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May 11, 2016

How many death sentences nationwide would get overturned if juror unanimity were constitutionally required for death sentences?

The question in the title of this post came to my mind after seeing this Los Angeles Times opinion piece headlined "Florida's death penalty should require unanimous jury votes." Here are excerpts from piece:

In a criminal jury trial, a conviction requires a unanimous verdict of guilt, whether the crime is a low-level drug possession charge or capital murder. But in Florida, after all 12 members of a jury have found the accused guilty, only 10 of them have to agree that the defendant should die for the crime. It’s absurd to require a lower level of agreement to send someone to death than is required to find the person guilty in the first place.

Florida Circuit Judge Milton Hirsch reached the same conclusion in a decision Monday that declared Florida’s latest death penalty law in violation of the state’s constitution. That decision followed arguments a few days earlier before the state’s Supreme Court over whether the U.S. Supreme Court decision in Hurst v. Florida, which found the state’s sentencing-decision process unconstitutional, meant that all 390 people on Florida’s death row should have their sentences converted to life. Yes, it does. If the sentencing process is unconstitutional, then the sentences are, too....

In the Hurst case, the Supreme Court affirmed that only a jury can make a finding of fact. Florida, in an effort to save its death penalty, rewrote its law to say the jury must decide whether the death penalty was appropriate. But the U.S. Supreme Court didn’t say how many jurors must make that call, and the revised state law raised the threshold to 10 of the 12 jurors.

Hirsch’s decision on Monday said that no, under the state’s constitution, a super-majority is not enough. His logic is a bit attenuated, but sound. Florida’s constitution guarantees trial by jury but doesn’t specify that a unanimous verdict must be reached. However, decades of practice, and common law, set unanimity as the standard threshold for a verdict. And since the revised law calls the jury’s finding for the death penalty a verdict, then it must be unanimous....

The least Florida can do is require unanimity by a jury before deciding to kill someone. And it should either grant fresh sentencing trials for those on death row or — and this is the preferred, more humane solution — commute the death sentences to life sentences.

Notably, two of the four states in the US with the largest death rows (Florida and Alabama) have sentenced a significant number of murderers to death without a unamimous jury recommendation to that effect. Though it is not clear that roughly all 600 persons on those states' death rows would be sure to get relief from a constitutional rule requiring jury unanimity for death recommendations, a suspect a significant number would. And even if only half of those condemned would get relief, that could cut the size of the US death row population down by more than 10 percent.

The Supreme Court's ruling in Hurst studiously avoided weighing in on this jury unaniminty issue, but I am not sure it is point to be able to avoid it for too much longer in light of what is going on in Florida and perhaps other places in the post-Hurst world.

A few prior related post:

May 11, 2016 at 12:49 PM | Permalink


The Supreme Court in recent years appears to look down on diversity of constitutional rules in the area of criminal justice and the Bill of Rights generally. Allowing outliers to continue their non-unanimous jury rules might be on their way out especially with people like Eugene Volokh out there pushing for such a move.

Will the grand jury requirement be the last remaining rule where the states and federal government are different? See also, the discussion of juries in McDonald v. Chicago, the "Powell" (and Stevens/Harlan) approach seen as atypical and perhaps questionable.

Posted by: Joe | May 11, 2016 1:03:29 PM

A small quibble with the opening premise of the op-ed: SCOTUS hasn't said that unanimous jury verdicts are required in state court. Though am I right in recalling that all but 2 states require it?

Posted by: Jen | May 11, 2016 1:19:35 PM

Have we so hit the bottom of the constitutional barrel that judges can actually find that a super minority of 1,2,3 or 4 should rule over the super majority of 11,10.9 and 8, respectively?

A super majority cannot be deemed unconstitutional.

By reason and law:

Guilt is a fact issue.

The sentence an opinion issue.

Posted by: Dudley Sharp | May 12, 2016 4:02:22 AM

I know three states that allow non-unanimous recommendations of death (those are the judicial override states) - Alabama, Florida, Delaware. At least one of those (Delaware) requires unanimous jury verdicts elsewhere. I don't know if there are other states where the jury decides the recommendation of death but allows non-unanimous recommendations.

Posted by: Erik M | May 12, 2016 8:39:15 AM

I thought Florida was one of the states that did not require a unanimous jury on guilt.

Posted by: tmm | May 13, 2016 3:05:01 PM

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