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The U.S. Supreme Court ruled Thursday that more than 100 death sentences should not be overturned despite sweeping changes to how the ultimate penalty is handed down. The 9th U.S. Circuit Court of Appeals ruled last year that scores of death sentences should be thrown out because of a 2002 Supreme Court decision that juries — not judges — should decide “aggravating” factors, such as the vileness of a crime, in capital cases. But in a 5-4 ruling split along ideological lines, the high court said its ruling in Ring v. Arizona, 536 U.S. 584, is not retroactive. “We give retroactive effect to only a small set of ‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding,” Justice Antonin Scalia wrote for the majority. Chief Justice William Rehnquist and Justices Clarence Thomas, Sandra Day O’Connor and Anthony Kennedy concurred. “That a new procedural rule is ‘fundamental’ in some abstract sense is not enough; the rule must be one ‘without which the likelihood of an accurate conviction is seriously diminished,’” Scalia wrote. The court’s more liberal wing — Justices Ruth Bader Ginsburg, John Paul Stevens, Stephen Breyer and David Souter — dissented. Breyer wrote that it is wrong to allow people sentenced before Ring to be executed, while those sentenced after are not. “Certainly the ordinary citizen will not understand the difference. That citizen will simply witness two individuals, both sentenced through the use of unconstitutional procedures, one individual going to his death, the other saved, all through an accident of timing,” Breyer wrote. “How can the court square this spectacle with what it has called the ‘vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason’?” The 9th Circuit ruled that Ring voided the death sentence of Arizona inmate Warren Summerlin because a judge decided the aggravating circumstances. Summerlin was convicted of the 1981 rape and murder of a woman who visited his house to talk to his wife about an overdue account. The ruling had the effect of voiding more than 100 death sentences throughout several Western states. Critics say the high court will continually revisit death penalty cases until it sets firm guidelines. “Whenever the Supreme Court changes a procedure, especially in death penalty law, the disruption this causes is amplified by lower court rulings which wrongly overturn cases which were correctly tried under the old law,” said Kent Scheidegger, director of Sacramento’s Criminal Justice Legal Foundation, in a statement. “As long as the Supreme Court continues to tinker with death penalty law, there must be a limit on how far back those changes will reach. Otherwise, it would be impossible to achieve justice in these cases,” Scheidegger said. Stephen Rohde, a constitutional lawyer and vice president of San Francisco’s Death Penalty Focus, an anti-death penalty organization, said he was “very disappointed” in the ruling. “I think the better side of the argument and the better side of justice was articulated by the dissenters. [Justice] Breyer included a strong reminder that we are dealing with death here, and death is different,” Rohde said. Rohde, who previously represented a California death row inmate, said he thought the decision was unconstitutional because any defendant whose case is still pending can appeal, while older cases will not be reheard. “Everyone agrees that there is a class of persons whose sentence is final … and just because their cases are final, they won’t get the benefit of what everyone agrees on — that juries should hear these cases,” Rohde said. Rohde said the idea that some inmates will be put to death because of an accident of timing “shocks the conscience.” The case is Schriro v. Summerlin, 04 C.D.O.S. 5558. In a similar case, the high court also reversed the 3rd U.S. Circuit Court of Appeals. The lower court had vacated the death sentence of mass murderer George Banks, a Pennsylvania man convicted of killing 13 people, including his seven children. The case is Beard v. Banks, 04 C.D.O.S. 5535.

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