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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the due process protection of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

The defendant in this case asks this Court to declare unconstitutional a practice in use in nine states. It would also require a change in federal capital case indictments, overturning most, if not all, nonfinal federal capital cases. This change is requested on the basis of an interpretation of the Sixth Amendment which this Court has emphatically rejected many times over many years. This disruption of settled practice and trampling upon the people's reliance on this Court's precedents is contrary to the interests CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

Defendant and an accomplice carjacked and robbed a Wells Fargo armored van and murdered the driver. The jury convicted him of first-degree murder, conspiracy to commit armed robbery, armed robbery, burglary, and theft. State v. Ring, 25 P. 3d 1139, 1142 (Ariz. 2001). The trial judge found two statutory aggravating factors true: pecuniary gain and "especially heinous, cruel or depraved." Id., at 1144. "The judge then determined that the mitigating evidence, when weighed against the aggravating evidence, was insufficient to call for leniency and sentenced Defendant to death for the murder." Id., at 1145. The Arizona Supreme Court rejected the argument that Apprendi v. New Jersey, 530 U. S. 466 (2000) had rendered this procedure unconstitutional under the Sixth Amendment, instead holding that Walton v. Arizona, 497 U. S. 639 (1990) had not been overruled and was still the controlling precedent. Ring, supra, at 1152.

SUMMARY OF ARGUMENT

Apprendi's statement that any distinction between elements and sentencing factors was unknown at the time of the Founding is not entirely correct. For some felonies "benefit of clergy" was available, but not for all offenders. Whether a person convicted of a "clergyable felony," such as manslaughter, received the maximum for that offense (death) or a lesser penalty (branding and possibly jail) depended on the facts found in a post-verdict proceeding. Most of the facts were found by the judge. Jury participation was limited to one specific question. History is consistent with the view that punishment within the statutory range may be determined by facts which are not elements of the crime.

A purely functional definition of "elements" cannot be squared with Mullaney v. Wilbur, Patterson v. New York, and Edwards v. United States. Pattersonallowed the burden of proof of facts reducing murder to manslaughter to be placed on the defendant while Mullaneydid not. The key difference was the legislative specification of elements versus affirmative defenses, even though the matters to be proved were functionally equivalent. Edwards rejected a Sixth Amendment attack on the practice of the trial judge finding facts which determined the sentence under the Sentencing Guidelines, because the sentence imposed was within the statutory maximum for the offense of conviction.

Defendant's argument is contrary to a quarter century of solid precedent. The people of nine states have a massive reliance interest in this precedent. To retry all the cases not yet final on direct appeal would be a massive expenditure and would put the victims' families through another cycle of trial and review. The loss of deterrent effect, recent studies indicate, would cost hundreds and possibly thousands of innocent lives.

For the reasons stated in Planned Parenthood v. Casey, yet another flip in this intensely divisive area of law would diminish public confidence in this Court.

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.