘s decision be confused by the separate concurrence. JUSTICE BREYER, who refuses to accept Apprendi, see 530 U. S., at 555 (dissenting opinion); see also Harris v. United States, ante, at 569 (BREYER, J., concurring in part and concurring in judgment), nonetheless concurs in today‘s judgment because he “beliеve[s] that jury sentencing in capital cases is mandated by the
JUSTICE KENNEDY, concurring.
Though it is still my view that Apprendi v. New Jersey, 530 U. S. 466 (2000), was wrongly decided, Apprendi is now the law, and its holding must be implemented in a principled way. As the Court suggests, no principled reading of Apprendi would allow Walton v. Arizona, 497 U. S. 639 (1990), to stand. It is beyond question that during the penalty phase of a first-degree murder prosecution in Arizona, the finding of an aggravating circumstance exposes “the defendant to a greater punishment thаn that authorized by the jury‘s guilty verdict.” Apprendi, supra, at 494. When a finding has this effect, Apprendi makes clear, it cannot be reserved for the judge.
This is not to say Apprendi should be extended without caution, for the States’ settled expectations deserve our respect. A sound understanding of the
With these observations I join the opinion of the Court.
JUSTICE BREYER, concurring in the judgment.
I
Given my views in Apprendi v. New Jersey, 530 U. S. 466, 555 (2000) (dissenting opinion), and Harris v. United States, ante, at 569 (opinion concurring in part and concurring in judgment), I cannot join the Court‘s opinion. I concur in the judgment, however, because I believe that jury sentencing in capital cases is mandated by the
II
This Court has held that the
I am convinced by the reasons that JUSTICE STEVENS has given. These include (1) his belief that retribution provides the main justification for capital punishment, and (2) his assessment of the jury‘s comparative advantage in determining, in a particular case, whether capital punishment will serve that end.
As to the first, I note the continued difficulty of justifying capital punishment in terms of its ability to deter crime, to
As to incapacitation, few offenders sentenced to life without parole (as an alternative to death) commit further crimes. See, e. g., Sorensen & Pilgrim, An Actuarial Risk Assessment of Violence Posed by Capital Murder Defendants, 90 J. Crim. L. & C. 1251, 1256 (2000) (studies find average repeat murder rate of .002% among murderers whose death sentences were commuted); Marquart & Sorensen, A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society from Capital Offenders, 23 Loyola (LA) L. Rev. 5, 26 (1989) (98% did not kill again either in prison or in free society). But see Roberts v. Louisiana, 428 U. S. 325, 354 (1976) (White, J., dissenting) (“[D]eath finally forecloses the possibility that a prisoner will commit further crimes, whereas life imprisonment does not“). And rehabilitation, obviously, is beside the point.
In respect to retribution, jurors possess an important comparative advantage over judges. In principle, they are more attuned to “the community‘s moral sensibility,” Spaziano, 468 U. S., at 481 (STEVENS, J., concurring in part and dissenting in part), because they “reflect more accurately the compоsition and experiences of the community as a whole,” id., at 486. Hence they are more likely to “express the con
Nor is the fact that some judges are democratically elected likely to change the jury‘s comparative advantage in this respect. Even in jurisdictions where judges are selected directly by the people, the jury remains uniquely capable of determining whether, given the community‘s views, capital punishment is appropriate in the particular case at hand. See Harris, 513 U. S., at 518-519 (STEVENS, J., dissenting); see also J. Liebman et al., A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It 405-406 (Feb. 11, 2002) (hereinafter A Broken System) (finding that judges who override jury verdicts for life are especially likely to commit serious errors); cf. Epstein & King, The Rules of Inference, 69 U. Chi. L. Rev. 1 (2002) (noting dangers in much scholarly research but generally approving of Liebman).
The importance of trying to translate a community‘s sense of capital punishment‘s appropriateness in a particular case is underscored by the continued division of opinion as to whether capital punishment is in all circumstances, as currently administered, “cruel and unusual.” Those who make this claim point, among other things, to the fact that death is not reversible, and to death sentences imposed upon those whose convictions proved unreliable. See, e. g., Weinstein, The Nation‘s Death Penalty Foes Mark a Milestone Crime: Arizona convict freed on DNA tests is said to be the 100th known condemned U. S. prisoner to be exonerated since executions resumed, Los Angeles Times, Apr. 10, 2002, p. A16; G. Ryan, Governor of Illinois, Report of Governor‘s Commis
They point to the potentially arbitrary appliсation of the death penalty, adding that the race of the victim and socioeconomic factors seem to matter. See, e. g., U. S. General Accounting Office, Report to Senate and House Committees on the Judiciary: Death Penalty Sentencing 5 (Feb. 1990) (synthesis of 28 studies shows “pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty“); Baldus, Woodworth, Zuckerman, Weiner, & Broffitt, Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, With Recent Findings from Philadelphia, 83 Cornell L. Rev. 1638, 1661 (1998) (evidence of race-of-victim disparities in 90% of States studied and of race-of-defendant disparities in 55%); McCleskey v. Kemp, 481 U. S. 279, 320-345 (1987) (Brennan, J., dissenting); see also, e. g., D. Baldus, G. Woodworth, G. Young, & A. Christ, The Disposition of Nebraska Capital and Non-Capital Homicide Cases (1973-1999): A Legal and Empirical Analysis 95-100 (Oct. 10, 2001) (death sentences almost five times more likely when victim is of a high socio-economic status).
They argue that the delays that increasingly accompany sentences of death make those sentences unconstitutional because of “the suffering inherent in a prolonged wait for execution.” Knight v. Florida, 528 U. S. 990, 994 (1999) (BREYER, J., dissenting from denial of certiоrari) (arguing that the Court should consider the question); see, e. g., Lackey v. Texas, 514 U. S. 1045 (1995) (STEVENS, J., respecting denial of certiorari); Bureau of Justice Statistics, Capital Punishment 2000, pp. 12, 14 (rev. 2002) (average delay is 12 years, with 52 people waiting more than 20 years and some more than 25).
And they note that other nations have increasingly abandoned capital punishment. See, e. g., San Martin, U. S. Taken to Task Over Death Penalty, Miami Herald, May 31, 2001, p. 1 (United States is only Western industrialized Nation that authorizes the death penalty); Amnesty International Website Against the Death Penalty, Facts and Figures on the Death Penalty (2002), http://www.web.amnesty.org/ rmp/dplibrary.nsf (since Gregg, 111 countries have either abandoned the penalty altogether, reserved it only for exceptional crimes like wartime crimes, or not carried out executions for at least the past 10 years); De Young, Group Critiсizes U. S. on Detainee Policy; Amnesty Warns of Human Rights Fallout, Washington Post, May 28, 2002, p. A4 (the United States rates fourth in number of executions, after China, Iran, and Saudi Arabia).
Many communities may have accepted some or all of these claims, for they do not impose capital sentences. See A Broken System, App. B, Table 11A (more than two-thirds of American counties have never imposed the death penalty since Gregg (2,064 out of 3,066), and only 3% of the Nation‘s counties account for 50% of the Nation‘s death sentences (92 out of 3,066)). Leaving questions of arbitrariness aside, this diversity argues strongly for procedures that will help assure that, in a particular case, the community indeed believes application of the death penalty is appropriate, not “cruel,” “unusual,” or otherwise unwarranted.
For these reasons, the danger of unwarranted imposition of the penalty cannot be avoided unless “the decision to impose the death penalty is made by a jury rather than by a single governmental official.” Spaziano, 468 U. S., at 469 (STEVENS, J., concurring in part and dissenting in part); see Solem v. Helm, 463 U. S. 277, 284 (1983) (Eighth Amendment prohibits excessive or disproportionate punishment). And I сonclude that the Eighth Amendment requires individual jurors to make, and to take responsibility for, a decision to sentence a person to death.
JUSTICE O‘CONNOR, with whom THE CHIEF JUSTICE joins, dissenting.
I understand why the Court holds that the reasoning of Apprendi v. New Jersey, 530 U. S. 466 (2000), is irreconcilable with Walton v. Arizona, 497 U. S. 639 (1990). Yet in choosing which to overrule, I would choose Apprendi, not Walton.
I continue to believe, for the reasons I articulated in my dissent in Apprendi, that the decision in Apprendi was a serious mistake. As I argued in that dissent, Apprendi‘s rule that any fact that increases the maximum penalty must be treated as an element of the crime is not required by the Constitution, by history, or by our prior cases. See 530 U. S., at 524-552. Indeed, the rule directly contradicts several of our prior cases. See id., at 531-539 (explaining that the rule conflicts with Patterson v. New York, 432 U. S. 197 (1977), Almendarez-Torres v. United States, 523 U. S. 224 (1998), and Walton, supra). And it ignores the “significant history in this country of . . . discretionary sentencing by judges.” 530 U. S., at 544 (O‘CONNOR, J., dissenting). The Court has failed, both in Apprendi and in the decision announced today, to “offer any meaningful justification for deviating from years of cases both suggesting and holding that application of the ‘increase in the maximum penalty’ rule is not required by the Constitution.” Id., at 539.
Not only was the decision in Apprendi unjustified in my view, but it has also had a severely destabilizing effect on our criminal justice system. I predicted in my dissent that the decision would “unleash a flood of petitions by convicted defendants seeking to invalidate their sentences in whole or
The decision today is only going to add to these already serious effects. The Court effectively deсlares five States’ capital sentencing schemes unconstitutional. See ante, at 608, n. 6 (identifying Colorado, Idaho, Montana, and Nebraska as having sentencing schemes like Arizona‘s). There are 168 prisoners on death row in these States, Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc., Death Row U. S. A. (Spring 2002), each of whom
By expanding on Apprendi, the Court today exacerbates the harm done in that case. Consistent with my dissent, I would overrule Apprendi rather than Walton.
Notes
“1. The defendant has been convicted of another offense in the United States for which under Arizоna law a sentence of life imprisonment or death was imposable.
“2. The defendant was previously convicted of a serious offense, whether preparatory or completed.
“3. In the commission of the offense the defendant knowingly created a grave risk of death to another person or persons in addition to the person murdered during the commission of the offense.
“4. The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.
“5. The defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.
“6. The defendant committed the offense in an especially heinous, cruel or depraved manner.
“7. The defendant committed the offense while in the custody of or on authorized or unauthorized release from the state department of corrections, a law enforcement agency or a county or city jail.
“8. The defendant has been convicted of one or more other homicides, as defined in § 13-1101, which were committed during the commission of the offense.
“9. The defendant was an adult at the time the offense was committed or was tried as an adult and the murdered person was under fifteen years of age or was seventy years of age or older.
“10. The murdered person was an on duty peace officer who was killed in the course of performing his official duties and the defendant knew, or should have known, that the murdered person was a peace officer.” This data was obtained from a Westlaw search conducted May 31, 2002, in the United States Courts of Appeals database using the following search terms: “‘Apprendi v. New Jersey’ & Title[‘U.S.’ or ‘United States‘].”