Is Death Different?

"An en banc 9th U.S. Circuit Court of Appeals was faced Tuesday with deciding whether a recent U.S. Supreme Court case could help potentially hundreds of death row inmates get new sentencing hearings. The 9th Circuit struggled with whether the high court's Ring v. Arizona decision -- which held that juries, and not judges, must decide the aggravating factors leading to a sentence of death -- is a structural or procedural change."

If the change announced in Ring is structural, the defendant will likely get a new hearing. But if the appeals court determines that the ruling is procedural only, he and the death row inmates in other states within the 9th Circuit (Montana, Idaho and Arizona) will likely be denied relief.

As Judge Stephen Reinhardt asked during the argument, "It's not a structural error not to have a jury when you're supposed to?" What would be a structural error if not having a jury is not a structural error? The only other thing I can think of is not having a lawyer or not having a judge."

"...Judge Kim Wardlaw, asked if the fact that this was a case involving life or death made it different from others, where the change might be seen as merely procedural."

Add those questions to the Supreme Court's previous holdings that death is different, and we think the Circuit should decide the change is structural and order new sentencing hearings.

The 9th Circuit is the first to consider this issue since the Supreme Court's ruling in the Ring case. The case is Summerlin v. Stewart, 98-99002.