SCHRIRO, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS v. SUMMERLIN

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348 OCTOBER TERM, 2003
Syllabus
SCHRIRO, DIRECTOR, ARIZONA DEPARTMENT OF
CORRECTIONS v. SUMMERLIN
certiorari to the united states court of appeals for
the ninth circuit
No. 03–526. Argued April 19, 2004—Decided June 24, 2004
Respondent was convicted of first-degree murder and sentenced to death
under Arizona’s capital sentencing scheme then in effect, which author-
ized the trial judge, rather than the jury, to determine the presence of
aggravating circumstances that make the defendant eligible for the
death sentence. The State Supreme Court affirmed on direct review.
While respondent’s subsequent federal habeas case was pending in the
Ninth Circuit, this Court decided that Apprendi v. New Jersey, 530 U. S.
466, 490, required the existence of an aggravating factor to be proved
to a jury rather than a judge under Arizona’s scheme. Ring v. Arizona,
536 U. S. 584, 603–609. The Ninth Circuit invalidated respondent’s
death sentence, rejecting the argument that Ring did not apply because
respondent’s conviction and sentence had become final on direct review
before Ring was decided.
Held: Ring does not apply retroactively to cases already final on direct
review. Pp. 351–358.
(a) A “new rule” resulting from a decision of this Court applies to
convictions that are already final only in limited circumstances. New
substantive rules generally apply retroactively, but new procedural
rules generally do not—only “ ‘watershed rules of criminal procedure’
implicating the fundamental fairness and accuracy of the criminal pro-
ceeding” are given retroactive effect. Saffle v. Parks, 494 U. S. 484,
495. Such a rule must be one “without which the likelihood of an accu-
rate conviction is seriously diminished.” Teague v. Lane, 489 U. S. 288,
313. Pp. 351–353.
(b) Ring’s holding is properly classified as procedural. It did not
alter the range of conduct or the class of persons subject to the death
penalty in Arizona, but only the method of determining whether the
defendant engaged in that conduct. Pp. 353–355.
(c) Ring did not announce a watershed rule of criminal procedure.
This Court cannot confidently say that judicial factfinding seriously di-
minishes accuracy. Pp. 355–358.
341 F. 3d 1082, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Kennedy, and Thomas, JJ., joined. Breyer, J.,

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Opinion of the Court
filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ.,
joined, post, p. 358.
John Pressley Todd, Assistant Attorney General of Ari-
zona, argued the cause for petitioner. With him on the
briefs were Terry Goddard, Attorney General, Mary R.
O’Grady, Solicitor General, Kent E. Cattani, Chief Counsel,
and Robert L. Ellman, Assistant Attorney General.
James A. Feldman argued the cause for the United States
as amicus curiae urging reversal. With him on the brief
were Solicitor General Olson, Assistant Attorney General
Wray, and Deputy Solicitor General Dreeben.
Ken Murray argued the cause for respondent. With him
on the brief were Fredric F. Kay, Michael L. Burke, Leticia
Marquez, John A. Stookey, and Daniel L. Kaplan.*
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 di-
rect review.
*Briefs of amici curiae urging reversal were filed for the State of Ne-
braska et al. by Jon Bruning, Attorney General of Nebraska, and J. Kirk
Brown, Solicitor General, and by the Attorneys General for their respec-
tive States as follows: William H. Pryor, Jr., of Alabama, Ken Salazar of
Colorado, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida,
Lisa Madigan of Illinois, Steve Carter of Indiana, Mike McGrath of Mon-
tana, Brian Sandoval of Nevada, Jim Petro of Ohio, W. A. Drew Edmond-
son of Oklahoma, Henry Dargan McMaster of South Carolina, Lawrence
E. Long of South Dakota, Greg Abbott of Texas, Mark L. Shurtleff of
Utah, and Jerry W. Kilgore of Virginia; for the Arizona Voice for Victims,
Inc., et al. by Steve Twist and Douglas E. Beloof; and for the Criminal
Justice Legal Foundation by Kent S. Scheidegger.
Briefs of amici curiae urging affirmance were filed for the National
Association of Criminal Defense Lawyers by Beth S. Brinkmann, Seth M.
Galanter, David M. Porter, and Peter Goldberger; and for Welsh S. White
et al. by Jeffrey T. Green, Mr. White, pro se, and Rudy Gerber, pro se.
Kate Lowenstein and Michael Avery filed a brief of amici curiae for
Murder Victims’ Families for Reconciliation et al.

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350 SCHRIRO v. SUMMERLIN
Opinion of the Court
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 eve-
ning, 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 ar-
rested respondent and later overheard him make incriminat-
ing remarks to his wife.
Respondent was convicted of first-degree murder and sex-
ual 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 re-
quire that, “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the pre-
scribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” 530 U. S., at 490. In

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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 603–609.1 We specifi-
cally overruled our earlier decision in Walton v. Arizona,
497 U. S. 639 (1990), which had upheld an Arizona death sen-
tence against a similar challenge. 536 U. S., at 609.
The Ninth Circuit, relying on Ring, invalidated respond-
ent’s death sentence. Summerlin v. Stewart, 341 F. 3d 1082,
1121 (2003) (en banc).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).3
II
When a decision of this Court results in a “new rule,” that
rule applies to all criminal cases still pending on direct re-
view. 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 gen-
erally apply retroactively. This includes decisions that nar-
row the scope of a criminal statute by interpreting its terms,
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.
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).
3 The State also sought certiorari on the ground that there was no Ap-
prendi violation because the prior-conviction aggravator, exempt from Ap-
prendi 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.

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Opinion of the Court
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).4 Such rules apply retroactively because they “nec-
essarily carry a significant risk that a defendant stands con-
victed 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 per-
sons 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 fun-
damental fairness and accuracy of the criminal proceeding.”
Saffle, supra, at 495 (quoting Teague, 489 U. S., at 311 (plural-
ity opinion)). 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 se-
riously 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 an-
nounced a new rule. 341 F. 3d, at 1108–1109. It neverthe-
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.

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less applied the rule retroactively to respondent’s case, rely-
ing on two alternative theories: first, that it was substantive
rather than procedural; and second, that it was a “water-
shed” procedural rule entitled to retroactive effect. We con-
sider 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 pun-
ishes. 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 “decriminal-
ize[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 de-
fendant’s culpability are procedural. See Bousley, supra,
at 620.
Judged by this standard, Ring’s holding is properly classi-
fied as procedural. Ring held that “a sentencing judge, sit-
ting without a jury, [may not] find an aggravating circum-
stance 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 hold-
ing 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

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(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 of-
fense,’ the Sixth Amendment requires that they be found by
a jury.” 536 U. S., at 609 (citation omitted); see also Satta-
zahn 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 nor-
mally 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 Ari-
zona’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 Con-
stitution attaches to trial of elements. 536 U. S., at 609.
This Court’s holding that, because Arizona has made a cer-
tain 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.

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Towery, 204 Ariz. 386, 390–391, 64 P. 3d 828, 832–833, cert.
dism’d, 539 U. S. 986 (2003).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 accu-
racy of the criminal proceeding.” Saffle, 494 U. S., at 495
(quoting Teague, 489 U. S., at 311). He offers several rea-
sons why juries are more accurate factfinders, including the
tendency of group deliberation to suppress individual eccen-
tricities; 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 fact-
finding 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 305–308).
Nor is the question whether juries actually are more accu-
rate factfinders than judges (again, perhaps so). Rather, the
question is whether judicial factfinding so “seriously dimin-
5 Respondent also argues that Ring was substantive because our under-
standing 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).

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Opinion of the Court
ishe[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 Instruc-
tions 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 re-
sults 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 fact-
finding 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 con-
fidently 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 retroac-

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tive 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 partic-
ular trial—held before a judge alone is unfair or that a de-
fendant may never be as fairly treated by a judge as he
would be by a jury.’ ” 392 U. S., at 633–634 (quoting Dun-
can, supra, at 158). We concluded that “[t]he values imple-
mented 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 Amend-
ment right to jury trial.” 392 U. S., at 634. If under De-
Stefano a trial held entirely without a jury was not imper-
missibly 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 be-
cause they better reflect community standards in deciding
whether, for example, a murder was heinous, cruel, or de-
praved. Post, at 361–362 (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 sub-
stantive 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 363). 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 362. 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

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enhanced accuracy that are no longer relevant after Teague.
See post, at 365. 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 crite-
rion for retroactivity.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 faith-
fully applied the Constitution as we understood it at the
time, he may nevertheless continue to litigate his claims in-
definitely 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.
Justice Breyer, with whom Justice Stevens, Justice
Souter, and Justice Ginsburg join, dissenting.
In Ring v. Arizona, 536 U. S. 584 (2002), this Court held
that a jury, not a judge, must make the findings necessary to
6 The dissent distinguishes DeStefano on the ground that “this case in-
volves only a small subclass of defendants deprived of jury trial rights,
the relevant harm within that subclass is more widespread, the adminis-
tration of justice problem is far less serious, and the reliance interest less
weighty.” Post, at 366. But the first, third, and fourth of these points
are irrelevant under Teague, and the second, insofar as it relates to accu-
racy, 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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qualify a person for punishment by death. In my view, that
holding amounts to a “watershed” procedural ruling that a
federal habeas court must apply when considering a constitu-
tional challenge to a “final” death sentence—i. e., a sentence
that was already final on direct review when Ring was
decided.
Teague v. Lane, 489 U. S. 288 (1989) (plurality opinion),
sets forth the relevant retroactivity criteria. A new proce-
dural rule applies retroactively in habeas proceedings if the
new procedure is (1) “implicit in the concept of ordered lib-
erty,” implicating “fundamental fairness,” and (2) “central to
an accurate determination of innocence or guilt,” such that
its absence “creates an impermissibly large risk that the in-
nocent will be convicted.” Id., at 311–313 (plurality opinion)
(internal quotation marks omitted). In the context of a
death sentence, where the matter is not one of “innocence or
guilt,” the second criterion asks whether the new procedure
is “central to an accurate determination” that death is a
legally appropriate punishment. Id., at 313 (emphasis
added). See Sawyer v. Smith, 497 U. S. 227, 244 (1990);
O’Dell v. Netherland, 521 U. S. 151, 171, n. 3 (1997) (Ste-
vens, J., dissenting).
The majority does not deny that Ring meets the first crite-
rion, that its holding is “implicit in the concept of ordered
liberty.” Cf. Apprendi v. New Jersey, 530 U. S. 466, 499
(2000) (Scalia, J., concurring) (absent Apprendi’s rule jury
trial right “has no intelligible content”); Ring, supra, at 610
(Scalia, J., concurring) (Apprendi involves the fundamental
meaning of the jury trial guarantee); Blakely v. Washington,
ante, at 301–302 (tracing Apprendi’s conception of the jury
trial right back to Blackstone); Duncan v. Louisiana, 391
U. S. 145, 157–158 (1968) (Sixth Amendment jury trial guar-
antee is a “fundamental right”). Rather, the majority fo-
cuses on whether Ring meets the second criterion: Is its rule
“central to an accurate determination” that death is a legally
appropriate punishment? Teague, supra, at 313.

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Breyer, J., dissenting
As I explained in my separate concurrence in Ring, I
believe the Eighth Amendment demands the use of a jury
in capital sentencing because a death sentence must reflect
a community-based judgment that the sentence constitutes
proper retribution. See 536 U. S., at 614 (opinion concurring
in judgment); see also Harris v. Alabama, 513 U. S. 504, 515–
526 (1995) (Stevens, J., dissenting); Spaziano v. Florida, 468
U. S. 447, 467–490 (1984) (Stevens, J., concurring in part and
dissenting in part). And a jury is significantly more likely
than a judge to “express the conscience of the community
on the ultimate question of life or death.” Witherspoon v.
Illinois, 391 U. S. 510, 519 (1968). As Justice Stevens has
pointed out:
“Juries—comprised as they are of a fair cross section
of the community—are more representative institutions
than is the judiciary; they reflect more accurately the
composition and experiences of the community as a
whole, and inevitably make decisions based on commu-
nity values more reliably, than can that segment of the
community that is selected for service on the bench.”
Spaziano, supra, at 486–487 (footnote omitted).
On this view of the matter, the right to have jury sentencing
in the capital context is both a fundamental aspect of consti-
tutional liberty and also significantly more likely to produce
an accurate assessment of whether death is the appropriate
punishment.
But my view is not the Ring majority’s view. The major-
ity held only that the jury must decide whether the special
aggravating factors that make the offender eligible for death
are present. 536 U. S., at 603–609. And it rested its deci-
sion that a jury, not a judge, must make that determination
upon the Court’s Sixth Amendment holding in Apprendi that
“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.

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In this case, the majority says that Ring’s Apprendi-
related rule cannot satisfy Teague’s accuracy-enhancing re-
quirement, for two reasons. First, it points out that for
“every argument why juries are more accurate factfinders,
there is another why they are less accurate.” Ante, at 356.
Hence, one cannot say “confidently” that “judicial factfinding
seriously diminishes accuracy.” Ibid. (emphasis in original).
Second, it relies on DeStefano v. Woods, 392 U. S. 631 (1968)
(per curiam), the case in which this Court considered
whether Duncan v. Louisiana, supra, which extended the
Sixth Amendment jury trial guarantee to the States, should
apply retroactively. The Court decided that Duncan should
not have retroactive effect. “If,” the majority concludes,
“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.” Ante, at 357.
The majority, however, overlooks three additional consid-
erations that lead me to the opposite conclusion.
First, the factfinder’s role in determining the applicability
of aggravating factors in a death case is a special role that
can involve, not simply the finding of brute facts, but also the
making of death-related, community-based value judgments.
The leading single aggravator charged in Arizona, for exam-
ple, requires the factfinder to decide whether the crime was
committed in an “especially heinous, cruel, or depraved man-
ner.” Ariz. Rev. Stat. Ann. § 13–703(F)(6) (West Supp.
2003); see Office of Attorney General, State of Arizona, Capi-
tal Case Commission Final Report (2002). Three of the
other four Ring-affected States use a similar aggravator.
See Colo. Rev. Stat. § 18–1.3–1201(5)( j) (Lexis 2003); Idaho
Code § 19–2515(9)(e) (Lexis Supp. 2003); Neb. Rev. Stat.
§ 29–2523(1)(d) (1995). Words like “especially heinous,”
“cruel,” or “depraved”—particularly when asked in the con-
text of a death sentence proceeding—require reference to
community-based standards, standards that incorporate val-
ues. (Indeed, Nebraska’s standard explicitly asks the fact-

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finder to assess the defendant’s conduct in light of “ordinary
standards of morality and intelligence.” Ibid.) A jury is
better equipped than a judge to identify and to apply those
standards accurately. See supra, at 360.
Second, Teague’s basic purpose strongly favors retroactive
application of Ring’s rule. Teague’s retroactivity principles
reflect the Court’s effort to balance competing considera-
tions. See 489 U. S., at 309–313; Mackey v. United States,
401 U. S. 667, 675 (1971) (Harlan, J., concurring in two judg-
ments and dissenting in one); Desist v. United States, 394
U. S. 244, 256 (1969) (Harlan, J., dissenting). On the one
hand, interests related to certain of the Great Writ’s basic
objectives—protecting the innocent against erroneous con-
viction or punishment and assuring fundamentally fair proce-
dures—favor applying a new procedural rule retroactively.
Teague, supra, at 312–313; Mackey, 401 U. S., at 693–694.
So too does the legal system’s commitment to “equal jus-
tice”—i. e., to “assur[ing] a uniformity of ultimate treatment
among prisoners.” Id., at 689.
Where death-sentence-related factfinding is at issue, these
considerations have unusually strong force. This Court has
made clear that in a capital case “the Eighth Amendment
requires a greater degree of accuracy . . . than would be
true in a noncapital case.” Gilmore v. Taylor, 508 U. S. 333,
342 (1993). Hence, the risk of error that the law can tol-
erate is correspondingly diminished. At the same time,
the “qualitative difference of death from all other punish-
ments”—namely, its severity and irrevocability—“requires a
correspondingly greater degree of scrutiny of the capital
sentencing determination” than of other criminal judgments.
California v. Ramos, 463 U. S. 992, 998–999 (1983); see also
Spaziano, 468 U. S., at 468 (Stevens, J., concurring in part
and dissenting in part) (the Eighth Amendment mandates
special safeguards to ensure that death is “a justified re-
sponse to a given offense”); Ake v. Oklahoma, 470 U. S. 68,

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Breyer, J., dissenting
87 (1985) (Burger, C. J., concurring in judgment) (“In capital
cases the finality of the sentence imposed warrants protec-
tions that may or may not be required in other cases”).
Consider, too, the law’s commitment to uniformity.
Mackey, supra, at 689. Is treatment “uniform” when two
offenders each have been sentenced to death through the use
of procedures that we now know violate the Constitution—
but one is allowed to go to his death while the other receives
a new, constitutionally proper sentencing proceeding? Out-
side the capital sentencing context, one might understand
the nature of the difference that the word “finality” implies:
One prisoner is already serving a final sentence, the other’s
has not yet begun. But a death sentence is different in that
it seems to be, and it is, an entirely future event—an event
not yet undergone by either prisoner. And in respect to
that event, both prisoners are, in every important respect, in
the same position. I understand there is a “finality-based”
difference. But given the dramatically different nature of
death, that difference diminishes in importance.
Certainly the ordinary citizen will not understand the dif-
ference. That citizen will simply witness two individuals,
both sentenced through the use of unconstitutional proce-
dures, one individual going to his death, the other saved, all
through an accident of timing. How can the Court square
this spectacle with what it has called the “vital importance
to the defendant and to the community that any decision to
impose the death sentence be, and appear to be, based on
reason”? Beck v. Alabama, 447 U. S. 625, 637–638 (1980)
(internal quotation marks omitted).
Justice Scalia’s observation, in his concurring opinion
in Ring, underscores the point. He wrote there that “the
repeated spectacle of a man’s going to his death because
a judge found that an aggravating factor existed” would
undermine “our people’s traditional . . . veneration for the
protection of the jury in criminal cases.” 536 U. S., at 612
(emphasis in original). If that is so, it is equally so whether

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the judge found that aggravating factor before or after
Ring.
On the other hand, Teague recognizes that important in-
terests argue against, and indeed generally forbid, retroac-
tive application of new procedural rules. These interests in-
clude the “interest in insuring that there will at some point
be the certainty that comes with an end to litigation”; the
desirability of assuring that “attention will ultimately be fo-
cused not on whether a conviction was free from error but
rather on whether the prisoner can be restored to a useful
place in the community”; and the fact that society does not
have endless resources to spend upon retrials, which (where
witnesses have become unavailable and other evidence stale)
may well produce unreliable results. Mackey, supra, at
690–691 (internal quotation marks omitted); see also Teague,
489 U. S., at 308–310. Comity interests and respect for
state autonomy point in the same direction. See id., at 308;
Engle v. Isaac, 456 U. S. 107, 128, n. 33 (1982).
Certain of these interests are unusually weak where capi-
tal sentencing proceedings are at issue. Retroactivity here,
for example, would not require inordinate expenditure of
state resources. A decision making Ring retroactive would
affect approximately 110 individuals on death row. Court
Hears Arguments in Latest Death Case, N. Y. L. J., Apr. 20,
2004, p. 5. This number, however large in absolute terms,
is small compared with the approximately 1.2 million individ-
uals presently confined in state prisons. U. S. Dept. of Jus-
tice, Bureau of Justice Statistics Bulletin, Prisoner and Jail
Inmates at Midyear 2003, p. 2 (May 2004). Consequently,
the impact on resources is likely to be much less than if
a rule affecting the ordinary criminal process were made
retroactive.
Further, where the issue is “life or death,” the concern
that “attention . . . ultimately” should be focused “on whether
the prisoner can be restored to a useful place in the commu-
nity” is barely relevant. Mackey, 401 U. S., at 690 (internal

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Breyer, J., dissenting
quotation marks omitted). Finally, I believe we should dis-
count ordinary finality interests in a death case, for those
interests are comparative in nature and death-related collat-
eral proceedings, in any event, may stretch on for many
years regardless. Cf. Teague, supra, at 321, n. 3 (Stevens,
J., concurring in part and concurring in judgment) (“A major
reason that Justice Harlan espoused limited retroactivity in
collateral proceedings was the interest in making convictions
final, an interest that is wholly inapplicable to the capital
sentencing context”).
Third, DeStefano v. Woods, 392 U. S. 631 (1968) (per cu-
riam), fails to give the majority the support for which it
hopes. DeStefano did decide that Duncan’s holding—that
the Sixth Amendment jury trial right applies to the States—
should not have retroactive effect. But the Court decided
DeStefano before Teague. And it explicitly took into ac-
count “(a) the purpose to be served by the new standards,
(b) the extent of the reliance by law enforcement authorities
on the old standards, and (c) the effect on the administration
of justice of a retroactive application of the new standards.”
392 U. S., at 633 (internal quotation marks omitted).
The latter two factors, “reliance” and “effect on the admin-
istration of justice,” argued strongly against retroactivity.
Retroactivity there, unlike here, would have thrown the
prison doors open wide—at least in Louisiana and possibly
in other States as well. Id., at 634. The Court believed
that the first factor—“the purpose to be served by the new
standards”—also favored prospective application only. But
the Court described that purpose broadly, as “prevent-
[ing] arbitrariness and repression”; it recognized that some
judge-only trials might have been fair; and it concluded that
the values served by the jury trial guarantee “would not
measurably be served by requiring retrial of all persons con-
victed in the past” without a jury. Id., at 633–634 (empha-
sis added).

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By contrast, this case involves only a small subclass of de-
fendants 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. For these reasons, I believe the DeStefano
Court would have come out differently had it been consider-
ing Ring’s rule. Insofar as DeStefano has any relevance
here, it highlights the importance, when making retroactiv-
ity decisions, of taking account of the considerations that un-
derlie Teague’s categorical rules. And, as shown above,
those considerations argue in favor of retroactivity in this
case. See supra, at 362–365.
As I have pointed out, the majority does not deny that
Ring’s rule makes some contribution to greater accuracy. It
simply is unable to say “confidently” that the absence of
Ring’s rule creates an “ ‘ “impermissibly large risk” ’ ” that
the death penalty was improperly imposed. Ante, at 356.
For the reasons stated, I believe that the risk is one that the
law need not and should not tolerate. Judged in light of
Teague’s basic purpose, Ring’s requirement that a jury, and
not a judge, must apply the death sentence aggravators an-
nounces a watershed rule of criminal procedure that should
be applied retroactively in habeas proceedings.
I respectfully dissent.