When it was decided in 2002, Ring v. Arizona appeared to be a watershed in the way capital sentences are handed out in the United States: it overturned several states’ death penalty statutes and appeared to imperil many more. Ring announced that the rule of Apprendi v. New Jersey applied to capital sentencing and required that any fact necessary to the imposition of the death penalty be proven to a jury and beyond a reasonable doubt. Yet eight years after the case was decided, it is not clear what, if anything, Ring in fact demands of the states. Determining exactly what constitutes fact-finding, and therefore which tasks must be carried out by the capital jury rather than a judge, remains a challenging task.

In this article we investigate the impact of Ring by analyzing several typical capital statutes against both the language of the Ring opinion and the broader framework of the Court’s Sixth and Eighth Amendment jurisprudence. What we find is that in all but the most obvious cases, Ring’s mandate is an extraordinarily weak one. What is more, Ring creates perverse incentives for the states; juries can be removed from the capital sentencing equation entirely simply by making capital decisionmaking open-ended and amorphous rather than fact-based and legalistic. We argue that this pressure toward open-ended decisionmaking creates significant Eighth Amendment concerns.

We conclude that this tension between the Sixth and Eighth Amendments demonstrates the limits of Ring’s narrow focus on fact-finding and argues for the grounding of a more robust capital jury right in the Eighth Amendment.