More than Just a Factfinder: The Right to Unanimous Jury Sentencing in Capital Cases

Richa Bijlani* May, 2022

For some defendants, sentencing may be even more harrowing than a determination of guilt or innocence. Those facing capital punishment have the most to lose at the sentencing phase. The Supreme Court is not ignorant to this reality, finding in Ring v. Arizona that “the Sixth Amendment would be senselessly diminished” if it had no application to death penalty proceedings. Yet under its permissive jurisprudence, the Court has suggested that the Sixth Amendment is satisfied in the death penalty context even if its protections vanish postconviction. This Note argues instead that the Sixth Amendment—specifically the jury right—should protect defendants more during the capital sentencing phase, not less. Ultimately, it contends that defendants have a constitutional right to jury sentencing by a unanimous verdict before facing the death penalty.

Introduction

At least fourteen people wanted Nathaniel Woods dead: ten out of the twelve jurors, three widows, and the prosecutor. At trial, a different set of twelve jurors convicted Mr. Woods of killing three police officers in Alabama.¹ The only question left was whether Mr. Woods should die at the hands of the State. The prosecution made Mr. Woods out to be a crack cocaine dealer, police hater, and criminal mastermind who lured police officers into a house and helped kill three of them; for this, the officers’ widows and the prosecution believed he ought to die.²

But two jurors did not agree that Mr. Woods, a twenty-eight-year-old Black man, deserved death.³ These jurors may have been troubled by the prosecution’s failure to show that Mr. Woods plotted to ambush the officers.⁴ Evidence revealed not only that Mr. Woods never fired a weapon that day but also that his co-defendant confessed to being the sole triggerman.⁵ Nonetheless, Alabama executed Mr. Woods over the objections of two jurors just for being an accomplice.⁶

Today, if Mr. Woods had received the same verdict in any neighboring state, he would still be alive.⁷ But in Alabama, two holdouts are still as good as none: state law permits a trial judge to impose a death sentence when at least ten jurors vote in its favor.⁸ In every jurisdiction in the United States, the Sixth Amendment requires that a jury unanimously agrees on a guilty verdict to convict a defendant.⁹ Yet in Alabama, this right to a unanimous verdict does not extend to sentencing decisions.¹⁰

This Alabama law makes clear that legislatures and courts do not believe that the Constitution affords defendants facing capital punishment the same rights during sentencing as during trial. And the United States Supreme Court has seemingly endorsed this approach, noting that capital sentencing does not “implicate the entire panoply of criminal trial procedural rights.”¹¹ Treating sentencing as constitutionally distinct from trial means that defendants like Mr. Woods do not receive the Sixth Amendment’s full protection. The result is that over ten percent of the individuals on death row in the United States could have had their cases decided by one person acting alone or over the objections of up to two jurors.¹²

The proffered reason for drawing this line in the sand is often the same: this is how we’ve always done it.¹³ The Court has even gone so far as to suggest that defendants actually benefit from the limitation of some constitutional rights, like the confrontation right at trial.¹⁴ Because of a shift in focus from retribution to reformation and rehabilitation in sentencing, the Court stated that “by careful study of the lives and personalities of convicted offenders[,] many could be less severely punished and restored sooner to complete freedom and useful citizenship.”¹⁵ This justification for distinguishing between constitutional rights at trial and those at sentencing, however, is less convincing when applied to a purely retributive sentence: death.

For defendants, the sentencing phase can be more harrowing than a determination of guilt or innocence. And those facing capital punishment have the most to lose. While the Court has recognized this reality by calling for “heightened safeguards in accordance with the Sixth Amendment” in the death penalty context, it has thus far accepted that these safeguards promptly vanish after a conviction.¹⁶

In contrast, this Note argues that the Sixth Amendment guarantees a constitutional right to sentencing by a unanimous jury verdict in death penalty cases. The uniqueness of death penalty sentencing requires that the Sixth Amendment confer more protection to defendants facing capital punishment, not less.¹⁷ Part I analyzes the Court’s recent efforts to clarify the extent of the Sixth Amendment jury right. It reveals not only the difficulty the Court has with drawing bright-line rules in this area but also the steady expansion of the Sixth Amendment’s scope. Part II describes current state practices and explains how the doctrine as it stands may authorize such unconstitutional sentencing schemes. Part III then presents two arguments: first, that the Sixth Amendment requires juries to be the ones to impose death sentences; second, that the Sixth Amendment prohibits the imposition of a death sentence following a nonunanimous verdict. Finally, Part III explains why juries are better positioned than judges to make these decisions and proposes language for jurisdictions that choose to retain the death penalty.¹⁸

I. The Sixth Amendment Jury Right

The right to a trial by jury in criminal prosecutions is a right so nice, they named it twice: the Constitution’s Framers enshrined it in both Article III, Section 2 and the Sixth Amendment.¹⁹ The text of the Constitution alone, however, hardly explains the extent of this right.²⁰ The Supreme Court has developed an extensive body of case law defining when and how the Sixth Amendment applies.²¹ These cases highlight the importance of the Sixth Amendment’s jury right in the guilt-innocence phase of certain criminal trials.²² The Court’s Sixth Amendment jurisprudence, however, significantly limits these rights at sentencing.²³ This Part first discusses how Ramos v. Louisiana and Apprendi v. New Jersey together require a unanimous jury to determine the accused’s guilt or innocence and therefore the appropriate sentencing range based on those verdicts; second, how Ring v. Arizona and Hurst v. Florida built on this momentum by requiring the same for findings that would make a defendant eligible for death.

A. The Trial Jury Right

1. Ramos v. Louisiana

In a jury trial, a defendant must receive a unanimous guilty verdict from the jurors before they can receive any sentence.²⁴ This procedure, however, was not always the case. In 1972, the Court considered Oregon and Louisiana laws permitting convictions of serious crimes by a nonunanimous jury.²⁵ Such laws do not directly contradict the text of the Constitution, as the Sixth Amendment does not expressly require unanimity.²⁶The Supreme Court therefore upheld the Oregon and Louisiana laws.²⁷

These cases paved the way for Evangelisto Ramos’s conviction in June 2016: ten Louisiana jurors sitting on a twelve-person jury found Mr. Ramos guilty of second-degree murder.²⁸ The remaining two jurors voted to acquit Mr. Ramos because the State failed to meet its burden of proving guilt beyond a reasonable doubt.²⁹ Under the Louisiana state constitution, only those ten guilty votes mattered.³⁰ Mr. Ramos was sentenced to life without parole.³¹

When Mr. Ramos challenged his conviction,³² Louisiana asked the Court to follow the four-justice plurality in Apodaca v. Oregon, which applied a cost-benefit analysis to the nonunanimous jury verdict rules.³³ But the Supreme Court held that the Sixth Amendment’s promise of a “trial by an impartial jury” required a unanimous jury verdict in order to convict Mr. Ramos.³⁴ In overturning Apodaca, the majority rejected the dissent’s argument that Mr. Ramos’s conviction should be affirmed based on the doctrine of stare decisis.³⁵

Justice Gorsuch, writing for the majority, disagreed with the State in part because “[l]ost in the accounting are the racially discriminatory reasons that Louisiana and Oregon adopted their peculiar rules in the first place.”³⁶ While the dissent criticized the majority justices in Ramos for acknowledging the racist history of the nonunanimous verdict laws,³⁷ Justice Gorsuch asked, “how can that analysis proceed to ignore the very functions those rules were adopted to serve?”³⁸

Ultimately, the majority held that the right to a unanimous jury verdict, an “ancient guarantee,” cannot be subjected to the Court’s “functionalist assessment.”³⁹The Court, using English common law,⁴⁰ state practices,⁴¹ and other documents written contemporaneously with the ratification of the Sixth Amendment,⁴² concluded that convicting a criminal defendant of a felony requires unanimity.⁴³ Because the Court found that this right is “fundamental to the American scheme of justice,” it is incorporated against the states by the Due Process Clause of the Fourteenth Amendment.⁴⁴The willingness of a majority of the Court to overturn precedent to reach this conclusion highlights the significance of unanimity in jury verdicts.

2. Apprendi v. New Jersey

When the accused exercises their right to a jury trial, the Constitution requires jurors to play an important role in determining sentencing ranges. In Apprendi v. New Jersey, the Supreme Court considered the constitutionality of applying a sentence-enhancing statute without a jury determination of the relevant facts beyond a reasonable doubt.⁴⁵ Charles Apprendi was arrested for firing several shots into the home of an African American family in New Jersey.⁴⁶ As part of Mr. Apprendi’s plea agreement, the State reserved the right to request that the trial judge impose an enhanced sentence under New Jersey’s hate crime statute.⁴⁷ The state’s hate crime statute allows trial judges to impose an enhanced sentence if the judge finds, by a preponderance of the evidence, that the defendant committed the offense with the purpose to intimidate a person or group based on race.⁴⁸ Finding that the evidentiary standard was met, the trial judge held that Mr. Apprendi’s actions were taken “with a purpose to intimidate” and thus fell under New Jersey’s hate crime statute.⁴⁹

On appeal to the Supreme Court, Mr. Apprendi argued that the Due Process Clause requires a jury to make a finding of bias beyond a reasonable doubt before the hate crime enhancement can apply.⁵⁰ The State, however, argued that the trial judge’s application of the hate crime statute was proper because the determination as to whether Mr. Apprendi’s actions were taken with a “purpose to intimidate” was a “sentencing factor” rather than an “element” of the offense.⁵¹

The Court rejected this argument.⁵² Applying a functional approach to the hate crime statute, the Court concluded that “the relevant inquiry is one not of form, but of effect” and asked if the finding “expose[d] the defendant to a greater punishment than that authorized by the jury’s guilty verdict.”⁵³ Writing for the majority, Justice Stevens invoked the “historical foundation” of these rights under the Fourteenth and Sixth Amendments, which “extends down centuries into the common law” and limits judges’ discretion to operate within the statutory penalties.⁵⁴ As a result, the Court reversed the lower court’s decision and remanded Mr. Apprendi’s case for resentencing.⁵⁵

B. Applying the Sixth Amendment to Capital Sentencing

In addition to cases like Ramos and Apprendi, the Court has also considered Sixth Amendment sentencing cases where the defendant received the ultimate punishment: death. These cases follow the Court’s long-held belief that the Constitution affords defendants facing capital punishment at least the same extent of constitutional rights as other criminal defendants.⁵⁶

1. Ring v. Arizona

In Ring v. Arizona, the Court invalidated Arizona’s use of judges to determine the presence of aggravating factors necessary to trigger the death penalty.⁵⁷ Timothy Ring’s jury found him guilty of felony murder occurring in the course of an armed robbery.⁵⁸ Under Arizona law at the time, a defendant convicted of felony murder could only receive the death penalty if they were the victim’s actual killer and if the judge found at least one aggravating factor and no mitigating factors.⁵⁹ The judge found that Mr. Ring was the actual killer, that the offense was committed for pecuniary gain (an aggravating factor), and that Mr. Ring’s minimal criminal record (a mitigating factor) did not call for leniency.⁶⁰ Accordingly, the judge sentenced Mr. Ring to death.⁶¹

On appeal, Mr. Ring argued that Arizona’s capital sentencing scheme violated his Sixth Amendment right under Apprendi because it gave the trial judge sole authority to determine both aggravating and mitigating factors.⁶² The State countered that the Court had previously upheld Arizona’s capital sentencing scheme in a case called Walton v. Arizona,⁶³ and the Apprendi Court had declined to overrule that precedent.⁶⁴

Writing for the majority, Justice Ginsburg found the two decisions “irreconcilable” and overruled Walton.⁶⁵ The Court stated that “the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the factfinding necessary to put him to death.”⁶⁶ In reaching this conclusion, the Court relied in part on original practice and meaning.⁶⁷ Under Apprendi, convicted defendants have the right to a jury determination of any facts that increase the maximum punishment.⁶⁸ Ring essentially found that eligibility for the death penalty requires the same standard.⁶⁹ In applying Apprendi, the Court held that the jury must make the factual findings that turn a crime into a capital offense.⁷⁰

The Court rejected the State’s argument that defendants were at risk of arbitrary imposition of the death penalty because judges are better suited than juries to make these findings.⁷¹ Instead, it reasoned that there was no conclusive evidence establishing that judges are more equipped to make death penalty determinations.⁷²

Despite this apparent consensus, Justice Scalia made clear in his concurrence that he believed that judges may continue making the ultimate sentencing decision.⁷³ Justice Breyer came to a different conclusion than Justices Scalia and Thomas but used different reasoning from the majority. He would have held that the Eighth Amendment mandates jury sentencing in capital cases.⁷⁴ This concurrence left open the question of whether Justice Breyer disagreed with the majority opinion because it failed to require jury sentencing or because he believed the majority did require jury sentencing but under the Sixth Amendment instead of the Eighth Amendment.

2. Hurst v. Florida

In Hurst v. Florida, the Court again expressed concern with the constitutionality of trial judges making a necessary finding to impose a death sentence.⁷⁵ Hurst struck down a statute in which the final determination about whether the defendant would be subjected to the death penalty was left up to the judge.⁷⁶ A Florida jury convicted Timothy Hurst of first-degree murder and recommended the death penalty.⁷⁷ Following state law, Mr. Hurst’s trial judge independently weighed the aggravating and mitigating factors after the jury’s recommendation and sentenced Mr. Hurst to death.⁷⁸ On appeal, the court granted Mr. Hurst a new sentencing hearing.⁷⁹ Again, the jury recommended death, and the judge found the facts necessary to sentence Mr. Hurst to death.⁸⁰

In light of Ring, Mr. Hurst then challenged Florida’s capital sentencing scheme before the Supreme Court.⁸¹ Even though the jury in Mr. Hurst’s case recommended a death sentence, the Court took issue with the way Florida law allowed judges to authorize the death penalty even over a jury’s recommendation of a life sentence.⁸² Like the Arizona statute, this statute also required the judge to weigh aggravating factors against mitigating factors and make the final decision regarding the death penalty.⁸³ Thus, the Court declared Florida’s scheme unconstitutional and held that “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.”⁸⁴

II. Current State Practices

Lower courts and state legislatures have not settled on a uniform interpretation of the Supreme Court’s somewhat uncertain jurisprudence in this area: different jurisdictions have adopted capital sentencing schemes that involve juries to varying degrees. All death penalty jurisdictions use bifurcated proceedings,⁸⁵ separating capital cases into a “guilt” phase and a “penalty” phase.⁸⁶ During the penalty phase, the defendant can typically be sentenced to death, life in prison, or a lesser penalty. An elaborate body of Sixth Amendment and Eighth Amendment case law governs this phase.⁸⁷ Determining the defendant’s sentence requires at least two steps: “eligibility” and “selection.”⁸⁸

First, the factfinder must determine whether the defendant is “eligible” for the death penalty. This step involves considering the list of statutory aggravating factors that legislatures use to define serious and reprehensible circumstances that make the defendant “especially deserving of death.”⁸⁹ For example, Georgia’s capital sentencing statute includes as aggravating factors the existence of a prior conviction for a capital felony, the receipt of monetary compensation for committing the crime, and the use of a dangerous weapon during the commission of the crime, among others.⁹⁰ A finding of one or more such factors makes a defendant eligible for a death sentence.⁹¹

The second step in capital sentencing requires the factfinder to consider mitigating evidence proffered by the defendant and weigh it against the aggravating factor(s).⁹² Federal law, for instance, requires the factfinder to consider factors like the defendant’s background and criminal record among the other enumerated mitigating circumstances.⁹³

After the Court’s decisions in Ring and Hurst, all death penalty jurisdictions must require the jury to find beyond a reasonable doubt all facts relevant to capital sentencing.⁹⁴ While findings of aggravating and mitigating factors are accepted as factual in nature,⁹⁵ not every court gives them equal weight.⁹⁶ Despite inconsistencies in how these factors are weighed, most jurisdictions require the jury—not the judge—to make the ultimate sentencing decision.

Section II.A describes how many jurisdictions require a unanimous jury verdict to impose a death sentence. Yet six states continue to deny defendants this constitutional safeguard. Section II.B examines two states—Nebraska and Montana—that allow judges to make final capital sentencing decisions in all cases. Next, Section II.C considers Indiana and Missouri laws which require the judge to determine the sentence when a capital jury deadlocks. Section II.D highlights the only state that permits a nonunanimous jury to impose a death sentence: Alabama. Finally, Section II.E analyzes a recent Florida Supreme Court decision that threatens to upend the practice of requiring unanimous jury sentencing in capital cases.

A. Twenty-Two Jurisdictions Require a Unanimous Jury to Impose a Death Sentence

Most death penalty jurisdictions require a unanimous jury verdict at both the guilt and punishment phases.⁹⁷ Judges, though, can continue to play an important role even in jurisdictions that leave the ultimate sentencing decision to the jury.⁹⁸ Unlike the Florida statute that the Court found unconstitutional in Hurst, California’s sentencing scheme does not allow the judge to impose a death sentence when a jury recommends life in prison.⁹⁹ Instead, a judge may only prevent the imposition of the death penalty when they find that the jury’s verdict is contrary to the law or the evidence presented.¹⁰⁰ Similarly, judges in many jurisdictions are forbidden from imposing the death penalty when the jury fails to unanimously agree on a sentence.¹⁰¹

B. Two States Permit Judges to Make Final Capital Sentencing Decisions in All Cases

By contrast, two states—Nebraska and Montana—have effectively transformed bifurcated capital proceedings (conviction and sentencing) into trifurcated proceedings.¹⁰² Following the Court’s decision in Ring, these states split their sentencing procedures to allocate the eligibility determination to the jury and the penalty determination to judges.¹⁰³

1. Nebraska

When aggravating factors exist, murder may be punishable by death in Nebraska.¹⁰⁴ While a jury determines the presence of aggravating and mitigating factors, a panel of three judges determines the final sentence.¹⁰⁵ To impose a death sentence, the panel must reach a unanimous agreement.¹⁰⁶ Otherwise, the judges must fix the sentence at life imprisonment.¹⁰⁷ Nebraska is the only state that uses a three-judge panel to impose a death sentence.¹⁰⁸

In 2003, the Nebraska Supreme Court upheld this death-penalty sentencing scheme in State v. Gales.¹⁰⁹ Mr. Gales argued that permitting the three-judge panel to impose a death sentence violated his Sixth Amendment rights under Apprendi and Ring.¹¹⁰ The court distinguished Nebraska’s law from the statute considered in Ring by dividing the state’s sentencing scheme into two phases: (1) “death eligibility” and (2) “selection decision.”¹¹¹

In the “death eligibility” phase, the jury unanimously determines whether the applicable aggravating factors exist.¹¹² If not, the defendant automatically receives a life sentence.¹¹³ But if the jury finds at least one aggravating circumstance, the case proceeds to the “selection decision” phase.¹¹⁴ The panel weighs the aggravating and mitigating circumstances to determine whether a death sentence is appropriate.¹¹⁵ While the Nebraska Supreme Court agreed that Mr. Gales had a Sixth Amendment right to a jury finding in the “death eligibility” phase, it declined to extend this right to the “selection decision” phase.¹¹⁶

To date, Nebraska has a death row population of twelve individuals who were all sentenced to capital punishment not by their peers but by a panel of judges.¹¹⁷ While the Nebraska courts have yet to assess the statute post-Hurst,¹¹⁸ it would likely survive a constitutional challenge because Hurst requires juries to make the necessary eligibility findings but does not go so far as to prohibit judges from imposing a death sentence.¹¹⁹

2. Montana

Somewhat similarly, in a Montana murder trial, the jury must be the one to find an aggravating factor in order to trigger the possibility of a death sentence.¹²⁰ During the sentencing phase, the jury must find at least one aggravating circumstance beyond a reasonable doubt for the defendant to be eligible for death.¹²¹ Following that determination, the judge—not the jury—then considers mitigating evidence and weighs it against the aggravating circumstance(s).¹²² The trial judge, acting alone, may then sentence the defendant to death, life imprisonment, or any term of imprisonment authorized by the relevant statute.¹²³

Montana is the only state that permits the trial judge to unilaterally sentence a defendant to death.¹²⁴ While the state has not sentenced a defendant to death since 1996,¹²⁵ two individuals sentenced solely by a judge remain on death row as of this writing.¹²⁶ These defendants did not have the opportunity to challenge the state’s death-sentencing statute after the Court’s decisions in Ring and Hurst. As a result, Montana courts have not recently considered the constitutionality of death sentences imposed by judges alone.¹²⁷ Regardless, under the Court’s current precedent, Montana’s statute likely passes constitutional muster because it requires a jury to make the factual finding necessary to increase the possible punishment to death.¹²⁸

C. Two States Permit the Trial Judge to Impose a Death Sentence When the Jury Is Deadlocked

1. Indiana

In capital cases, Indiana law permits juries to recommend the death penalty, life imprisonment without parole, or neither.¹²⁹ But when a jury is unable to agree on a sentencing recommendation, an Indiana trial judge alone decides either to preserve life or to end one.¹³⁰ Indiana courts have not yet had the chance to substantively evaluate the statute’s constitutionality. When asked to consider the issue, the state’s highest court declined to do so because the defendant in question had not yet stood trial or been sentenced to death under Indiana’s statute.¹³¹

As of this writing, Indiana has a death row population of eight individuals.¹³² Even if these individuals received their sentences after Ring and Hurst, it is not clear whether the Court’s decisions afford them constitutional protections beyond those already codified in Indiana law.

2. Missouri

Missouri permits the imposition of the death penalty for first-degree murder with aggravating circumstances, treason, and placing a bomb near a bus terminal.¹³³ Under Missouri law, if a jury is “unable to decide or agree upon the punishment the court shall assess and declare the punishment at life imprisonment without eligibility for probation, parole, or release except by act of the governor or death.”¹³⁴

In a 2019 case, State v. Wood, the Supreme Court of Missouri considered the constitutionality of the state’s law permitting trial judges to independently evaluate the evidence and determine the sentence when the jury cannot do so unanimously—this time after Hurst.¹³⁵ Mr. Wood argued that, although he had been convicted of capital murder by a jury, his Sixth Amendment right to trial by jury was violated when the trial judge sentenced him to death.¹³⁶ In its 4–3 decision, the majority relied on a pre-Hurst Missouri case, which held that the Sixth Amendment does not prohibit a court from resolving jury deadlock by imposing the death penalty.¹³⁷ Thus, the court characterized the weighing of aggravating and mitigating circumstances—which the jury could not do unanimously—as a sentencing factor and not a fact requiring jury determination.¹³⁸

While Missouri applies the death penalty more conservatively today than it has in the past,¹³⁹ judges retain the ability to unilaterally sentence an individual to death even after a jury fails to agree that death is the appropriate punishment. In the past five years, only two death sentences have been imposed in Missouri.¹⁴⁰ Both of these sentences were decided by judges, not juries.¹⁴¹ Missouri’s current death row population is twenty-one individuals.¹⁴²

D. Alabama Permits a Nonunanimous Jury with at Least Ten Members Supporting Death

A defendant may be sentenced to death in Alabama if a jury finds them guilty of murder committed with aggravating circumstances.¹⁴³ The jury also determines the appropriate sentence.¹⁴⁴ Until relatively recently, Alabama judges were free to disregard the jury’s majority vote to sentence the defendant to a prison term and instead impose a death sentence.¹⁴⁵ At least three individuals who received a death sentence from an Alabama judge when the jury recommended a life sentence were later exonerated.¹⁴⁶

While Alabama eliminated judicial overrides in 2017,¹⁴⁷ the state remains an outlier when it comes to capital sentencing, albeit for a different reason. Most death penalty jurisdictions require the jury to reach a unanimous verdict to sentence a defendant to death. Alabama, however, permits nonunanimous verdicts during the sentencing phase.¹⁴⁸ Under state law, a person can be executed if the jury reaches a 10–2 decision in favor of his death.¹⁴⁹

Thus far, the United States Supreme Court has failed to strike down Alabama’s use of nonunanimous juries in capital sentencing. In 2016, the Court declined to hear the argument that Hurst, the Sixth Amendment, and the Eighth Amendment require a unanimous jury recommendation for a death sentence.¹⁵⁰ The Court also has not heard a post-Ramos Alabama case on the issue of a nonunanimous death sentence. While Ramos was pending, defendant Nathaniel Woods cited that case in a filing as a reason to stay his execution.¹⁵¹ This argument, however, did not make it to federal court in Mr. Woods’s appeal to the Eleventh Circuit,¹⁵² and Alabama executed Mr. Woods before the Court decided Ramos.¹⁵³

Alabama’s capital sentencing scheme has significant consequences: the state has one of the highest per capita capital sentencing rates in the country.¹⁵⁴ Further, out of the individuals sentenced to death and later exonerated, all five received death sentences from a judge override or a nonunanimous jury.¹⁵⁵ The state’s death row population at the time of this writing is 170.¹⁵⁶

E. Florida in Limbo

After Florida’s capital sentencing scheme was declared unconstitutional in Hurst, the state revisited its approach. The new statute incorporates federal and Florida state requirements that “all the critical findings necessary before the trial court may consider imposing a sentence of death must be found unanimously by the jury.”¹⁵⁷ This reform may seem like a step in the right direction, but the Florida Supreme Court soon retreated from its decision in Hurst v. State,¹⁵⁸ holding in State v. Poole that a jury need only reach a unanimous verdict as to “the existence of a statutory aggravating circumstance.”¹⁵⁹ The court explained that “[n]either Hurst v. Florida, nor the Sixth or Eighth Amendment, nor the Florida Constitution” requires the jury to make any other statutory finding or recommend a death sentence.¹⁶⁰ As of this writing, Florida’s statute states that juries cannot impose a death sentence without a unanimous sentencing verdict.¹⁶¹ The effects of Poole, though, remain to be seen.¹⁶² For example, Poole could be read to reauthorize judge sentencing in capital cases and perhaps even nonunanimous death sentences and judicial overrides. Significantly, if the court had reached the same conclusion in Hurst as it did in Poole, 147 individuals who have obtained relief under Hurst would likely still be on death row.¹⁶³

III. Expanding the Role of Capital Juries Under the Sixth Amendment

While the Supreme Court has recognized the importance of juries in criminal prosecutions in cases like Apprendi, Ramos, Ring, and Hurst, these cases fall short of fully protecting defendants’ Sixth Amendment rights.This Part argues that capital defendants have a right to be sentenced by a unanimous jury. Section III.A asserts that juries, not judges, must impose capital sentences, and Section III.B argues for unanimity in jury verdicts during capital sentencing phases. Section III.C then discusses solutions to common roadblocks and proposes a sample statute.

A. Juries, Not Judges

The Court’s Sixth Amendment doctrine fails to afford capital defendants the right to a jury at sentencing despite evidence that the Constitution requires as much. The Constitution twice provides the right to a jury trial but never explicitly states whether a “trial” encompasses sentencing.¹⁶⁴ Common law and practice at the Founding make clear that in capital cases the jury right does extend to sentencing. The Court should reject as unconstitutional the sentencing schemes of the five states which violate this jury right: Indiana, Missouri, Montana, Nebraska, and Florida.

As the Court’s doctrine currently stands, defendants have a constitutional right only to jury factfinding during sentencing.¹⁶⁵ This right requires juries to determine the existence of aggravating factors necessary to trigger the death penalty.¹⁶⁶ In this line of cases, at least two justices have suggested an expanded constitutional right: the right to jury sentencing.¹⁶⁷ Despite this suggestion, neither of the Court’s most recent Sixth Amendment capital sentencing cases explicitly establishes such a right.¹⁶⁸ These cases reveal that the Court either dangerously misunderstands the scope of the Sixth Amendment or—and perhaps more dangerously—is improperly limiting defendants’ constitutional rights. In fact, the right to jury sentencing in death penalty cases is rooted in common law and historical practices. To enforce the full scope of these constitutional protections, the Court must protect this right by expanding its Sixth Amendment doctrine to require jury sentencing in all capital cases.

1. Who Should We Trust with Our Lives?

“The Sixth Amendment jury trial right . . . does not turn on the relative rationality, fairness, or efficiency of potential factfinders.”¹⁶⁹ Juries, however, are in a better position to make sentencing decisions in capital cases. Some Supreme Court justices have already reached this conclusion in the past.¹⁷⁰ Justice Breyer, for one, has argued that “[b]ecause juries are better suited than judges to ‘express the conscience of the community on the ultimate question of life or death,’ the Constitution demands that jurors make, and take responsibility for, the ultimate decision to impose a death sentence.”¹⁷¹ The additional Sixth Amendment right to “an impartial jury of the State and district wherein the crime shall have been committed” highlights the importance of the factfinder reflecting the affected community.¹⁷²

Trusting a jury of peers to make a life-or-death decision, however, may be a big ask. For one, juries notoriously struggle to understand sentencing instructions, especially in capital cases.¹⁷³ But judge sentencing in death penalty cases actually exacerbates confusion.¹⁷⁴ Requiring jurors to make the final sentencing decision in capital cases increases both the jurors’ actual responsibility and their perception of such responsibility.¹⁷⁵ Reallocating responsibility for capital sentencing from the judge to the jury would better protect defendants’ constitutional rights.

Given the impact that actual and perceived responsibility has on juries in states where the judge makes final sentencing decisions, judicial sentencing appears to have the added benefit of consistency.¹⁷⁶ That consistency is concerning because judges regularly sentence more defendants to death than juries do.¹⁷⁷And judges do this without the procedural safeguard of requiring twelve individual jurors to all agree that the defendant’s life is not valuable enough to protect. Research has shown that states that require death sentencing by the judge alone “tend to have the highest rates in the region.”¹⁷⁸ Further, political pressure can affect elected judges’ rate of death sentences. Evidence suggests that judges facing reelection impose higher death sentence rates than other judges.¹⁷⁹ This high death sentencing rate among judges is at odds with the widely supported sentiment that capital punishment should be reserved for only the most extreme cases, if not abolished outright. Thus, when permitting the state to carry out an irreversible sentence, the Constitution requires that the Court be more concerned by overinclusive sentencing by judges than inconsistent or underinclusive sentencing by juries.

Exoneration data further supports limiting judicial discretion in capital sentencing. The Death Penalty Information Center found that in states that permitted nonunanimous capital sentences, one or more jurors had voted for life in more than 90 percent of death row exonerations.¹⁸⁰ These findings suggest that there may be strength in numbers: unilateral sentencing decisions from judges may be more likely to condemn an innocent person to death than those supported by twelve jurors.

Of course, juries are not immune to making arbitrary or irrational findings. To protect against such outcomes and promote consistency, states should follow California’s lead and allow the judge to determine “whether the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented” but not vice versa.¹⁸¹ Judges would thus have only the authority to nullify a death sentence. Therefore, permitting this type of judicial review does not have the same downfalls as hybrid sentencing schemes that give judges the power to impose the death penalty unilaterally.

2. Common Law, Originalism, and Historical Practice

The Supreme Court routinely uses English common law, historical practices, and original intent at the Founding to inform its interpretation of the Constitution. At common law, homicide, with only narrow exceptions, carried a mandatory death sentence.¹⁸² England actually developed jury trials in the thirteenth century to determine whether one of these exceptions applied to an alleged offender.¹⁸³ In homicide cases that did not fall under any exception, the jury also had to find the existence of mitigating factors that would justify a sentence lighter than death.¹⁸⁴ By the seventeenth century, though, the common law definition of capital homicide had changed.¹⁸⁵ Rather than relying only on a short list of exceptions to the mandatory death sentence, defendants could escape capital punishment if the killing lacked premeditation.¹⁸⁶ This distinction arose partially as a result of juries exercising this discretion, regardless of the law, when sentencing offenders to death.¹⁸⁷

With the option to convict an offender of manslaughter instead of capital murder, juries continued exercising discretion, but this time with explicit permission from the law. Jurors had to determine the offender’s state of mind at the time of the killing before the offender could be sentenced to death or an alternative sentence.¹⁸⁸ The decision turned on whether the jury found “malice aforethought” (i.e. premeditation), thereby distinguishing capital homicide (with malice) from noncapital manslaughter (without malice).¹⁸⁹ Functionally, “the murkiness of the required factual determinations inevitably vested the jury with considerable discretion.”¹⁹⁰ As a result, juries often reached a verdict of manslaughter when they determined that the circumstances of the particular case did not warrant a death sentence.¹⁹¹

Under this capital punishment scheme, there was no bifurcation between guilt and sentencing.¹⁹² Yet common law juries necessarily engaged in “de facto sentencing” when deciding whether the defendant was guilty as well as the degree of guilt.¹⁹³ In contrast, judges had little to no discretion in sentencing.¹⁹⁴ It was with this distribution of discretion between the judge and jury that the United States established its early criminal legal system.

The common law system heavily influenced the American jury system.¹⁹⁵ Even before the Sixth Amendment guaranteed “the right to . . . an impartial jury,”¹⁹⁶ Article III provided that “the Trial of all Crimes . . . shall be by Jury.”¹⁹⁷ As a result, early juries in the United States enjoyed the same level of discretion as English juries when it came to capital offenses. Even beyond homicide cases, juries engaged in what Blackstone called “pious perjury”: issuing “partial verdicts” or “downvaluing” stolen goods to avoid imposing the death penalty when it didn’t think it was appropriate.¹⁹⁸ Juries effectively suspended many capital statutes with these tactics.¹⁹⁹ According to Rachel Barkow, “the power of juries to exercise this kind of sentencing discretion by issuing unreviewable verdicts [of acquittal], even if contrary to the evidence, had become an accepted characteristic of jury trials by the time of the American Constitution.”²⁰⁰ These practices reveal that juries produced more than just “mere ‘factual findings.’”²⁰¹ The Founders, then, likely fully aware of the implications of giving the jury such discretion, chose to enshrine the role of the jury in the Constitution in not one, but two, places.

3. Post-Ratification Shift

As history demonstrates, mandatory capital sentences effectively gave juries the power to determine both guilt and punishment at the trial stage. This use of mandatory capital sentences for certain offenses continued even after the ratification of the Eighth Amendment.²⁰² As the United States grew, however, mandatory capital punishment for certain offenses diminished.²⁰³ Some states began to abolish the death penalty altogether.²⁰⁴ Other states that retained the death penalty enacted new sentencing schemes that gave the factfinder unconstrained discretion, after a finding of guilt, to determine whether to impose the death penalty.²⁰⁵ By 1972, discretionary sentencing became the dominant capital sentencing scheme in the country.²⁰⁶ These sentencing schemes began to implement the bifurcated procedure most death penalty states still use today.²⁰⁷ But this bifurcation only arose post-ratification and was “born from a movement away from capital punishment, not as a means to implement it.”²⁰⁸

The Court has repeatedly invoked judicial discretion in sentencing as an “age-old” norm, however, without acknowledging the historical practice of unitary proceedings.²⁰⁹ Similarly, the Court noted in Spaziano v. Florida, a now overturned case, that “[t]he Sixth Amendment never has been thought to guarantee a right to a jury determination of that issue.”²¹⁰ This assumption that “the Sixth Amendment right to [a] jury trial ‘[never has] been thought’ to encompass sentencing is to ignore the world of the founders, where a unitary proceeding adjudicated guilt and punishment with a single jury verdict.”²¹¹ Contrary to Spaziano’s conclusion, the question of “appropriate punishment” was not only at issue in those unified proceedings but was often the principal issue faced by the jury.²¹²

While Apprendi took a step in the right direction, the ruling fell short of fully acknowledging the jury’s historic role in capital cases. In Apprendi, the Court recognized that the jury in the eighteenth century had to find all of the relevant facts to justify a particular sanction.²¹³ But the Court failed to recognize the role of the jury beyond factfinding.²¹⁴ To justify its conclusion, the Court found that “nothing in this history suggests that it is impermissible for judges to exercise discretion . . . in imposing a judgment within the range prescribed by statute.”²¹⁵ While judges exercised this sort of discretion for misdemeanor offenses,²¹⁶ the unitary adjudication of guilt and punishment in capital cases suggests that judges should not have the latitude to unilaterally sentence a defendant to death.

The Court’s Sixth Amendment death penalty cases similarly ignore the original role of the jury in such proceedings. Carissa Byrne Hessick and William W. Berry have posited that, instead, the Court has focused “more on history and formalism than on the values underlying the Sixth Amendment jury trial right.”²¹⁷ And the Ring Court did just that. The line that Ring attempted to draw between factfinding to establish death eligibility and the ultimate sentencing decision was rooted in formalism and lacked historical support.²¹⁸ As a result, the final sentence selection decision fell outside of the Sixth Amendment’s protection.²¹⁹

Hessick and Berry also argue that Hurst was a spark of revival for the Court.²²⁰ In practice, though, the rule from Hurst seems to be less administrable than originally believed.²²¹ Hurst still pigeonholed the jury as a mere factfinder. Failing to recognize a jury right “for findings that are part of a judge’s unfettered sentencing discretion” assumes the constitutionality of judge sentencing in capital cases.²²² And this assumption fails to recognize the historic role juries played in imposing the death sentence.

Nonetheless, these cases emphasize the Court’s reliance on originalism and historical practice in developing its death penalty doctrine. But the Court’s hindsight is not 20/20: so far, it has only recognized the jury’s role after the post-ratification shift toward more judicial discretion in sentencing. However, “[w]e cannot assume, as the Court seems to have done, that separation of trial and sentencing is part of the natural order of things, or that the ‘trial rights’ of the Sixth Amendment were conceived with such a separation in mind.”²²³ Therefore, if it claims to apply an originalist understanding throughout these Sixth Amendment cases, the Court must acknowledge the role of the jury as the final decisionmaker in capital sentencing.

B. Unanimity

The right to an impartial jury would be incomplete without requiring that all twelve jurors agree in order to impose a death sentence. Ramos has already laid the foundation for this acknowledgment.²²⁴ Thus, this Section argues that a unanimity requirement at the sentencing phase in capital cases is not only constitutionally required but also a natural extension of the Court’s Sixth Amendment doctrine.

1. Ramos Requires Unanimity

No defendant should be executed at the hands of the state if even a single member of the jury believes that the individual’s life is worth preserving. In Ramos, the jury convicted Mr. Ramos of second-degree murder in a nonunanimous verdict, and the Court sentenced him to life without parole.²²⁵ As a result, Ramos only considered the Sixth Amendment issue at the guilt-innocence phase of a noncapital trial. But the entirety of a defendant’s constitutional rights does not vanish after this phase of a criminal trial in federal or state courts. Some trial rights have already been extended to the sentencing phase of criminal proceedings. Such rights include the right to effective assistance of counsel,²²⁶ Brady rights,²²⁷ the right against self-incrimination,²²⁸ and the right to a jury determination beyond a reasonable doubt of all facts that increase the possible sentence.²²⁹

The Constitution protects these rights in capital and noncapital cases alike. In Ring, the Court rejected the argument that defendants facing the death penalty should receive less constitutional protection than other criminal defendants.²³⁰ Indeed, the Court stated that the meaning of the Sixth Amendment would be “senselessly diminished” if the Court did not apply the Sixth Amendment to death penalty determinations.²³¹ Read together with Hurst, Ring suggests that the Sixth Amendment right to a unanimous jury verdict at the capital sentencing phase should apply in all jurisdictions.

Another case, Andres v. United States, furthers this point. The Andres Court affirmatively held that “[i]n criminal cases this requirement of unanimity extends to all issues—character or degree of the crime, guilt and punishment—which are left to the jury.”²³² Though the underlying case in Andres originated from a federal district court,²³³ the Ramos Court held that “if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.”²³⁴ Since Andres reads the Sixth Amendment to require a unanimous verdict to support a punishment decided by a jury, the Constitution should require no less in other jurisdictions.²³⁵

2. Dealing with Deadlock

Requiring unanimous verdicts at the guilt phase of criminal proceedings runs the risk of more hung juries. Applying the same right to the sentencing phase of capital trials does not necessarily pose the same risk. In most death penalty jurisdictions, if the jury is unable to reach a verdict during the sentencing phase, the court is required by law to impose a sentence of life without parole.²³⁶ A hung jury during the sentencing phase in these jurisdictions, then, does not have the same drawbacks as hung juries during the guilt phase of criminal proceedings.²³⁷

As Justice Gorsuch stated in Ramos, “who can say whether any particular hung jury is a waste, rather than an example of a jury doing exactly what the plurality said it should—deliberating carefully and safeguarding against overzealous prosecutions?”²³⁸ This sentiment is especially true in capital cases, as votes for life sentences are typically not the result of a jury stacked with anti-death penalty jurors: the Constitution permits prosecutors in death penalty cases to assemble “death-qualified juries” by striking any potential juror who firmly opposes the death penalty.²³⁹ In such cases, a juror holding out on a death sentence that deadlocks the jury is a feature, not a bug.

C. Reforming Current Capital Sentencing Schemes

Most capital sentencing schemes share a similar structure. Jurisdictions that already protect the Sixth Amendment rights discussed in this Note typically require four steps at the penalty phase in capital cases.²⁴⁰ First, the jury must find one of the aggravating factors enumerated in the relevant statute to be true beyond a reasonable doubt.²⁴¹ Second, “the jury considers evidence . . . to determine ‘whether any mitigating factors exist.’”²⁴² Third, the jury must assess whether the mitigating evidence outweighs the aggravating factor(s).²⁴³ Only if the jury finds beyond a reasonable doubt that the mitigating factor(s) do not outweigh the aggravating factor(s) does the jury proceed to the fourth step.²⁴⁴ In the fourth step, the jury must ultimately decide “whether death is the appropriate punishment.”²⁴⁵ This step gives the jury discretion to impose a sentence other than death even when the mitigating evidence is insufficient to outweigh the aggravating factor(s).

These third and fourth steps are where the Court has fallen short of protecting defendants’ Sixth Amendment rights. Since these steps do not require any factfinding but rather necessitate a weighing of circumstances, Hurst does not necessarily demand that a jury conduct them.²⁴⁶ This Note, however, argues that the Sixth Amendment requires the jury to weigh the evidence and eventually make the final sentencing determination because the decision of whether or not a defendant should live or die should be made by a jury of his peers and checked by the state, not made by the state. The following is a proposed statute that would recognize and protect these rights while maintaining the role of the state.

1. Sample Statute

(1) Where, upon a trial by jury, a person is convicted of an offense that may be punishable by death, the jury must return a unanimous verdict imposing the death penalty.

(a) Before imposing a sentence of death, the jury must: unanimously find beyond a reasonable doubt that at least one (1) statutory aggravating factor exists;

(b) Consider any mitigating evidence offered by the defendant;

(c) Unanimously determine beyond a reasonable doubt that the aggravating factor(s) outweigh the mitigating circumstances that are found to exist;

(d) And unanimously determine beyond a reasonable doubt that death is the appropriate punishment.

(2) The judge shall decide whether the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. If the jury is unable to unanimously agree on a determination, the court shall impose a sentence of life imprisonment.

(3) The judge shall, in no instance, impose the death penalty when the jury cannot agree unanimously to its sentence recommendation.

(4) In nonjury cases, the court shall follow the requirements of this section in determining the sentence to be imposed.

2. Death Is Different

Some have argued that extending the Sixth Amendment doctrine to protect capital defendants’ right to a jury sentence would be a slippery slope.²⁴⁷ This is not the case. Extending the Sixth Amendment doctrine to protect defendants’ right to jury sentencing in capital cases does not necessarily require jury sentencing in all criminal cases.²⁴⁸ First, original practice counsels in favor of extending the right solely in capital cases. As discussed in Section III.A.2, eighteenth-century common law and the early American jury system held capital trials that “were essentially sentencing hearings” but did not retain this same focus on sentencing issues in noncapital cases.²⁴⁹ Original practice, then, provides no reason to extend this right to all—capital and noncapital—criminal proceedings.

Second, to suggest, as the Court has, that capital sentencing “involves the same fundamental issue[s]” as noncapital sentencing is at odds with the Court’s complex death penalty case law.²⁵⁰ Since the overhaul of capital sentencing schemes in the 1970s,²⁵¹ case law has repeatedly demonstrated how capital sentencing is fundamentally different from noncapital sentencing.²⁵² The Court has held that the Constitution “requires States to apply special procedural safeguards when they seek the death penalty.”²⁵³ For these two reasons, expanding the Sixth Amendment doctrine as this Note proposes would not necessitate expanding the doctrine in all criminal proceedings.

3. Retroactivity

A Supreme Court decision finding that death sentences must be unanimously made by a jury need not undermine the validity of each and every past capital proceeding. Prior to May 2021, only newly recognized “watershed rules” of criminal procedure could apply in collateral review.²⁵⁴ This exception, though, was extremely narrow, and the Court failed to announce a single new rule of criminal procedure capable of meeting the demanding test set out in Teague.²⁵⁵ Given this void, the Court recently found that the “watershed” rule effectively does not exist.²⁵⁶ While considering whether Ramos applies retroactively, the Court in Edwards v. Vannoy eliminated the watershed exception altogether.²⁵⁷ As a result of this recent decision,²⁵⁸ a newly recognized right to unanimous jury sentencing in capital cases would not apply retroactively.

Regardless, expanding the Court’s Sixth Amendment doctrine will protect important constitutional rights. Collectively, the potentially affected states have a population of 561 individuals on death row.²⁵⁹ Additionally, a 2016 report by Harvard Law School’s Fair Punishment Project also found that 89 percent of Florida and Alabama’s death penalty sentences since 2010 were decided by nonunanimous juries.²⁶⁰ The Ramos Court considered the effect of finding the sentencing schemes of just two states unconstitutional. In a rare nod towards legal realism, the Supreme Court recognized that ruling in favor of the states “would invite other States to relax their own . . . requirements.”²⁶¹ Further, any single individual at risk of facing a judge-imposed death sentence “today, and elsewhere tomorrow, would dispute the . . . suggestion that their Sixth Amendment rights are of ‘little practical importance.’ ”²⁶² These rights, whatever their effect, must be enshrined in both case law and capital sentencing statutes.

Conclusion

The Sixth Amendment jury right was intended to protect defendants against the routine, machine-like gears of the criminal justice system. As early as the 1760s, supporters of the jury right recognized that these gears move not only at the behest of the prosecution but also at the hands of judges.²⁶³ These gears do not suddenly halt postconviction. Yet, the Court’s current Sixth Amendment doctrine provides less protection for defendants during the sentencing phase.

Recently, in cases like Ring and Hurst, the Court has begun to recognize that the established distinction between trial and sentencing is less clear in capital cases. And more state legislatures have taken steps beyond the Court’s permissive doctrine to limit judicial discretion and increase the jury’s role. But relying on states and incremental progress from the Court to sufficiently protect defendants’ interests during the capital sentencing phase has proved ineffective. To date, over 20 percent of individuals on death row were sentenced under statutes that permit judges or unanimous juries to impose a death sentence.²⁶⁴ Expanding the Sixth Amendment to require unanimous jury sentencing in capital cases will fulfill the original purpose of the jury right and would streamline the procedure by which states authorize capital punishment by requiring jurisdictions to adopt statutes similar to that proposed in this Note.²⁶⁵ Most importantly, though, acknowledging the original scope and full protection of the Sixth Amendment would serve as an incremental—nonetheless important—step toward abolishing the death penalty in its entirety.

* J.D., May 2022, University of Michigan Law School. Thank you to Professors David Moran and Matthew Bender for your thoughtful feedback and guidance. I am exceptionally grateful for the incredible Notes Editors of Volume 120, with a special thank you to Hannah Berl Hoffman. Finally, thank you to my wonderful parents, the friends that got me through law school, and Jack. I hope this piece serves the movement toward death penalty abolition in some way. No person is as bad as the worst thing they have ever done. All errors are my own.