Who should decide whether or not a death sentence is imposed, a judge or a jury?  In late June of this year, the United States Supreme Court decided by a seven to two margin that the jury, not the judge should make this decision.  Equally important, the Court made this decision retroactive, and there are approximately two hundred death row inmates who are now eligible for a new sentencing hearing. 

In 1966 Timothy Stuart Ring was convicted of a number of charges, including first degree murder in Sun City, Arizona.  In this matter, a jury in the state of Arizona convicted Mr. Ring of murder, and left it to the judge to decide whether or not Mr. Ring should be put to death, or alternatively, whether he should be sentenced to life in prison without the possibility of parole.  Judge Gregory H. Martin conducted the sentencing hearing and decided on the death penalty.  Mr. Ring appealed, contending the judge could not make this decision.  Seven Supreme Court Justices agreed with this contention, deciding as stated by Justice Ruth Bader Ginsberg: “Capital defendants, no less than non-capital defendants, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.”  Justice Ginsberg concluded that the right to a jury trial would be forever diminished if it did not include the finding of fact necessary to have one receive the death penalty. 

This decision will not affect us here in California.  In this state, it is already up to the jury to recommend a sentence of death.  The judge then has the option of either upholding the death sentence, or overturing the recommendation and deciding on life without the possibility of parole.  In other words, the judge can opt to not accede to the jury’s wishes if the jury recommends the death sentence; however, the judge cannot raise or heighten the sentence to become death if the jury does not recommend death. 

It is thought that this decision will lead to fewer death sentences, as statistics suggest that judges, if left on their own would impose the death penalty more often than do jurors. 

This is a good decision.  The right to a trial by jury does not mean it is only up to the jury to decide whether or not you’re innocent or guilty.  In order for that right to have teeth, the jury needs to be the decision maker regarding whether or not to recommend life or death.  I like the additional safeguard we have in this state whereby the judge can choose to disregard the recommendation of death if he so desires; however, he cannot choose to disregard a recommendation of life without the possibility of parole if that is the will of the jury.  I think we have a well-balanced law in this state, and I further believe that the United States Supreme Court made the right decision in the Ring case. 


Charlie Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger, Danis & Grover, and a psychotherapist at the Foothill Centre for Personal and Family Development.  Mr. Unger writes a bimonthly column on legal and psychological issues.  He can be reached at or at (818) 244-8694