OPINION OF THE COURT
SCHRIRO V. SUMMERLIN
542 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NO. 03-526
DORA B. SCHRIRO, DIRECTOR, ARIZONA DEPART- MENT OF
CORRECTIONS, PETITIONER
v. WARREN WESLEY SUMMERLIN
on writ of certiorari to the united states court of
appeals for the ninth circuit
[June 24, 2004]
Justice Scalia delivered the
opinion of the Court.
In this case, we decide whether
Ring v.
Arizona, 536
U. S. 584 (2002), applies retroactively to cases already final
on direct review.
I
In April 1981, Finance America
employee Brenna Bailey disappeared while on a house call to discuss
an outstanding debt with respondent Warren Summerlin’s wife. That
evening, an anonymous woman (later identified as respondent’s
mother-in-law) called the police and accused respondent of
murdering Bailey. Bailey’s partially nude body, her skull crushed,
was found the next morning in the trunk of her car, wrapped in a
bedspread from respondent’s home. Police arrested respondent and
later overheard him make incriminating remarks to his wife.
Respondent was convicted of
first-degree murder and sexual assault. Arizona’s capital
sentencing provisions in effect at the time authorized the death
penalty if one of several enumerated aggravating factors was
present. See Ariz. Rev. Stat. Ann. §§13–703(E), (F) (West 1978), as
amended by Act of May 1, 1979 Ariz. Sess. Laws ch. 144. Whether
those aggravating factors existed, however, was determined by the
trial judge rather than by a jury. §13–703(B). In this case the
judge, after a hearing, found two aggravating factors: a prior
felony conviction involving use or threatened use of violence,
§13–703(F)(2), and commission of the offense in an especially
heinous, cruel, or depraved manner, §13–703(F)(6). Finding no
mitigating factors, the judge imposed the death sentence. The
Arizona Supreme Court affirmed on direct review.
State v.
Summerlin, 138 Ariz. 426, 675 P. 2d 686 (1983).
Protracted state and federal habeas
proceedings followed. While respondent’s case was pending in the
Ninth Circuit, we decided
Apprendi v.
New Jersey,
530 U. S. 466 (2000), and
Ring v.
Arizona, supra. In
Apprendi, we interpreted the constitutional due-process
and jury-trial guarantees to require that, “[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.” 530 U. S., at 490.
In
Ring, we applied this principle to a death sentence
imposed under the Arizona sentencing scheme at issue here. We
concluded that, because Arizona law authorized the death penalty
only if an aggravating factor was present,
Apprendi
required the existence of such a factor to be proved to a jury
rather than to a judge. 536 U. S., at 603–609.[
Footnote 1] We specifically overruled our earlier
decision in
Walton v.
Arizona, 497 U. S. 639 (1990),
which had upheld an Arizona death sentence against a similar
challenge. 536 U. S., at 609.
The Ninth Circuit, relying on
Ring,
invalidated respondent’s death sentence.
Summerlin v.
Stewart, 341 F. 3d 1082, 1121 (2003) (en
banc).[
Footnote 2] It rejected
the argument that
Ring did not apply because respondent’s
conviction and sentence had become final on direct review before
Ring was decided. We granted certiorari.
540 U. S. 1045 (2003).[
Footnote 3]
II
When a decision of this Court
results in a “new rule,” that rule applies to all criminal cases
still pending on direct review.
Griffith v.
Kentucky, 479 U. S. 314, 328
(1987). As to convictions that are already final, however, the rule
applies only in limited circumstances. New
substantive
rules generally apply retroactively. This includes decisions that
narrow the scope of a criminal statute by interpreting its terms,
see
Bousley v.
United States, 523 U. S. 614, 620–621
(1998), as well as constitutional determinations that place
particular conduct or persons covered by the statute beyond the
State’s power to punish, see
Saffle v.
Parks, 494 U. S. 484, 494–495
(1990);
Teague v.
Lane, 489 U. S. 288, 311
(1989) (plurality opinion).[
Footnote 4] Such rules apply retroactively because they
“necessarily carry a significant risk that a defendant stands
convicted of ‘an act that the law does not make criminal’ ” or
faces a punishment that the law cannot impose upon him.
Bousley,
supra, at 620 (quoting
Davis v.
United States, 417 U. S. 333, 346
(1974)).
New rules of procedure, on the
other hand, generally do not apply retroactively. They do not
produce a class of persons convicted of conduct the law does not
make criminal, but merely raise the possibility that someone
convicted with use of the invalidated procedure might have been
acquitted otherwise. Because of this more speculative connection to
innocence, we give retroactive effect to only a small set of
“ ‘watershed rules of criminal procedure’ implicating the
fundamental fairness and accuracy of the criminal proceeding.”
Saffle,
supra, at 495 (quoting
Teague,
489 U. S., at 311). That a new procedural rule is “fundamental” in
some abstract sense is not enough; the rule must be one “without
which the likelihood of an accurate conviction is
seriously diminished.”
Id., at 313 (emphasis
added). This class of rules is extremely narrow, and “it is
unlikely that any … ‘ha[s] yet to emerge.’ ”
Tyler v.
Cain, 533 U. S. 656, 667,
n. 7 (2001) (quoting
Sawyer v.
Smith, 497 U. S. 227, 243
(1990)).
The Ninth Circuit agreed with the State that
Ring announced a new rule. 341 F. 3d, at 1108–1109.
It nevertheless applied the rule retroactively to respondent’s
case, relying on two alternative theories: first, that it was
substantive rather than procedural; and second, that it was a
“watershed” procedural rule entitled to retroactive effect. We
consider each theory in turn.
A
A rule is substantive rather than
procedural if it alters the range of conduct or the class of
persons that the law punishes. See
Bousley,
supra, at 620–621 (rule “hold[s] that a … statute does not
reach certain conduct” or “make[s] conduct criminal”);
Saffle,
supra, at 495 (rule “decriminalize[s] a
class of conduct [or] prohibit[s] the imposition of … punishment on
a particular class of persons”). In contrast, rules that regulate
only the
manner of determining the defendant’s culpability
are procedural. See
Bousley,
supra, at 620.
Judged by this standard,
Ring’s holding is properly classified as procedural.
Ring held that “a sentencing judge, sitting without a
jury, [may not] find an aggravating circumstance necessary for
imposition of the death penalty.” 536 U. S., at 609. Rather, “the
Sixth Amendment requires that [those circumstances] be found by a
jury.”
Ibid. This holding did not alter the range of
conduct Arizona law subjected to the death penalty. It could not
have; it rested entirely on the Sixth Amendment’s jury-trial
guarantee, a provision that has nothing to do with the range of
conduct a State may criminalize. Instead,
Ring altered the
range of permissible methods for determining whether a defendant’s
conduct is punishable by death, requiring that a jury rather than a
judge find the essential facts bearing on punishment. Rules that
allocate decisionmaking authority in this fashion are prototypical
procedural rules, a conclusion we have reached in numerous other
contexts. See
Gasperini v.
Center for Humanities,
Inc., 518
U. S. 415, 426 (1996) (
Erie doctrine);
Landgraf v.
USI Film Products, 511 U. S. 244, 280–281
(1994) (antiretroactivity presumption);
Dobbert v.
Florida, 432 U. S. 282, 293–294
(1977) (
Ex Post Facto Clause).
Respondent nevertheless argues that
Ring is substantive because it modified the elements of
the offense for which he was convicted. He relies on our statement
in
Ring that, “[b]ecause Arizona’s enumerated aggravating
factors operate as ‘the functional equivalent of an element of a
greater offense,’ the Sixth Amendment requires that they be found
by a jury. ” 536 U. S., at 609 (citation omitted); see also
Sattazahn v.
Pennsylvania, 537 U. S. 101, 111
(2003) (plurality opinion). The Ninth Circuit agreed, concluding
that
Ring “reposition[ed] Arizona’s aggravating factors as
elements of the separate offense of capital murder and reshap[ed]
the structure of Arizona murder law.” 341 F. 3d, at 1105.
A decision that modifies the elements of an
offense is normally substantive rather than procedural. New
elements alter the range of conduct the statute punishes, rendering
some formerly unlawful conduct lawful or vice versa. See
Bousley, 523 U. S., at 620–621. But that is not what
Ring did; the range of conduct punished by death in
Arizona was the same before
Ring as after.
Ring
held that,
because Arizona’s statutory aggravators
restricted (as a matter of state law) the class of death-eligible
defendants, those aggravators
effectively were elements
for federal constitutional purposes, and so were subject to the
procedural requirements the Constitution attaches to trial of
elements. 536 U. S., at 609. This Court’s holding that,
because
Arizona has made a certain fact essential to the death
penalty, that fact must be found by a jury, is not the same as
this Court’s making a certain fact essential to the death
penalty. The former was a procedural holding; the latter would be
substantive. The Ninth Circuit’s conclusion that
Ring
nonetheless “reshap[ed] the structure of Arizona murder law,” 341
F. 3d, at 1105, is particularly remarkable in the face of the
Arizona Supreme Court’s previous conclusion to the contrary. See
State v.
Towery, 204 Ariz. 386, 390–391, 64
P. 3d 828, 832–833, cert. dism’d,
539 U. S. 986
(2003).[
Footnote 5]
B
Respondent argues in the
alternative that
Ring falls under the retroactivity
exception for “ ‘watershed rules of criminal procedure’
implicating the fundamental fairness and accuracy of the criminal
proceeding.”
Saffle, 494 U. S., at 495 (quoting
Teague, 489 U. S., at 311). He offers several reasons why
juries are more accurate factfinders, including the tendency of
group deliberation to suppress individual eccentricities; the
jury’s protection from exposure to inadmissible evidence; and its
better representation of the common sense of the community. The
Ninth Circuit majority added others, including the claim that a
judge might be too acclimated to capital sentencing and that he
might be swayed by political pressure. 341 F. 3d, at
1109–1116. Respondent further notes that common-law authorities
praised the jury’s factfinding ability. See,
e.g., 3 W.
Blackstone, Commentaries on the Laws of England 380 (1768);
Georgia v.
Brailsford, 3 Dall. 1, 4 (1794) (jury
charge of Jay, C. J.).
The question here is not,
however, whether the Framers believed that juries are more accurate
factfinders than judges (perhaps so—they certainly thought juries
were more independent, see
Blakely v.
Washington,
ante, at ___–___ (slip op., at 9–12)). Nor is the question
whether juries actually
are more accurate factfinders than
judges (again, perhaps so). Rather, the question is whether
judicial factfinding so “
seriously diminishe[s]” accuracy
that there is an “ ‘impermissibly large risk’ ” of
punishing conduct the law does not reach.
Teague,
supra, at 312–313 (quoting
Desist v.
United
States, 394 U. S. 244, 262
(1969) (Harlan, J., dissenting)) (emphasis added). The evidence is
simply too equivocal to support that conclusion.
First, for every argument why juries are more
accurate factfinders, there is another why they are less accurate.
The Ninth Circuit dissent noted several, including juries’ tendency
to become confused over legal standards and to be influenced by
emotion or philosophical predisposition. 341 F. 3d, at
1129–1131 (opinion of Rawlinson, J.) (citing,
inter alia,
Eisenberg & Wells, Deadly Confusion: Juror Instructions in
Capital Cases, 79 Cornell L. Rev. 1 (1993); Garvey, The
Emotional Economy of Capital Sentencing, 75 N. Y. U.
L. Rev. 26 (2000); and Bowers, Sandys, & Steiner,
Foreclosed Impartiality in Capital Sentencing: Jurors’
Predispositions, Guilt-Trial Experience, and Premature Decision
Making, 83 Cornell L. Rev. 1476 (1998)). Members of this Court
have opined that judicial sentencing may yield more consistent
results because of judges’ greater experience. See
Proffitt v.
Florida, 428 U. S. 242, 252
(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.).
Finally, the mixed reception that the right to jury trial has been
given in other countries, see Vidmar, The Jury Elsewhere in the
World, in World Jury Systems 421–447 (N. Vidmar ed. 2000), though
irrelevant to the meaning and continued existence of that right
under our Constitution, surely makes it implausible that judicial
factfinding so “
seriously diminishe[s]” accuracy as to
produce an “ ‘impermissibly large risk’ ” of injustice.
When so many presumably reasonable minds continue to disagree over
whether juries are better factfinders
at all, we cannot
confidently say that judicial factfinding
seriously
diminishes accuracy.
Our decision in
DeStefano v.
Woods, 392 U. S. 631 (1968)
(per curiam), is on point. There we refused to give
retroactive effect to
Duncan v.
Louisiana, 391 U. S. 145 (1968),
which applied the Sixth Amendment’s jury-trial guarantee to the
States. While
DeStefano was decided under our
pre-
Teague retroactivity framework, its reasoning is
germane. We noted that, although “the right to jury trial generally
tends to prevent arbitrariness and repression[,] … ‘[w]e would not
assert … that every criminal trial—or any particular trial—held
before a judge alone is unfair or that a defendant may never be as
fairly treated by a judge as he would be by a jury.’ ” 392 U.
S., at 633–634 (quoting
Duncan,
supra, at 158).
We concluded that “[t]he values implemented by the right to jury
trial would not measurably be served by requiring retrial of all
persons convicted in the past by procedures not consistent with the
Sixth Amendment right to jury trial.” 392 U. S., at 634. If under
DeStefano a trial held entirely without a jury was not
impermissibly inaccurate, it is hard to see how a trial in which a
judge finds only aggravating factors could be.
The dissent contends that juries are more
accurate because they better reflect community standards in
deciding whether, for example, a murder was heinous, cruel, or
depraved.
Post, at 4 (opinion of Breyer, J.). But the
statute here does not condition death eligibility on whether the
offense is heinous, cruel, or depraved
as determined by
community standards. See Ariz. Rev. Stat. Ann. §13–703(F)(6)
(West 1978). It is easy to find enhanced accuracy in jury
determination when one redefines the statute’s substantive scope in
such manner as to ensure that result. The dissent also advances
several variations on the theme that death is different (or rather,
“dramatically different,”
post, at 6). Much of this
analysis is not an application of
Teague, but a rejection
of it, in favor of a broader endeavor to “balance competing
considerations,”
post, at 4. Even were we inclined to
revisit
Teague in this fashion, we would not agree with
the dissent’s conclusions. Finally, the dissent notes that, in
DeStefano, we considered factors other than enhanced
accuracy that are no longer relevant after
Teague. See
post, at 8. But we held in that case that “
[a]ll
three factors favor only prospective application of the rule.”
392 U. S., at 633 (emphasis added). Thus, the result would have
been the same even if enhanced accuracy were the sole criterion for
retroactivity.[
Footnote 6]
* * *
The right to jury trial is
fundamental to our system of criminal procedure, and States are
bound to enforce the Sixth Amendment’s guarantees as we interpret
them. But it does not follow that, when a criminal defendant has
had a full trial and one round of appeals in which the State
faithfully applied the Constitution as we understood it at the
time, he may nevertheless continue to litigate his claims
indefinitely in hopes that we will one day have a change of heart.
Ring announced a new procedural rule that does not apply
retroactively to cases already final on direct review. The contrary
judgment of the Ninth Circuit is reversed, and the case is remanded
for further proceedings consistent with this opinion.
It is so ordered.
Footnote 1
Because Arizona law already required
aggravating factors to be proved beyond a reasonable doubt, see
State v.
Jordan, 126 Ariz. 283, 286, 614
P. 2d 825, 828, cert. denied,
449 U. S. 986 (1980),
that aspect of
Apprendi was not at issue.
Footnote 2
Because respondent filed his habeas petition
before the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996, 110 Stat. 1214, the provisions of that Act do
not apply. See
Lindh v.
Murphy, 521 U. S. 320, 336–337
(1997).
Footnote 3
The State also sought certiorari on the
ground that there was no
Apprendi violation because the
prior-conviction aggravator, exempt from
Apprendi under
Almendarez-Torres v.
United States, 523 U. S. 224 (1998),
was sufficient standing alone to authorize the death penalty. We
denied certiorari on that issue,
540 U. S. 1045 (2003), and express no
opinion on it.
Footnote 4
We have sometimes referred to rules of this
latter type as falling under an exception to
Teague’s bar
on retroactive application of procedural rules, see,
e.g.,
Horn v.
Banks, 536 U. S. 266, 271, and
n. 5 (2002)
(per curiam); they are more accurately
characterized as substantive rules not subject to the bar.
Footnote 5
Respondent also argues that
Ring was
substantive because our understanding of Arizona law changed.
Compare
Ring v.
Arizona, 536
U. S. 584, 602–603 (2002), with
Apprendi v.
New
Jersey, 530 U. S. 466, 496–497 (2000). Even if
our understanding of state law changed, however, the actual content
of state law did not. See
State v.
Ring, 200
Ariz. 267, 279, 25 P. 3d 1139, 1151 (2001), rev’d on other
grounds,
536
U. S. 584 (2002);
State v.
Gretzler, 135
Ariz. 42, 54, 659 P. 2d 1, 13, cert. denied,
461 U. S. 971 (1983);
Johnson v.
Fankell, 520 U. S. 911, 916
(1997).
Footnote 6
The dissent distinguishes
DeStefano
on the ground that “this case involves only a small subclass of
defendants deprived of jury trial rights, the relevant harm within
that subclass is more widespread, the administration of justice
problem is far less serious, and the reliance interest less
weighty.”
Post, at 8. But the first, third, and fourth of
these points are irrelevant under
Teague, and the second,
insofar as it relates to accuracy, is an unsubstantiated assertion.
If jury trial significantly enhances accuracy, we would not have
been able to hold as we did in
DeStefano that the first
factor—“prevent[ing] arbitrariness and repression,” 392 U. S., at
633—did not favor retroactivity.
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