Tucson, Arizona Sunday, 28 July 2002
http://www.azstarnet.com/star/today/20728DEATHPENALTY.html
By Howard Fischer
CAPITOL MEDIA SERVICES
PHOENIX - The hopes for a quick vote on revamping Arizona's capital punishment laws when the Legislature convenes Tuesday could be dashed by a series of questions that are nagging state officials.
For Gov. Jane Hull, Attorney General Janet Napolitano and prosecutors, the issue is simple: State law must now reflect that juries alone are to impose the ultimate punishment. That comes after a ruling last month by the U.S. Supreme Court voiding the law here and in four other states.
But the simple fix the prosecutors say they have fashioned is not the only fix permitted by law - even ignoring the option of eliminating the death penalty. And there also are provisions in the legislation that are not legally necessary to bring Arizona law into compliance with the ruling.
The Supreme Court ruling followed the logic of an earlier decision that said all questions of fact must be resolved by a jury.
This is crucial because simply killing someone - even in a premeditated way - does not itself merit imposition of the death penalty. There also has to be at least one "aggravating circumstance" that makes the crime different, such as multiple murders, murder for financial gain or a crime committed by someone with a record.
What the high court said is these are issues of fact and must be decided by a jury.
But that does not mean a jury must pass sentence. All it means is the jury must find the aggravating factors. Despite that, the prosecutors who wrote the legislation took that second step, believing that juries would be no less likely to sentence someone to death.
But that raises another question: experience. One aggravating factor often used by Arizona prosecutors is that the crime was committed in an especially cruel, heinous or depraved manner.
In a 1990 case, a federal appellate court said those terms in Arizona law may be unconstitutionally vague on their face. But the judges upheld the sentence anyway because it was imposed by a judge.
"Trial judges are presumed to know the law, and to apply it in making their decisions," the court wrote. "If the Arizona Supreme Court has narrowed the definition of the 'especially heinous, cruel or depraved' aggravating circumstance, we presume that Arizona trial judges are applying the narrower definition."
That doesn't make jury-imposed death sentences illegal per se. More than two dozen states already use that system.
But it suggests the legislation may be unenforceable because it does not spell out for jurors what constitutes heinous, cruel or depraved. Appellate courts may consider that crucial as the average juror, with no experience, may be unable to determine a heinous murder from what is merely a bloody one.
Prosecutors believe, however, that could be cured by proper jury instructions.
On the opposite side of the equation, something in the legislation does not need to be there: Eliminating the duty of the Arizona Supreme Court to examine all death penalty cases and determine, on its own, if a lesser sentence is appropriate.
Prosecutors admit the change is unnecessary to bring Arizona law into compliance with the U.S. Supreme Court ruling. But they contend that having juries determine sentence is contrary to the concept of five justices substituting their own judgment.
Then there is the question of applicability. Last month's ruling clearly affected Timothy Ring, who brought the case. And, prosecutors admit, it probably also allows 28 people on death row who have not exhausted direct appeals to seek resentencing by a jury.
But another 100 or so who are beyond their regular appeals would not be entitled to the same treatment - even though they, too, were sentenced by judges, a procedure the nation's high court found illegal.
Finally, there are the questions about the fairness of the death penalty itself.
Of all the capital cases over a five-year period, prosecutors were 64 percent more likely to put defendants on notice that they would seek the death penalty in cases where the victim was white than in other cases. And in cases where the death penalty was sought, the chance of actually being sentenced to death was 4.7 times as likely in the case of a white victim.
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