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.