Tuesday, March 06, 2007

Maricopa County, the Death Penalty, and Ring v. Arizona

Yesterday's New York Times included an article reporting on some fairly striking death penalty developments in Maricopa County, Arizona. The elected county attorney there, Andrew P. Thomas, has apparently "doubled the number of times that the office has sought the death penalty [compared to the rates that existed before he took office two years ago], even though the number of first-degree murder cases prosecuted by the county has remained more or less the same for a decade." Among other things, this practice has "crippled the county's public defender system [and] left roughly a dozen murder defendants without representation." Oh, and as a result of the new policy, Maricopa County "currently has 138 capital cases pending or awaiting trial, surpassing the total number of defendants who received the death penalty nationwide last year." As Doug Berman points out on his excellent Sentencing Law and Policy Blog, that's more than six times the number of people Arizona has executed in the last three decades.

As striking as these statistics are, most notable to me is one of the county attorney's apparent justifications for his charging policy: "In light of a 2003 decision by the United States Supreme Court that juries rather than judges must make the factual determinations in sentencing criminals to death, Mr. Thomas said he had concluded that juries should be given broader latitude over who receives the sentence." The Supreme Court decision in question must be Ring v. Arizona, which was actually decided in 2002. Ring held that because, under Arizona law, a defendant convicted of first-degree murder is not eligible for the death penalty unless at least one statutorily enumerated aggravating factor is found to exist, the aggravating factors operate as the functional equivalent of an element of a greater offense. Thus, under the Court's earlier decision in Apprendi v. New Jersey, a defendant's Sixth Amendment right to a jury applies to the finding of aggravating factors. In other words, given the structure of Arizona law, a defendant can only be sentenced to death if the jury, not the judge, finds the presence of at least one aggravating factor.

So Ring was about the appropriate constitutional role of judge and jury in capital cases. It had nothing to do with the exercise of prosecutorial discretion. If County Attorney Thomas sees in Ring an invitation to dispense with that discretion, he's misreading the case. Beyond Ring, if Thomas is suggesting that juries should have the option of imposing death in more cases so that they can rank the cases against one another and impose death in only the worst ones, the suggestion makes little sense. Any particular jury serves in only one case. It does not look at multiple cases and make comparative judgments of their heinousness. The prosecutor, on the other hand, is a repeat player. He can, and should, make comparative assessments, committing his office's, defense counsel's, and the court's resources to a capital trial only in the most serious cases. It appears the county attorney in Maricopa County has forgotten that part of the job description.

9 comments:

Michael C. Dorf said...

To play devil's advocate, let me try to make a tiny bit of sense out of the prosecutor's claim. Suppose he thinks that, on average, for a crime rate of X, the right number of death sentences is Y. Suppose further that he thinks that under Ring the odds of any given capital defendant getting sentenced to death are half what they would be for a judge-sentencing regime (because it's just harder to convince 12 jurors to vote for the death penalty than to convince 1 judge). So while under the old regime he would exercise his discretion to charge K x Y defendants with capital murder, now he charges 2K x Y defendants (where 1/K is the fraction of capital defts get the death penalty under judge sentencing, and thus 1/2K is the fraction that get the death penalty under jury sentencing). The prosecutor would still be exercising some discretion in deciding which 2K of the potential capital defendants actually to charge with capital murder.

egarber said...

I noticed that Thomas has a target percentage for death penalty consideration – he wants it requested in 42 percent of all first-degree murder cases. He is pushing it to promote deterrence. Setting aside the argument about whether the death penalty actually “prevents” heinous crimes, I’m guessing that deterrence generally is a legitimate government goal.

However, I wonder if there’s a point where statistical benchmarks like the one here cross the line on eighth amendment jurisprudence. Here are some hasty questions:

1) If procedural and substantive rules exist to protect the individual, is it true justice if defendants get caught in a numbers game, the same way I could by sheer bad luck during a corporate cutback?

2) Would it matter if the nationwide average was a mere 5%, while Zona’s was 42%?

3) What if his goal was to seek it in 100% of first-degree cases?

As I’ve said before, I’m no lawyer – but I *DO* know that the eighth amendment is wide open to interpretation.

Trevor Morrison said...

Mike's defense of the prosecutor's position makes more sense to me than what the NYT reports to be the prosecutor's actual rationale. The article says the prosecutor has decided in light of Ring that "juries should be given broader latitude over who receives [a death] sentence." That's not quite the same, I think, as saying that "requiring jury factfinding decreases the likelihood of a death sentence in any individual case, so I'm going to send a bunch more cases to the jury in order to yield the volume of death sentences I want." The two statements aren't necessarily incompatible, but I don't see the latter entailed in the former. I also don't think Mike is suggesting otherwise; he's proposing an alternative rationale for the prosecutor's position. And as I say, that rationale makes more sense than the one hinted at in the article.

Of course, there may be other problems with this alternative rationale. To the extent the prosecutor does not actually think the death penalty is warranted (whether on consequentialist or retributivist grounds) in all the cases in which he seeks death (that is, to the extent the prosecutor's desired volume of death sentences is less than the number he seeks), we might have qualms about his seeking the ultimate penalty in all those cases. We might view his doing so as a kind of overprosecution -- premised, to be sure, on a prediction about a certain measure of discounted enforcement by the jury, but overprosecution nonetheless.

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