Death penalty loses again.

Byline: The Register-Guard

For the second time in less than a week, the U.S. Supreme Court has overturned an earlier ruling involving the death penalty, raising hopes that the court will one day abolish this flawed, fundamentally immoral practice entirely.

While it's far from certain that such optimism is warranted, it's clear that the attitude of the high court has begun to shift. This follows a decade in which death-penalty supporters won every major case in the Supreme Court and dozens of death row defendants, a disturbing number of them wrongly convicted, were executed across the nation.

Last week, 13 years after deciding that the Constitution permits the executions of mentally retarded killers, the court changed its mind and ruled that the execution of these individuals is unconstitutional. On Monday, 12 years after ruling that the Constitution creates no right to jury sentencing in death penalty cases, the court ruled that juries, not judges, must make life-or-death decisions in capital murder cases.

The latest ruling invalidates death penalty laws in five states and casts doubt on the laws of four others. It also throws out the death sentences of 168 inmates and could open the door to appeals by more than 500 others.

Neither of the two cases addresses the larger question of whether the death penalty itself is constitutional. Yet they strongly suggest a change of heart on the bench, one that hopefully will lead to the eventual abolition of capital punishment in this country.

In the most recent ruling, the court decided that Arizona's death-sentencing law violates the constitutional guarantee of a jury trial. Under that law, judges alone decided whether crimes included ``aggravating'' factors, such as extreme brutality, that call for capital punishment. Colorado, Idaho, Montana and Nebraska have similar laws.

The ruling underscores the court's position, first outlined in a landmark case two years ago, that juries, not judges, must find beyond a reasonable doubt any fact that would increase the penalty a defendant faces for a crime.

The court's decision will have the happy effect of taking sentencing out of the hands of judges, who in many states are up for periodic re-election and are well aware that re-election can hinge on death penalty records. Such political factors should play no role in the life-and-death decisions that take place every day in courtrooms across this country.

It would be preferable if neither juries nor judges had authority to impose death sentences. In recent years, it has become excruciatingly clear that our justice system is incapable of administering a death penalty with a high degree of accuracy and dependability. When defendants are imprisoned for life, the opportunity remains to free those who were wrongly convicted. When innocent defendants are executed, that opportunity is lost forever.

The Supreme Court has delivered two strong blows to capital punishment. There's reason to hope that the court's obvious discomfort with the death penalty means the knockout punch is coming.