Supreme Court puts 110 back on death row

Inmates were unconstitutionally set to die, but will die nonetheless.

Tim Burnett

Some recent Supreme Court decisions have received considerable press. One case, Schriro v. Summerlin, has received disturbingly little attention, especially considering it effectively sent about 110 inmates back to death row. The Court also implicitly stated neither the right to a jury trial nor life and death are substantive issues.

The Court ruled in Ring v. Arizona only a jury could sentence a person to death. Some states previously allowed judges to decide which offenders deserved death.

A sound decision, Ring restored the citizens’ Sixth Amendment right to a trial by jury. Juries are more representative of community opinion, which is accutely important in death penalty cases.

Ring, however, had a gaping hole: It failed to decide the fate of those previously sent to death row by a judge. Most appellate courts ruled Ring only applied going forward. The more progressive 9th Circuit, however, applied the ruling retroactively, commuting more than 100 death warrants to life in prison. Sadly, last week in Schriro the Supreme Court overruled the 9th Circuit.

The Court’s decision was abhorrent. Legally, some rulings can be applied only prospectively. Procedural rulings, such as those to jury selection rules, will apply only in future cases. But courts apply substantive law changes, such as what constitutes rape, to past and future cases.

The rule in question admittedly blurred the line between procedure and substance. It was procedural as only the decision maker changed, not the decision. But Ring struck down a procedure because it was unconstitutional.

The Constitution grants the people the right to a jury trial. In my opinion, constitutional rights are intuitively substantive law.

Aside from esoteric legal logic, this case held approximately 110 lives in the balance. The Constitution did not change when the Court decided Ring. These inmates were unconstitutionally set to die, but will die nonetheless.

The late Justice Robert Jackson said of the Court, “We are not final because we are infallible, but we are infallible only because we are final.” The Court failed last week. Barring commutation by state governors or other appeals, that failure will be all too final for 110 human beings.

Tim Burnett is the Editorial and Opinions editor. He welcomes comments at [email protected]