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

• Author: Bijlani, Richa

Table of Contents Introduction I. The Sixth Amendment Jury Right A. The Trial Jury Right 1. Ramos v. Louisiana 2. Apprendi v. New Jersey B. Applying the Sixth Amendment to Capital Sentencing 1. Ring v. Arizona 2. Hurst v. Florida II. Current State Practices A. Twenty-Two Jurisdictions Require a Unanimous Jury to Impose a Death Sentence B. Two States Permit Judges to Make Final Capital Sentencing Decisions in All Cases 1. Nebraska 2. Montana C. Two States Permit the Trial Judge to Impose a Death Sentence When the Jury Is Deadlocked 1. Indiana 2. Missouri D. Alabama Permits a Nonunanimous Jury with at Least Ten Members Supporting Death E. Florida in Limbo III. Expanding the Role of Capital Juries Under the Sixth amendment A. Juries, Not Judges 1. Who Should We Trust with Our Lives? 2. Common Law, Originalism, and Historical Practice. 3. Post-Ratification Shift B. Unanimity 1. Ramos Requires Unanimity 2. Dealing with Deadlock C. Reforming Current Capital Sentencing Schemes 1. Sample Statute 2. Death Is Different 3. Retroactivity Conclusion 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)

1. 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.

   1. 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. (26) The 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." (39) The 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. (44) The 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...