BY STUART BANNER

Whatever one thinks about the death penalty, the recent Supreme Court decision in Ring v. Arizona is true to the history of capital punishment in the United States.

The court held that the facts necessary to impose a death sentence must be found by the jury, not by a judge. The decision will require several states to change their sentencing procedures and will most likely require hundreds of death row inmates to be resentenced.

That some states ever authorized their judges to make life-or-death decisions was something that had almost never been done in American history.

The question of who should make these decisions first arose in the 1790s, when a few states began dividing murderers into two groups, those who would be executed and those who would go to prison. (Before that, they all received death sentences.) These states all vested the power over murderers’ lives in juries, not in judges. Over the 19th and 20th centuries, every state abandoned the mandatory death penalty, and, with very rare and temporary exceptions, every state likewise gave juries, not judges, the power over life and death.

The reason for this 200-year consensus is that capital punishment was supposed to reflect the will of the community, and the jurors were understood as the community’s representatives. Whether to send a criminal to his death was not a legal decision fit for a judge; it was a moral decision best made by the ordinary residents of the place where the crime had been committed. It was a decision for the hearts of the jurors, not the mind of the judge, a decision based on factors like whether the murderer was irredeemably vicious, whether the murder was especially shocking, and a host of other circumstances that could not be reduced to formal written rules.

Indeed, until relatively recently the whole system of capital punishment in place throughout the United States was designed with the same goal in mind — to have the death penalty express retribution on behalf of the local community. Executions were held in public, not because early Americans enjoyed violence more than we do, but because the public ceremony allowed everyone to join together in expressing their condemnation of the criminal and their solidarity with one another. Governors commuted death sentences in large numbers in response to petitions from local residents stating the sense of the community as to whether condemned criminals deserved to die. Capital punishment was supposed to embody community decisions, made collectively by ordinary people, whether as spectators, petitioners or jurors.

Over the 20th century, capital punishment lost this sense of community responsibility. Today governors scarcely commute any death sentences. Executions are carried out deep within state prisons, in the middle of the night, witnessed by only a handful of spectators, often far from the place where the murder was committed. We used to impose the death penalty ourselves; now a distant state imposes it for us. In this atmosphere, perhaps it is not surprising that states would begin allowing judges rather than juries to make the ultimate decision. By now it is easy to forget why juries had that power in the first place.

Banner is professor of law and author of “The Death Penalty: An American History."