What is Furman v. Georgia

What is
In response to Furman v. Georgia,
Arizona modified its capital
statute so that judges alone make the capital decision.4 This statute was upheld against
constitutional challenge in Walton v. Arizona5; most of the 128 people on Arizona’s death
row received their sentence after Walton upheld the constitutionality of our death sentencing statute. Idaho and Montana also have single judges making the death decision.
Colorado and Nebraska have panels of judges doing so. Alabama, Delaware and Florida
allow the jury to make a sentencing recommendation prior to the judge making the ultimate
These states, along with Arizona, account for 800 of the 3,711 people on death row
nationwide as of January 1, 2002. The other 29 states with the death penalty, along with
the federal government and the military, have juries making the capital sentencing decision.
Those other states are: Arkansas, California, Connecticut, Georgia, Illinois, Kansas,
Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, New Hampshire, New Jersey,
New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South
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Ring Cycle Continues
at U.S.
Carolina, South Dakota, Tennessee, Texas, Utah, Virginia,
Washington and Wyoming.6
Recent opinions by the U.S. Supreme Court in Jones v.
United States7 and Apprendi v. New Jersey8 have held that anything that enhances a person’s potential sentence, except for
prior convictions, must be determined by a jury, not a judge.
There is dicta in both opinions about capital sentencing, but the
Court refrained from addressing what impact, if any, Jones and
Apprendi have on judicial capital sentencing as well as the continued viability of Walton. The Court granted certiorari in Ring v.
Arizona to address this issue.
A.R.S. § 13-703 contains the mechanics of Arizona’s capital
sentencing scheme. Persons found guilty of first-degree murder
can be punished by death or life imprisonment.9 However, the
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ost attorneys practice
their entire career without setting
foot in our nation’s highest court.
Recently, several Arizona attorneys
had the opportunity to do so in an
important death penalty case.
Timothy Stuart Ring v. Arizona1
was argued in the United States
Supreme Court on April 22, 2002.
The case was “fast tracked” with an
expedited briefing and argument
schedule. By the time you read this,
the Court may already have issued its
opinion or will be doing so shortly.
The importance of Ring is that it
may affect the 128 people on
Arizona’s death row and possibly the
800 on death rows in states with
similar capital sentencing schemes
(see box below).
return of the guilty verdict by itself does not allow the trial
judge to sentence someone to death. A hearing conducted
before the court alone to determine the existence or nonexistence of aggravating and mitigating circumstances is
required before any special verdict pronouncing sentence
shall be returned.10 The issue is whether this process violates
the rule set forth in Apprendi.
Ring argued that because the judge alone determines the
aggravating circumstances, the Apprendi rule is violated,
because the jury’s verdict by itself cannot result in a death
sentence. The state argued that there is no Apprendi conflict
because a criminal defendant charged with first-degree murder can be sentenced to life imprisonment or death, and the
defendant is put on notice of that fact by the indictment.
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Arizona Attorney General Janet
Napolitano and Kent Cattani of the AG’s
Office represented the state; Mr. Ring was
represented pro bono by Andrew Hurwitz
and John Stookey from Osborn Maledon.
So important is this case that many distinguished Arizona attorneys and judges
attended the argument. They included
Vice Chief Justice Ruth McGregor of the
Arizona Supreme Court, ASU law school
Dean Patricia White, former Solicitor
General Scott Bales, and Lewis and Roca
partner John Frank, a longtime mentor of
Janet Napolitano.
Read excerpts from the
oral argument at pp. 28-29.
The odds of having a case that goes to
the United States Supreme Court were
likened to lightning striking, according to
Andy Hurwitz. Ring was the second time
he has argued a case there. Napolitano
agreed that having the high court grant
certiorari is like a bolt of lightning. Given
the expedited scheduling in this case, both
sides had less time to prepare than usual
for oral argument in the high court. The
reply brief was due only one week before
the scheduled argument. Both prepared
vigorously with a series of mock arguments.
Arguing before the high court can be
unlike other oral arguments, Hurwitz says.
The number of justices on the court leads
to an increase in the diversity of questions
and issues that arise. Add to that the
understanding of the issues by the justices
and the preparedness of the participants
and that mix creates a lively, spirited and
thorough debate of the issues at hand.
This is precisely what occurred on April
The justices were very active and asked
many questions of the advocates. All but
Justice Thomas asked at least one question, with Justices Breyer and Scalia being
the most active. Questions focused on the
potential effect of applying Apprendi to
capital sentencing and the interplay
between the Sixth Amendment jury trial
guarantee and the Eighth Amendment
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cruel and unusual restrictions set by the
Court itself regarding the death penalty.
The Court peppered Hurwitz with
questions about the cases that would have
to be overruled if the defendant’s position
were adopted. And Hurwitz acknowledged that the capital sentencing systems
of “eight or nine states” would be implicated by the Court’s ruling. Chief Justice
Rehnquist also asked about the effect on
the U.S. Sentencing Guidelines: Hurwitz
said he believed there would be no effect
on the use of downward departures (p. 7,
ll. 23–24), but Napolitano argued that it
would “throw into question the Federal
Sentencing Guidelines and their structure”
(p. 31, ll. 5–6).
Justice Stephen Breyer asked Hurwitz
whether he would adopt an argument
voiced in the past by Justices Stewart,
Powell and Stevens. Noting that that argument was never accepted by a majority of
the Court, Hurwitz declined to do so, but
said that if the argument were open, he
would adopt it. Chief Justice Rehnquist
then said, “Well, presumably you would
make any argument that’s open to you.”
To courtroom laughter, Hurwitz responded, “We’re open.”
Justice Souter questioned Napolitano at
length about whether the Court would
have to apply a different analysis to every
“departure or innovation” in capital sentencing to determine whether the historic
jury trial requirement applies. And he
asked whether the point of a jury trial wasn’t “to place the jury between the defendant and the State” (p. 29, ll. 11–13).
Justice Breyer appeared critical of the
State’s view that, in this case, the lack of
jury fact finding was a distinction without
a difference: “The difference is that the
individual juror does not have to take the
individual responsibility of saying I as a
human being have decided that this person
should be sentenced to death. Now, that’s
quite a difference” (p. 33, ll. 14–18).
Janet Napolitano has argued before the
World Court,2 but this was her first experience in the nation’s highest court. In the
World Court, the parties had four days of
argument, with the first day lasting six
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hours. The judges there asked no questions. The U.S. Supreme Court allows
each party 30 minutes, and the justices ask
a lot of questions. In Ring, says John
Frank, the justices “went with the flow of
the argument as counsel intended it. This
was oral argument at its best. Both Andy
Hurwitz and Janet Napolitano were a
great credit to the Arizona Bar.”
Both lawyers praised each other’s performance and enjoyed the argument. “I
argue a lot of appellate cases,” said
Hurwitz, “and I always second-guess
myself [afterward]. And this is one of
those where I didn’t. I felt I got to make
all the points I wanted to.”
Napolitano also was moved by the
process. “You stand at this podium from
which every oral argument in the Supreme
Court has been made since 1935; it’s an
intense and incredible experience.”
Whether the capital sentencing scheme
stands up to constitutional scrutiny will be
known by the end of the summer.
Joan Huls is a Law Clerk for Chief Justice
Charles Jones at the Arizona Supreme
Court. Any opinions expressed in this
article are attributable solely to the author.
1. United States Supreme Court No. 01-488.
2. The World Court case of Germany v. United
States also involved two men on Arizona’s
death row. Walter and Karl LaGrand were
German citizens. Germany sought to stop the
executions in the World Court based on violations of the Vienna Convention on
Consular Relations. They were both executed
in 1999. See the Arizona Department of
Corrections Web site at
3. 408 U.S. 238 (1972).
4. A.R.S. § 13-703.
5. 497 U.S. 639 (1990).
6. All statistical information noted here was
obtained from the Death Penalty Information
Center, which can be found online at
www.deathpenaltyinfo.org and DEATH ROW
U.S.A., Winter 2002, a quarterly publication
of the NAACP Legal Defense and
Educational Fund, Inc.
7. 526 U.S. 227 (1999).
8. 530 U.S. 466 (2000).
9. A.R.S. § 13-1105(C).
10. Id. § 13-703(C), (D), (E).
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Included here are a
few excerpts from the
oral argument in
Ring v. Arizona.
To read the complete
Supreme Court
transcript in PDF
format, go to
gov, oral arguments,
argument transcripts,
Ring v. Arizona.
The basic constitutional
principle that underlies the
Sixth Amendment … as this
Court articulated in both
Jones and Apprendi, is the
notion that before you’re
handed over to the State
and before the State is
allowed to exact the maximum punishment permitted
by law, a jury of your peers
is allowed to you to find
those facts to put the State
in that position.
(p. 14, ll. 21–25, p. 15, ll. 1–3)
We are not
that jury
sentencing is
We are
that jury fact
finding is
(p. 19, ll. 10–12)
The State has chosen to
make specific facts
necessary for the imposition
of the ultimate sentence,
and when the State chooses
to do so, whether it chooses
to do so because it merely
thinks it’s a good idea or it
chooses to do so because
the Constitution of the
United States requires it to
do so, the same Sixth
Amendment principle ought
to obtain. And that Sixth
Amendment principle is that
you’re entitled to have the
jury find those facts.
(p. 48, ll. 10–17)
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There are some facts
that the legislature
is entitled to find which
don’t go to the definition
of the crime but go to
the punishment. And
this Court has never
held that there’s a Sixth
Amendment right to
(p. 29, ll. 5–8)
I think the ultimate
question is, what is the
role of the jury? Was that
jury’s role embraced by
Arizona? Yes. Did the
role of the jury in this
case change at any time
from what it was preFurman to post-Furman?
No. Did the jury in this
case know it was a
death case? Yes. Did the
defendant know it was a
death case? Yes.
Everyone knew it was
a death case.
A defendant such
as Ring … has already
received all the
protections that the
Sixth Amendment
entitles him … to.
And all that is going
on here is a narrowing
process where the
judge’s discretion
is actually being
narrowed in
sentencing, not
(p. 39, ll. 8–13)
(p. 46, ll. 8–14)
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