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On Feb. 25, 2020, the U.S. Supreme Court, in a 5-4 decision (McKinney v. Arizona, 589 U.S. ___ (2020)), affirmed a judgment of the Arizona Supreme Court which had upheld a death sentence. More than 20 years earlier, the defendant, James McKinney, had been convicted by a jury of two first-degree murders. Under Arizona law at the time, he was eligible for the death sentence if the trial judge found at least one aggravating circumstance. The judge so found, and thus a death sentence was imposed.

Almost 20 years later, on federal habeas corpus review, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit, by a vote of 6-5, decided that the Arizona courts had violated the 1982 decision of the U.S. Supreme Court in Eddings v. Oklahoma, 455 U.S. 104 (1982), in which it was held that a capital sentencer could not refuse to consider relevant mitigating evidence. McKinney's case was remanded to the Arizona Supreme Court where he then argued that he was entitled to be resentenced by a jury. The state urged that the Arizona Supreme Court could itself weigh the aggravating and mitigating circumstances as permitted by Clemons v. Mississippi, 494 U.S. 738 (1990). The Arizona Supreme Court agreed with the state and upheld McKinney's death sentence after reviewing the aggravating and mitigating circumstances.

In granting certiorari, the U.S. Supreme Court identified the issue as a "narrow" one, to wit, whether the Arizona Supreme Court "could not itself reweigh the aggravating and mitigating circumstances" or whether that function and the resentencing had to be performed by a jury. Writing for the five-member majority, Justice Kavanaugh analyzed previous decisions involving the question of whether an appellate court could itself weigh permissible aggravating and mitigating evidence in order to conduct required resentencing. The conclusion was that on a collateral attack in which the death penalty was affirmed on direct review before Ring v. Arizona, 536 US 584 (2002) was decided, an appellate court could, under Clemons, reweigh the aggravating and mitigating factors and sustain the death penalty. In 2002, Ring held that a jury had to find the existence of an aggravating factor which made a defendant death eligible, and Ring relied upon Apprendi v. New Jersey, 530 U.S. 466 (2000) in reaching that decision. In Apprendi, a divided New Jersey Supreme Court had affirmed a decision of the Appellate Division which upheld an extended sentence for a bias crime where a statute provided for an extended sentence where the crime was found to have been committed with a "biased purpose." The issue, as expressed by Justice O'Hern, was whether a jury would have had to have found that biased purpose beyond a reasonable doubt before a judge could impose the extended purpose. The majority found that the purpose of the crime was a sentencing factor and not an element of the offense that would have to be determined beyond a reasonable doubt. Justice Stein dissented (joined by Justice Handler), contending that the mental state of the defendant was an integral part of the offense and should be so characterized, thus requiring a jury determination beyond a reasonable doubt.

In a 5-4 decision by Justice Stevens, in which two of the concurring members also wrote separately, the Supreme Court of the United States reversed the New Jersey Supreme Court and held that judges could not increase or enhance a sentence (other than on the basis of prior convictions) beyond the prescribed statutory maximum unless the jury found the aggravating factor or factors under a beyond a reasonable doubt standard. In New Jersey, Apprendi applied to extended terms other than those based on recidivism, and the McKinney majority wrote that Apprendi made clear a judge could consider the aggravating and mitigating factors in imposing a sentence "within the range prescribed by the statute."

In the McKinney case, writing for the four dissenters, Justice Ginsburg pointed out that in Ring, the court found Arizona's "capital sentencing regime" to be unconstitutional. Under Ring, an "aggravating factor" necessary to find a defendant eligible for a death sentence has to be found by the jury because it is " 'the functional equivalent of an element of a greater offense.'"

Analyzing the procedural route the McKinney case had taken in reaching the Arizona Supreme Court, Justice Ginsburg concluded that the case had been before that tribunal on "direct review" and not "collateral review." Had it been the former, Justice Ginsburg urged, the Ring case would have applied, and a jury would have been required to find the aggravating circumstance beyond a reasonable doubt. The dissenters were in agreement that the Arizona Supreme Court was considering McKinney on direct review and had thus erred in its conclusion and in its appellate application of the "harmless error" standard.

We take no position on the actual holding of McKinney because it deals with a technical procedural issue concerning collateral attacks. We do point out, however, that it is now settled as a result of the landmark opinion in Apprendi and its progeny that an aggravating factor or factors permitting the death penalty must be found by a jury. We also note that, while New Jersey no longer has the death penalty, the law developed as a result of our extended term sentencing structure has had enormous and beneficial impact on the imposition of capital punishment wherever the death penalty can be imposed in the United States.