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The 9th U.S. Circuit Court of Appeals overturned the death sentences Tuesday of more than 100 prisoners throughout the West. Applying the U.S. Supreme Court case Ring v. Arizona retroactively, an 8-3 en banc panel held that prisoners sentenced to death by judges rather than juries should have their death sentences reversed, even if their appeals are already final. The decision could move scores of condemned inmates in Idaho, Montana, Nevada and Arizona off death row. “Although no system is perfect,” Judge Sidney Thomas wrote, “relying on a jury to administer capital punishment unquestionably reduces the risk of error by reposing trust in 12 individuals who must agree as to the presence of aggravating factors beyond a reasonable doubt, whose continued job security is not threatened by their decision and whose consideration is based solely on admissible evidence subject to the rigors of cross-examination.” The Arizona attorney general’s office immediately announced it would appeal, citing several decisions from other courts that conflict with Tuesday’s ruling. “We do intend to petition for cert,” said Assistant Attorney General John Todd. “Hopefully, because of the different conclusions that the different state courts and other circuits have reached, the Supreme Court will look at it.” Approximately 89 of Arizona’s 100-plus death row prisoners are affected by the ruling, along with 15 in Idaho, 13 in Nevada and five in Montana. While Idaho and Montana used penalty-phase schemes very similar to Arizona’s, Nevada used a system where, in some cases, a three-judge panel decided between life and death. All states have changed their death penalty procedures in the wake of 2002′s Ring, 536 U.S. 584. The decision is not likely to affect California, where juries weigh all life or death decisions. “It’s improbable that it has any application to California,” California Deputy Attorney General Dane Gillette said. Ring arose after the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, a 2000 decision that held that juries must decide any factor substantially increasing a sentence. In Ring, the court applied Apprendi to Arizona’s death penalty procedures — despite having turned away the same challenge 12 years earlier. Cases that were on direct appeal when Ring was decided were sent back for a jury to decide the penalty. But whether the case could be applied retroactively in habeas corpus proceedings was an open question. The key issue in Tuesday’s decision is whether Ring was merely a procedural decision, or whether it affected the fundamental structure of criminal proceedings. Thomas decided it was the latter. “ Ring’s invalidation of Arizona’s capital murder statute under the United States Constitution did more than alter ‘who decides,’” Thomas wrote. “It restructured Arizona law and it redefined, as a substantive matter, how that law operates.” Thomas was joined by Chief Judge Mary Schroeder and Judges Harry Pregerson, Stephen Reinhardt, Michael Daly Hawkins, M. Margaret McKeown, Kim Wardlaw and Raymond Fisher. Seemingly important to the court’s decision was the case of Jeffrey Walton, who raised the issue underlying Ring 12 years before the Supreme Court finally sided with his arguments. Walton’s case — and others who raised similar claims before Ring — is noted in a key footnote and discussed further in Reinhardt’s separate concurrence. “Can we justify executing those whose legal efforts had reached a certain point in our imperfect legal process on the day the Supreme Court changed its mind, while invalidating the death sentences of those whose cases were waiting slightly further down the line?” Reinhardt wrote. “A state’s decision to take the life of a human being, if it can be justified at all, must rest on a far less arbitrary foundation.” Judge Johnnie Rawlinson wrote the dissent, arguing that Summerlin v. Stewart, 03 C.D.O.S. 8013, did not overcome the presumption against retroactive application outlined in Teague v. Lane, 489 U.S. 288. She was joined by Judges Diarmuid O’Scannlain and Richard Tallman. “The decision is clearly wrong,” said Kent Scheidegger of Sacramento, Calif.’s Criminal Justice Legal Foundation. “The other [courts] that have considered the question are unanimous the other way.” Both the Arizona and Nevada Supreme Courts, as well as the 11th U.S. Circuit Court of Appeals, have ruled that Ring is not retroactive. Arizona Assistant Federal Public Defender Dale Baich, whose office argued the case, said he was pleased with the decision. However, he and Assistant Attorney General Todd disagree about what would happen next. Todd said a jury could be empanelled to hand down new sentences, while Baich said Arizona’s death row would be emptied. “Our reading of the decision is that all of those cases would get an automatic life sentence,” Baich said. Since Walton lost his constitutional challenge to the Arizona death penalty in 1990, 22 people were executed before the Supreme Court reversed course in Ring, Baich said.

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