Editorial: Death penalty: The rules have changed

Wednesday, June 26, 2002 | 8:58 a.m.

The U.S. Supreme Court's ruling on Monday that juries, not judges, must decide whether death is an appropriate sentence for convicted killers should put an end to Nevada's three-judge panels. It certainly puts an end to the system used by five states, in which the juries decided on the facts of the case and the judge alone decided whether to define them as aggravating or mitigating. If the "aggravating" facts outweighed the mitigating facts, the judge would impose the death sentence. And the decision will likely end the system in four other states, where juries offer recommendations on the facts but the ultimate decision rests with the judge.

The Supreme Court's ruling did not mention Nevada because juries here do get to decide whether facts are aggravating or mitigating when deciding penalties. Whenever juries are divided, however, a three-judge panel is appointed. Here is where Nevada is affected by Monday's ruling. In our view, the court's ruling clearly removes judges from penalty decisions in all cases except those in which a defendant waives his right to a jury trial. Whether the ruling pertains to past cases will depend on the Nevada Supreme Court's decision in an appeal scheduled to be heard this fall. But it certainly should pertain to future cases. We agree with the U.S. Supreme Court's interpretation of Sixth Amendment protections, that a trial includes the penalty phase and that it's the jury -- not a judge or a panel of judges -- that must decide upon all of the facts bearing upon the sentence.