In the movie version of Schriro v. Summerlin, everything would happen on a split screen. To the left, you’d have the bone-dry, crinkly-brown leaves of today’s oral argument, featuring the nine justices of the Supreme Court—with Montgomery Clift playing David Souter, and Montgomery Burns playing Stephen Breyer. They’d be arguing—not terribly spiritedly—about the complexities of retroactivity and non-jury sentencing and the Sixth Amendment. That’s why anyone who bothers to write about Summerlin writes about what’s happening on the right side of the screen—about Warren Summerlin, who brutally rapes and murders Brenna Bailey, the bill collector who shows up at his Arizona home in 1982, seeking payment on a loan for his wife’s piano. Bailey’s body is found the next day in the trunk of her car, following a tip phoned in to the police by Summerlin’s mother-in-law, who evidently knows about the murder based on her daughter’s “extrasensory perception.” Summerlin is arrested for murder.
Cut to Uma Thurman playing the public defender, known only as “Jane Roe” in the opinions, who procures mental health exams showing Summerlin to be dyslexic, illiterate, and, in the words of the court-appointed psychiatrist, “functionally mentally retarded.” While Roe is trying to get Summerlin to agree to a plea agreement, which he ultimately rejects, she attends a Christmas party where she meets the devilishly handsome assistant prosecutor in the case (“John Doe” in the court documents, Ben Affleck in the film). Cut then to the freaky monkey sex. (Or, “a personal involvement … of a romantic nature” in court parlance.) The Roe-Does don’t mention their relationship to the judge, or the defendant, but a new attorney is appointed for other reasons. I’m thinking maybe Jason Alexander as George Klink, the lawyer who isn’t ready to try Summerlin’s case, calls only one witness, and never puts on any evidence to prove his central defense—lack of premeditation. Enter the new judge, Philip Marquardt (played by Cheech Marin), who’s got a tiny little marijuana problem for which he’ll later be convicted and disbarred.
No, I am not making this up.
The jury finds Summerlin guilty, and Marquardt holds a sentencing hearing to determine whether, under Arizona law, there are enough “aggravating factors” to impose the death penalty. Klink forgets to introduce most of the evidence of mitigating factors, including the results of Summerlin’s mental health assessment and his horrific history of child abuse. So, Judge Doobie sentences him to death. Fade to Uma and Ben, laughing sadly, over a martini.
The issue before the Supreme Court today has absolutely nothing to do with that story. I just shared it because—pot-smoking and monkey sex notwithstanding—it’s similar to every Arizona death penalty case I worked on when I clerked on the 9th Circuit. Serious mental problems with the defendant. Seriously lackluster performance by overburdened public defenders. Serious constitutional questions about whether this admittedly horrible man should be executed by the state, 20 years after his conviction. And a legal regime that wants first and foremost to promote “finality.”
Two years ago, the Supreme Court decided, in a case called Ring v. Arizona, that defendants have a Sixth Amendment right to have a jury, and not just a judge, determine whether the aggravating factors necessary to impose the death penalty exist. Ring meant that in cases like Summerlin’s, where a judge alone decided the aggravating factors, his death penalty conviction was unconstitutional. Unfortunately for Summerlin, the justices in Ring didn’t decide whether this new rule applied only to future cases or retroactively to cases that had long been decided. That’s what the court must decide this term: Is Ring prospective, * meaning you die even though the conviction was unconstitutional and that so long as you were lucky enough to murder someone in 2002, as opposed to 1982, you’ll be resentenced by a jury?
That’s right, folks; we’ve drifted over to the left side of your screen, where the facts that the sentencing judge was a pothead and the defendant is functionally mentally retarded are irrelevant and what matters is the Supreme Court’s retroactivity doctrine. There will be no more monkey sex in this story. Retroactivity, always a hideous business, is governed by a perplexing case from 1989 called Teague v. Lane. Teague says, in effect, that when the court announces a new rule, it will be applied retroactively only if it creates a “substantive” rather than “procedural” change in the rules. Procedural rules won’t be retroactively applied unless certain exceptions exist, of which one is that the rule is a “watershed rule” implicating “fundamental fairness.” The 9th Circuit Court of Appeals, being the 9th Circuit Court of Appeals, found that Ring could be applied retroactively because the Ring rule was substantive and not procedural, and also (conveniently) because it announced a “watershed” change, it fit into the exception for procedural rules as well.
If there is evidence that any of the justices watched the Uma/Cheech version of Summerlin before oral argument, it is mostly hidden today. John P. Todd, arguing for the state of Arizona, opens with the statement that Ring did not change what is to be decided (i.e., death); it only changed who decides it (i.e., juries, not judges). He says that the key facts in the case remain the same: “The underlying conduct hasn’t changed, the aggravators are the same.” Which simply assumes, of course, that a jury would find the same aggravating facts, but the justices are too bored to suggest this.
Chief Justice William Rehnquist makes his predictable federalism argument—that federal courts shouldn’t be second-guessing state supreme courts on matters of state law. (One of my colleagues in the press room suggests this morning that if the cast of this court doesn’t change soon, the whole court is in serious peril of jumping the shark.) (Ted McGinley for next Supreme Court justice.)
Justice John Paul Stevens acknowledges that he understands that this case isn’t about the tax code when he asks Todd to name a case in which “someone was sentenced to death pursuant to an unconstitutional procedure.” And Breyer, seemingly also aware that a guy is going to die because of what is decided today, quotes Scalia’s concurrence in Ring that bemoaned, “the repeated spectacle of a man’s going to his death because a judge found that an aggravating factor existed.” But Scalia will not let his powers to do evil be used for good. He clarifies: “Justice Breyer is asking for a general capital sentencing exemption to Teague.”
James Feldman argues for the solicitor general’s office, on the side of Arizona. The takeaway from his presentation comes in one of his last lines: “The states have a vital interest in finality and closure.” This echoes Sandra Day O’Connor’s dissent in Ring, where she worries about the “destabilizing effect” on the criminal justice system of changing the rules halfway through the game.
Ken Murray has 30 minutes to argue Summerlin’s side. He opens by trying to remind the justices of the “unique aspects of the death penalty.” But the chief justice wants none of this. There’s a little theater over the whole assumption that jurors are simply fairer than judges (the opposite claim was gospel 30 years ago). Murray tells the court that “judges are human, they have human frailties.” And Scalia retorts, “And juries don’t have frailties?” He points out, “Many of our opinions comment on the fact that the line between substance and procedure is vague. … It depends on the purpose of calling it substance or procedure.”
Several other justices agree. The change announced in Ring can easily be characterized as substantive, and thus retroactive, or procedural, and thus barred by Teague. In the end, they will simply decide whether they want to admit that the sentences of 86 death-row inmates in Arizona, 14 in Idaho, 12 in Nevada, five in Nebraska, and four in Montana are as unconstitutional as was Timothy Ring’s. Which might, depending on the breadth of the holding, open the door for challenges from countless non-capital defendants as well, with sentences determined by judges rather than juries.
One of the ways Supreme Court justices sleep at night is by abstracting cases—especially the capital cases—from all the tawdry human mess and drama. The allure of the court’s retroactivity jurisprudence is that it’s basically unworkable and, as the court acknowledges today, can come out any way you’d like. In a case in which they alone stand between death and someone with serious mental defects, who had a pothead for a judge and a useless attorney, it’s just easier for the justices to live on the left side of the screen, where everything is simple and clean.
Correction, April 20, 2004: In the original version of this article, this sentence read: “Is Ring retroactive, meaning you die even though the conviction was unconstitutional; or prospective, meaning that if you were lucky enough to murder someone in 2002, as opposed to 1982, you’ll be resentenced by a jury?” It has now been amended to remove the confusion about retroactivity. (Return to the corrected sentence.)