Retroactivity of New Rules of Constitutional Law: Why the Supreme Court Should Have Overturned Warren Summerlin's Unconstitutional Death Sentence

Article excerpt

'He who the sword of heaven will bear should be as holy as severe. "1

INTRODUCTION

Warren Summerlin's conviction for first-degree murder and sexual assault, and his resulting death sentence are, in the words of the United States Court of Appeals for the Ninth Circuit, "raw material from which legal fiction is forged."2 Indeed, Summerlin suffered an inordinate number of bizarre misfortunes from the beginning of his journey through the criminal justice system.3 Court-ordered psychiatric evaluations revealed disturbing mental impairments, but still found Summerlin competent to stand trial and ostensibly legally sane.4 His first lawyer initially worked out a favorable plea agreement, from which Summerlin ultimately withdrew after the judge cautioned that he would not honor the sentencing recommendation.5 Unbeknownst to Summerlin, after the judge's warning but before Summerlin withdrew his plea, his lawyer and the prosecutor who negotiated the plea agreement had a romantic encounter after a Christmas party.6 Following a brief jury trial, Judge Philip Marquardt alone was responsible for meting out Summerlin' s punishment.7 After a Friday penalty-phase hearing Judge Marquardt sentenced Summerlin to death the following Monday.8 Again, unbeknownst to Summerlin, the judge who decided his fate "behind closed doors over the weekend" suffered from a marijuana addiction.9 If only Summerlin had been sentenced twenty years later, constitutional law would have required that his fate rest in the hands of a group of jurors, rather than a single judge who may have been high.10

On June 24, 2002, in the landmark decision of Ring v. Arizona, the United States Supreme Court declared unconstitutional the Arizona capital sentencing scheme that allowed a judge, sitting alone, to determine the presence or absence of aggravating factors required for imposition of the death penalty.11 The petitioner, Timothy Ring, was convicted by a jury of "felony murder occurring in the course of armed robbery."12 Pursuant to the Arizona statute then in effect,13 the trial judge held a separate sentencing hearing after the guilt phase of the trial: he found two aggravating factors, no mitigating circumstances sufficient to call for leniency, and accordingly sentenced Ring to death.14 Because the jury verdict alone would have conferred a maximum punishment of life imprisonment, the Supreme Court found that judge-only determination of aggravating factors violated the Sixth Amendment jury trial guarantee.15 Accordingly, the Supreme Court concluded that "[c]apital defendants ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment."16

Far from settling uncertainty in death penalty jurisprudence, the Ring opinion generated new problems for states that do not require juries to impose the death penalty. Ring invalidated not only Arizona's sentencing scheme, but similar procedures followed by Colorado, Idaho, Montana, and Nebraska.17 Ring also cast doubt on procedures followed in Alabama, Florida, Delaware, and Indiana where the death penalty is imposed pursuant to an advisory scheme, giving roles to both judges and juries.18 Most of these states changed their sentencing procedures in attempt to satisfy Ring,19 but there is still some debate as to exactly which sentencing schemes will satisfy Ring.20 For instance, under the advisory schemes still followed in Alabama and Florida, juries make factual findings and recommend sentences to the judge, who then makes the final sentencing determination.21 Do these statutes satisfy Ring?22

Another major question left unanswered by Ring, and the focus of this Note, is whether death row inmates, who have exhausted their direct appeals and were sentenced under schemes like the procedure invalidated by Ring, may obtain the benefit of Ring's holding when seeking federal habeas corpus relief. In Summerlin v. Stewart, the United States Court of Appeals for the Ninth Circuit answered this question in Warren Summerlin's favor, holding that federal habeas petitioners who were sentenced to death by judges sitting alone may obtain the benefit of the rule announced in Ring v. …