Rauf v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

BENJAMIN RAUF, §

§ No. 39, 2016

Defendant-Appellant, §

§ Certification of Question of Law

v. § from the Superior Court

§ of the State of Delaware

STATE OF DELAWARE, §

§ Cr. ID No. 1509009858

Plaintiff-Appellee. §

Submitted: June 15, 2016

Decided: August 2, 2016

Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and

SEITZ, Justices, constituting the Court en Banc.

Certification of questions of law from the Superior Court. Questions answered.

Santino Ceccotti, Esquire (Argued), Ross A. Flockerzie, Esquire, David C.

Skoranski, Esquire, Office of the Public Defender, Wilmington, Delaware for

Appellant.

Elizabeth R. McFarlan, Esquire, John R. Williams, Esquire, Sean P. Lugg, Esquire

(Argued), Delaware Department of Justice, Wilmington, Delaware for Appellee.

Elena C. Norman, Esquire, Kathaleen St. J. McCormick, Esquire, Nicholas J.

Rohrer, Esquire, Young Conaway Stargatt & Taylor LLP, Wilmington, Delaware;

Marc Bookman, Esquire, Atlantic Center for Capital Representation, Philadelphia,

Pennsylvania, Amicus Curiae for the Atlantic Center for Capital Representation.

Jeffrey S. Goddess, Esquire, Rosenthal, Monhait & Goddess, P.A., Wilmington,

Delaware; G. Ben Cohen, Esquire, The Promise of Justice Initiative, New Orleans,

Louisiana, Amicus Curiae for the Charles Hamilton Houston Institute for Race and

Justice.

Richard H. Morse, Esquire, American Civil Liberties Union Foundation of

Delaware, Wilmington, Delaware; Cassandra Stubbs, Esquire, Brian W. Stull,

Esquire, American Civil Liberties Union Capital Punishment Project, Durham,

North Carolina, Amicus Curiae for the American Civil Liberties Union Foundation

of Delaware and the American Civil Liberties Union Capital Punishment Project.

PER CURIAM of Chief Justice Strine, Justice Holland, and Justice Seitz:

The State has charged the Defendant, Benjamin Rauf with one count of First

Degree Intentional Murder, one count of First Degree Felony Murder, Possession

of a Firearm During those Felonies, and First Degree Robbery. The State has

expressed its intention to seek the death penalty if Rauf is convicted on either of

the First Degree Murder counts. On January 12, 2016, the United States Supreme

Court held in Hurst v. Florida that Florida‘s capital sentencing scheme was

unconstitutional because ―[t]he Sixth Amendment requires a jury, not a judge, to

find each fact necessary to impose a sentence of death.‖1 On January 25, 2016, the

Superior Court certified five questions of law to this Court for disposition in

accordance with Supreme Court Rule 41. On January 28, 2016, this Court

accepted revised versions of the questions certified by the Superior Court and

designated Rauf as the appellant and the State as the appellee.2

In this case, we are asked to address important questions regarding the

constitutionality of our state‘s death penalty statute. The Superior Court believed

that Hurst reflected an evolution of the law that raised serious questions about the

continuing validity of Delaware‘s death penalty statute. Specifically, Hurst

prompted the question of whether our death penalty statute sufficiently respects a

defendant‘s Sixth Amendment right to trial by jury.

1

136 S. Ct. 616, 619 (2016).

2

Rauf v. State, No. 39, 2016 (Del. Jan. 28, 2016) (ORDER).

1

Because answering the certified questions requires us to interpret not simply

the Sixth Amendment itself, but the complex body of case law interpreting it, we

have a diversity of views on exactly why the answers to the questions are what we

have found them to be. But that diversity of views is outweighed by the majority‘s

collective view that Delaware‘s current death penalty statute violates the Sixth

Amendment role of the jury as set forth in Hurst. We also have a shared belief that

the importance of the subject to our state and our fellow citizens, reflected in the

excellent briefs and arguments of the parties, makes it useful for all the Justices to

bring our various perspectives to bear on these difficult questions.

For the sake of clarity, we set forth the five questions asked and the succinct

answers to them.

Question One

Under the Sixth Amendment to the United States Constitution, may a

sentencing judge in a capital jury proceeding, independent of the jury, find the

existence of ―any aggravating circumstance,‖ statutory or non-statutory, that has

been alleged by the State for weighing in the selection phase of a capital

sentencing proceeding?

2

No. Because Delaware‘s capital sentencing scheme allows the judge to do

this,3 it is unconstitutional.

Question Two

If the finding of the existence of ―any aggravating circumstance,‖ statutory

or non-statutory, that has been alleged by the State for weighing in the selection

phase of a capital sentencing proceeding must be made by a jury, must the jury

make the finding unanimously and beyond a reasonable doubt to comport with

federal constitutional standards?

Yes. The jury must make the finding unanimously and beyond a reasonable

doubt. Because the Delaware death penalty statute does not require juror

unanimity,4 it is unconstitutional.

3

See 11 Del. C. § 4209(d)(1) (―If a jury has been impaneled and if the existence of at least 1

statutory aggravating circumstance as enumerated in subsection (e) of this section has been

found beyond a reasonable doubt by the jury, the Court, after considering the findings and

recommendation of the jury and without hearing or reviewing any additional evidence, shall

impose a sentence of death if the Court finds by a preponderance of the evidence . . . that the

aggravating circumstances found by the Court to exist outweigh the mitigating circumstances

found by the Court to exist. The jury‘s recommendation concerning whether the aggravating

circumstances found to exist outweigh the mitigating circumstances found to exist shall be given

such consideration as deemed appropriate by the Court in light of the particular circumstances or

details of the commission of the offense and the character and propensities of the offender as

found to exist by the Court. The jury‘s recommendation shall not be binding upon the Court.‖).

4

See § 4209(c)(3)(b)(2) (―The jury shall report to the Court by the number of the affirmative and

negative votes its recommendation on the question as to whether, by a preponderance of the

evidence, after weighing all relevant evidence in aggravation or mitigation which bear upon the

particular circumstances or details of the commission of the offense and the character and

propensities of the offender, the aggravating circumstances found to exist outweigh the

mitigating circumstances found to exist.‖).

3

Question Three

Does the Sixth Amendment to the United States Constitution require a jury,

not a sentencing judge, to find that the aggravating circumstances found to exist

outweigh the mitigating circumstances found to exist because, under 11 Del. C.

§ 4209, this is the critical finding upon which the sentencing judge ―shall impose a

sentence of death‖?

Yes. Because Delaware‘s death penalty statute does not require the jury to

perform this function,5 it is unconstitutional.

Question Four

If the finding that the aggravating circumstances found to exist outweigh the

mitigating circumstances found to exist must be made by a jury, must the jury

make that finding unanimously and beyond a reasonable doubt to comport with

federal constitutional standards?

Yes. We answer question four in the identical manner in which we have

answered question two.

Question Five

If any procedure in 11 Del. C. § 4209‘s capital sentencing scheme does not

comport with federal constitutional standards, can the provision for such be

5

See supra note 3.

4

severed from the remainder of 11 Del. C. § 4209, and the Court proceed with

instructions to the jury that comport with federal constitutional standards?

No. Because the respective roles of the judge and jury are so complicated

under § 4209, we are unable to discern a method by which to parse the statute so as

to preserve it. Because we see no way to sever § 4209, the decision whether to

reinstate the death penalty—if our ruling ultimately becomes final—and under

what procedures, should be left to the General Assembly.

Summary

This Court‘s prior cases on the constitutionality of Delaware‘s capital

sentencing scheme are hereby overruled to the extent they are inconsistent with the

answers in this opinion. Having answered the certified questions, the Clerk is

directed to transmit the opinions in this matter to the Superior Court.

5

STRINE, Chief Justice, concurring in the Majority per curiam, with whom Justice

HOLLAND and Justice SEITZ join:

I.

I join with a majority of my colleagues in concluding that Delaware‘s

current death penalty statute conflicts with the Sixth Amendment of the United

States Constitution. The importance and complexity of the subject before us is

illustrated by the somewhat different ways that each of us approach how the

questions put to us should be answered and why they should be answered ―yes,‖

―no,‖ or not answered in part. I agree with the succinct answers given to the five

certified questions before us in the Majority‘s per curiam opinion, in which I

happily and fully join. The questions posed involve the application of a

fundamental constitutional right that is easy to state—the right to a trial by a jury—

but that has been the subject of complex judicial explication during the past

forty-four years since Furman v. Georgia1 made the administration of the death

penalty a constant subject of federal constitutional rulings. Given these decisions

and the compelling importance of the subjects we now must address, I therefore

burden the interested reader with an explanation of how I reached the answers I

did. The core of my reasoning, however, is as follows.

Distilled to their essence, the most critical of questions before us ask

whether the Sixth Amendment requires a jury, rather than a judge, to make all of

1

408 U.S. 238 (1972).

1

the factual findings in capital sentencing—including balancing those factors for

itself in assessing whether death is the appropriate punishment—and, if so, whether

the jury must make such findings unanimously and beyond a reasonable doubt.

Although I acknowledge that the meaning of Hurst v. Florida2 is contestable, it

states that ―[t]he Sixth Amendment requires a jury, not a judge, to find each fact

necessary to impose a sentence of death.‖3 A combination of settled U.S. Supreme

Court cases makes it impossible for a state to enact a statute under which a

defendant must receive the death penalty if he is convicted. Rather, even if a jury

unanimously finds that a defendant is guilty of a crime that is punishable by

death—by for example, finding that a defendant has committed a particular type of

murder for which the legislature has said death is a possible penalty—additional

findings must be made. To sentence a defendant to death, the sentencing authority

must consider all relevant factors bearing on whether the defendant should live or

die, weigh those factors rationally against each other, and make an ultimate

determination of whether the defendant should die or receive a comparatively more

merciful sentence, typically life in prison. The option for the sentencing authority

to give a prison sentence, rather than a death sentence, must always exist. After

consideration of these factors and a determination that the balance of the relevant

2

136 S. Ct. 616 (2016).

3

Id. at 619.

2

factors weighs in favor of a death sentence, the defendant cannot receive a death

sentence.

For these reasons, if the core reasoning of Hurst is that a jury, rather than a

judge must make all the factual findings ―necessary‖ for a defendant to receive a

death sentence,4 then Delaware‘s statute cannot stand. Because our General

Assembly has acted with alacrity to address the mandates of the U.S. Supreme

Court, our statute necessarily mandates a fact-intensive inquiry at the ultimate

stage of sentencing, in which the factors that aggravate toward a death sentence

and mitigate against it are considered and weighed. This application of the

sentencing authority‘s judgment, conscience, and experience to the facts of record

is what drives the ultimate decision whether the defendant should live or die.

Without that exercise, no defendant can receive a death sentence consistent with

the principles established by U.S. Supreme Court cases pre-dating Hurst.

I recognize that this reading of Hurst is contestable, and that Hurst can be

read as simply reiterating that any factual finding that makes a defendant eligible to

receive the death penalty must be made by the jury. Under that approach, once a

jury has done all that is statutorily required to make death a permissible

punishment, the jury‘s constitutionally required role goes away entirely and the use

of a jury at all is optional. Past case law, whose reasoning is in sharp tension with

4

Id. at 624.

3

the central reasoning of Hurst and its predecessors such as Apprendi v. New

Jersey,5 embraces this narrow approach.

For myself, however, I find it impossible to embrace a reading of Hurst that

judicially draws a limit to the right to a jury in the death penalty context to having

the jury make only the determinations necessary to make the defendant eligible to

be sentenced to death by someone else, rather than to make the determinations

itself that must be made if the defendant is in fact to receive a death sentence. I am

unable to discern in the Sixth Amendment any dividing line between the decision

that someone is eligible for death and the decision that he should in fact die. The

post-Furman jurisprudence has created a regime governing death penalty cases that

is intricate in design and often in tension with itself. Candor requires an

acknowledgment that that jurisprudence, although no doubt well-intended, has

helped impel a reduction in the historical role of American juries in the death

sentencing process in a small number of states, including our own.

At the beginning of our Republic and throughout most of its history,

defendants did not go to the gallows unless juries said they should. And the role of

the jury was seen as especially important when a defendant‘s life was in the

balance, because it made sure that a defendant would suffer the ultimate

punishment only if twelve members of the community deliberated together and

5

530 U.S. 466 (2000).

4

unanimously concluded that should be so. To me, Hurst and its predecessors

surface a reality that had been somewhat obscured in the development of the law in

the decades since Furman, which is that the Sixth Amendment right to a jury is

most important and fundamental when the issue is whether a defendant should live

or die. As the U.S. Supreme Court has long recognized, death is different. The

proposition that any defendant should go to his death without a jury of his peers

deciding that should happen would have been alien to the Founders, and starkly out

of keeping with predominant American practices as of the time of Furman itself.

The cost of useful precedent mandating that each defendant who commits a capital

offense must also be accorded a rational sentencing proceeding that must include a

careful consideration of those factors weighing in favor of mercy does not have to

include depriving the defendant of the fundamental protection of a jury having to

make the final judgment about his fate. If the right to a jury means anything, it

means the right to have a jury drawn from the community and acting as a proxy for

its diverse views and mores, rather than one judge, make the awful decision

whether the defendant should live or die.

I therefore give Hurst its plain meaning and concur in the per curiam

opinion‘s answers to the questions before us. Under our statute that faithfully

respects the requirement to consider all relevant sentencing factors and allow a

death penalty only after those factors are weighed and the option for mercy is

5

considered, findings beyond the eligibility stage are necessary if a defendant is to

receive a death sentence. Thus, our statute cannot stand. And to put my opinion in

more basic terms, I embrace the notion that the Sixth Amendment right to a jury

extends to all phases of a death penalty case, and specifically to the ultimate

sentencing determination of whether a defendant should live or die. Although

states may give judges a role in tempering the harshness of a jury or in ensuring

proportionality, they may not execute a defendant unless a jury has unanimously

recommended that the defendant should suffer that fate.

I also note that this same result can be reached by a more oblique and

alternative route, which is holding that the practice of executing a defendant

without the prior unanimous vote of a jury is so out of keeping with our history as

to render the resulting punishment cruel and unusual. The jury‘s historical role as

an important safeguard against overreaching in this most critical of contexts was

recognized at the founding, and prevails in most states today, making our own state

one of the few outliers. Hurst recognizes the centrality of the jury‘s historic role,

and my opinion gives effect to that recognition.

Consistent with this reasoning, I also conclude that the Delaware death

penalty statute is inconsistent with the Sixth Amendment to the extent that it does

not require a unanimous jury to make the key discretionary findings necessary to

impose a death sentence by employing a beyond a reasonable doubt standard.

6

From the inception of our Republic, the unanimity requirement and the beyond a

reasonable doubt standard have been integral to the jury‘s role in ensuring that no

defendant should suffer death unless a cross section of the community

unanimously determines that should be the case, under a standard that requires

them to have a high degree of confidence that execution is the just result.

II.

To explain how I address the certified questions and the U.S. Supreme Court

cases that occasion the certified questions before us, it is critical to understand, at

least in rough outline, how we as a nation and state got to where we are in the

administration of the death penalty, and how different things look from when our

nation was founded. By necessity, my recitation of this process is truncated,

involves some simplification of a very complicated subject, and is compromised by

the reality that I am a judge, and do not claim to be a historian. That said, I am

aided by the many scholars and lay commentators who have lucidly outlined the

basic directional facts.6

6

See, e.g., John G. Douglass, Confronting Death: Sixth Amendment Rights at Capital

Sentencing, 105 COLUM. L. REV. 1967 (2005); Nancy Gertner, A Short History of American

Sentencing: Too Little Law, Too Much Law, or Just Right, 100 J. CRIM. L. & CRIMINOLOGY 691

(2010); Morris B. Hoffman, The Case for Jury Sentencing, 52 DUKE L.J. 951 (2003); Erik

Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About Apprendi, 82 N.C. L. REV.

621 (2004).

7

At the beginning of our Republic, prisons of the kind we now have, where

many defendants spend lengthy periods of their lives, were unknown.7 Instead,

nearly all felonies carried mandatory death sentences,8 as was traditional in

England—the primary example upon which our criminal justice system was built. 9

Because of greater American antipathy toward the death penalty, however,

American criminal statutes had already begun to narrow the long list of crimes for

which death was the mandatory sentence.10 For example, in the 1790s,

Pennsylvania became the first state ―to alleviate the undue severity of the law by

confining the mandatory death penalty to ‗murder of the first degree,‘‖ 11 a trend

that would gain momentum.12

7

See United States v. Grayson, 438 U.S. 41, 45 (1978), superseded by statute, Sentencing

Reform Act of 1984, 18 U.S.C. § 3551 et seq., 28 U.S.C. §§ 991–998, as recognized in Barber v.

Thomas, 560 U.S. 474 (2010); Lillquist, supra note 6, at 641–43.

8

See Woodson v. North Carolina, 428 U.S. 280, 289 (1976); EVAN J. MANDERY, CAPITAL

PUNISHMENT IN AMERICA: A BALANCED EXAMINATION xxi (2d ed. 2012).

9

See Douglass, supra note 6, at 1977–78.

10

See Woodson, 428 U.S. at 289; John W. Poulos, The Supreme Court, Capital Punishment and

the Substantive Criminal Law: The Rise and Fall of Mandatory Capital Punishment, 28 ARIZ. L.

REV. 143, 200 (1986).

11

Woodson, 428 U.S. at 290; see also HUGO ADAM BEDAU, THE DEATH PENALTY IN AMERICA:

CURRENT CONTROVERSIES 4 (1997).

12

See BEDAU, supra note 11, at 4–5 (―In rapid order most states followed Pennsylvania‘s lead, so

that today every American jurisdiction that authorizes the death penalty for murder does so by

limiting it to those convicted of murder in the first degree . . . .‖); see also RAYMOND TAYLOR

BYE, CAPITAL PUNISHMENT IN THE UNITED STATES 5–6 (1919); 6 WAYNE R. LAFAVE, ET AL.,

CRIMINAL PROCEDURE § 26.1(b), at 670–71 (3d ed. 2007).

8

From the beginning of our nation‘s history, the jury‘s role as the sentencer in

capital cases ―was unquestioned.‖13 This was true in Delaware, where juries made

the life or death decision at the beginning of our history. 14 And, without any

exception I have been able to identify, no defendant was put to death in the early

stages of our nation‘s history without a jury making all the necessary

determinations required.15 Of course, it is a bit of a misnomer to say that juries

―sentenced‖ defendants to death. Capital trials were not bifurcated, and ―[t]he

question of guilt and the question of death both were decided in a single jury

verdict at the end of a single proceeding conducted as an adversarial trial.‖ 16 But,

it would be even more inaccurate to say that the jury did not have an important role

in exercising its discretion and conscience in a manner that determined whether the

defendant should live or die.

The starkest way in which juries did this was by acquitting a defendant who

was obviously guilty.17 By this crude action of nullification, a jury could exercise

13

Walton v. Arizona, 497 U.S. 639, 710–11 (1990) (Stevens, J., dissenting) (quoting Welsh S.

White, Fact-Finding and the Death Penalty: The Scope of a Defendant’s Right to Jury Trial, 65

NOTRE DAME L. REV. 1, 10–11 (1989)) (internal quotation marks omitted); see also Ronald F.

Wright, Rules for Sentencing Revolutions, 108 YALE L.J. 1355, 1373 (1999).

14

See, e.g., State v. Baynard, 1 Del. Cas. 662 (O. & T. 1794); State v. Donovan, 1 Del. Cas. 168

(O. & T. 1798); see also State v. Jeandell, 5 Del. 475, 483 (Gen. Sess. 1854).

15

See Lillquist, supra note 6, at 628–29; Nancy J. King, The Origins of Felony Jury Sentencing

in the United States, 78 CHI.-KENT L. REV. 937 (2003).

16

Douglass, supra note 6, at 1972.

17

See Woodson, 428 U.S. at 293; see also Roberts v. Louisiana, 428 U.S. 325, 360 (1976)

(White, J., dissenting); Furman v. Georgia, 408 U.S. 238, 298 (1972) (Brennan, J., concurring);

JEFFREY B. ABRAMSON, WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY 217

(1994); VALERIE P. HANS & NEIL VIDMAR, JUDGING THE JURY 149–58 (1986); Jenia Iontcheva,

9

its conscience by refusing to convict a guilty defendant precisely because the jury

thought that death was too harsh a punishment for the crime. Rather than this

practice of nullification leading to hostility to juries by our founding generation, it

was seen as an example of the bedrock importance of the jury in securing the

liberties of our citizens.18 John Adams, for example, wrote: ―It is not only [the

juror‘s] right, but his duty . . . to find the verdict according to his own best

understanding, judgment, and conscience, though in direct opposition to the

direction of the court.‖19

The practice of nullification also exposed an important community

viewpoint that statute writers began to recognize, which is that crimes could be

serious but yet not be considered so injurious to society as to always warrant a

death sentence. Therefore, as Pennsylvania had done, states increasingly narrowed

the felonies for which death was a mandatory sentence.20 Degrees of murder were

in large measure introduced to allow juries to convict a defendant of a degree of

homicide while not exposing the defendant to death. And over time, jury

Jury Sentencing as Democratic Practice, 89 VA. L. REV. 311, 321–22 (2003); see also Rachel E.

Barkow, Recharging the Jury: The Criminal Jury’s Constitutional Role in an Era of Mandatory

Sentencing, 152 U. PA. L. REV. 33, 79 (2003); Thomas A. Green, The Jury and the English Law

of Homicide 1200–1600, 74 MICH. L. REV. 413, 430–31 (1976).

18

See CLAY S. CONRAD, JURY NULLIFICATION: THE EVOLUTION OF A DOCTRINE 47–48 (2014);

White, supra note 13, at 30–31 (―[I]t became accepted that in homicide cases the jury would

exercise its nullification power when it believed that the defendants—although they might be

technically guilty of the capital offense—did not deserve to die. Thus, in this context, the jury‘s

fact-finding power has historically been used to temper the application of capital punishment so

that it will mirror the community‘s perception as to when that punishment is appropriate.‖).

19

C.F. ADAMS, THE WORKS OF JOHN ADAMS 255 (1865).

20

See supra note 12 and accompanying text.

10

discretion over sentencing was more candidly introduced, as several states moved

to statutory regimes under which even a defendant convicted of the most serious of

crimes—such as intentional murder—could nonetheless be given a sentence other

than death. In the 1830s and 40s, the first states abandoned mandatory death

sentences even in first degree murder cases and granted juries discretion in capital

sentencing.21 Our own General Assembly divided murder into two degrees in

1852, with first degree murder carrying a mandatory death sentence and second

degree murder carrying various harsh, non-capital sentences.22 This gave the jury

an option to convict, but to exempt the defendant from death if its sense of mercy

moved in that direction.23

About half of the states adopted discretionary statutes by 1900, and even

more states followed soon after.24 In 1899, the U.S. Supreme Court itself

well-summarized some of the key developments:

The hardship of punishing with death every crime coming within the

definition of murder at common law, and the reluctance of jurors to

concur in a capital conviction, have induced American legislatures, in

modern times, to allow some cases of murder to be punished by

imprisonment, instead of by death. That end has been generally

attained in one of two ways: First. In some states and territories,

statutes have been passed establishing degrees of the crime of murder,

requiring the degree of murder to be found by the jury, and providing

that the courts shall pass sentence of death in those cases only in

21

See Woodson, 428 U.S. at 291.

22

See Del. C. ch. 127 §§ 1, 2 (1852).

23

See State v. Reidell, 14 A. 550, 550 (Del. 1888).

24

See Woodson, 428 U.S. at 291; BEDAU, supra note 11, at 5–6; BYE, supra note 12, at 7–8.

11

which the jury return a verdict of guilty of murder in the first degree,

and sentence of imprisonment when the verdict is guilty of murder in

the lesser degree. . . . Second. The difficulty of laying down exact

and satisfactory definitions of degrees in the crime of murder,

applicable to all possible circumstances, has led other legislatures to

prefer the more simple and flexible rule of conferring upon the jury, in

every case of murder, the right of deciding whether it shall be

punished by death or by imprisonment.25

Some exceptions to the jury tradition emerged, albeit in an unsavory context

that actually underscores the importance of the right to a jury. A few states,

unhappy with the rights accorded to black citizens by the Fourteenth and Fifteenth

Amendments, cut back on unanimity requirements for juries, in order to mute the

voice of newly eligible black jurors.26 But even with these exceptions, the overall

picture was remarkably consistent: Defendants received death sentences only

25

Winston v. United States, 172 U.S. 303, 310–12 (1899).

26

E.g., Robert J. Smith & Bidish J. Sarma, How and Why Race Continues to Influence the

Administration of Criminal Justice in Louisiana, 72 LA. L. REV. 361, 375–78 (2012).

Regrettably, Delaware was among the many states that embarked on a century-long

campaign of resistance to the rights granted to black people by the Fourteenth and Fifteenth

Amendments, including those related to juries. In justifying the total absence of any black

citizens in grand and petit jury pools as ―nowise remarkable,‖ Delaware‘s then-Chief Justice said

that ―the great body of black men residing in this State are utterly unqualified by want of

intelligence, experience or moral integrity to sit on juries.‖ Neal v. Delaware, 103 U.S. 370, 402

(1880) (Waite, C.J., dissenting) (quoting the Delaware Supreme Court‘s opinion) (internal

quotation marks omitted). A divided U.S. Supreme Court held that this exclusion violated the

Fourteenth Amendment, but dissenters embraced the rationale that categorical exclusion of black

people from jury pools on the basis of their presumed unfitness to serve was constitutional. See

id. at 397–98 (Harlan, J.) (finding that Delaware‘s practice of restricting juries to ―free white

male citizens, of the age of twenty-two years and upwards‖ was in violation of the Fourteenth

Amendment); id. at 407–08 (Waite, C.J., dissenting) (―No one can truly affirm that women, the

aged, and the resident foreigner, whether Caucasian or Mongolian, though excluded from acting

as jurors, are not as equally protected by the laws of the State as those who are allowed or

required to serve in that capacity. To afford equality of protection to all persons by its laws does

not require the State to permit all persons to participate equally in the administration of those

laws, or to hold its offices, or to discharge the trusts of government.‖).

12

when the jury determined they should. And that jury determination had to be

unanimous.27

One byproduct of the jury‘s more explicit role in exercising sentencing

discretion over whether a defendant should live or die was the emergence of a

greater judicial role in sentencing defendants convicted by juries of committing a

crime for which death was not a possible sentence. Early in our history, those few

crimes that did not carry the death penalty had relatively short, if any, prison

sentences attached to them.28 As mentioned, the term ―prison‖ was itself not the

right word, as we did not have an institutionalized system for incarcerating

defendants.29 In England and then in the early stages of our Republic, there was a

tradition of sentencing by judges in non-capital, misdemeanor cases.30 As society

determined through law that not all serious crimes should subject defendants to

death and that there needed to be other serious sentencing options to fulfill

objectives such as retribution and even loftier goals such as rehabilitation,

27

See Andres v. United States, 333 U.S. 740, 748 (1948) (―In 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.‖); id. at 763 (Frankfurter, J., concurring) (―The fair significance to be drawn

from State legislation and the practical construction given to it is that it places into the jury‘s

hands the determination whether the sentence is to be death or life imprisonment, and, since that

is the jury‘s responsibility, it is for them to decide whether death should or should not be the

consequence of their finding that the accused is guilty of murder in the first degree. Since the

determination of the sentence is thus, in effect, a part of their verdict, there must be accord by the

entire jury in reaching the full content of the verdict.‖).

28

See JOEL SAMAHA, CRIMINAL PROCEDURE 475 (2011); Corinna Barrett Lain, Furman

Fundamentals, 82 WASH. L. REV. 1, 23 (2007).

29

See supra note 7 and accompanying text.

30

See Wright, supra note 13, at 1374–75; King, supra note 15, at 985–86.

13

institutions such as so-called ―penitentiaries‖ where defendants could do penance

for their misdeeds emerged.31 Consistent with the tradition that judges had often

decided on the appropriate punishment when life or death was not the binary

choice, judicial sentencing for non-capital offenses became more prevalent.32 And,

when the question was not the stark one of life or death, but the more nuanced one

of what number of years a defendant should spend in prison, judicial expertise was

perhaps seen as valuable.

Before fast-forwarding to the status of these trends in practice as of when

Furman was decided in 1972, another important factor must be considered. This

evolution of practices emerged without intrusion by the federal Judiciary or the

federal Constitution. One cannot find U.S. Supreme Court cases addressing the

constitutionality of the various state approaches to these issues. That is because it

was not until 1932 that the U.S. Supreme Court first began to apply the provisions

in the Bill of Rights protecting criminal defendants to the states.33 And the wave of

cases holding that the Fourteenth Amendment incorporated the procedural

protections of criminal defendants and that the states had to abide by those

31

See United States v. Moreland, 258 U.S. 433, 448 (1922); see also ARTHUR W. CAMPBELL,

LAW OF SENTENCING § 1.2, at 6–9 (3d ed. 2004); Douglass, supra note 6, at 2018.

32

See Hoffman, supra note 6, at 965; Lillquist, supra note 6, at 628–29.

33

See Powell v. Alabama, 287 U.S. 45, 71 (1932).

14

protections to the same extent as the federal government rose in the era after World

War II and crested in the 1960s.34

Coincident with this wave was a general trend toward making the death

penalty rarer in application. Some states went so far as to abolish the death

penalty.35 Delaware even did that for a brief period, from 1958 to 1961.36

34

See, e.g., In re Oliver, 333 U.S. 257, 271–73 (1948) (incorporating the Sixth Amendment right

to a public trial and to notice of accusations); Wolf v. Colorado, 338 U.S. 25, 27–28, 33 (1949)

(―[T]he security of one‘s privacy against arbitrary intrusion by the police—which is at the core

of the Fourth Amendment—is basic to a free society [and i]t is therefore implicit in ‗the concept

of ordered liberty‘ and as such enforceable against the States through the Due Process Clause.‖),

overruled in part by Mapp v. Ohio, 367 U.S. 643 (1961); Mapp, 367 U.S. at 655–56 (further

incorporating the Fourth Amendment exclusionary rule by holding that ―all evidence obtained by

searches and seizures in violation of the Constitution is . . . inadmissible in a state court‖);

Robinson v. California, 370 U.S. 660, 667 (1962) (incorporating the Eighth Amendment

protection against cruel and unusual punishment); Gideon v. Wainwright, 372 U.S. 335, 342

(1963) (incorporating the Sixth Amendment guarantee of counsel for indigent defendants in

felony cases); Ker v. California, 374 U.S. 23, 34 (1963) (confirming that the Fourth Amendment

protection against unreasonable searches and seizures apply to the states); Malloy v. Hogan, 378

U.S. 1, 10–11 (1964) (incorporating the Fifth Amendment protection against compelled

self-incrimination); Aguilar v. Texas, 378 U.S. 108, 110 (1964) (―[T]he standard for obtaining a

search warrant is [] ‗the same under the Fourth and Fourteenth Amendments.‘‖ (quoting Ker, 374

U.S. at 33)), abrogated by Illinois v. Gates, 462 U.S. 213 (1983); Pointer v. Texas, 380 U.S. 400,

403 (1965) (incorporating the Sixth Amendment right of an accused to confront prosecution

witnesses); Parker v. Gladden, 385 U.S. 363, 364 (1966) (incorporating the Sixth Amendment

right to trial by an impartial jury); Klopfer v. North Carolina, 386 U.S. 213, 222–23 (1967)

(incorporating the Sixth Amendment right to a speedy trial); Washington v. Texas, 388 U.S. 14,

19–20 (1967) (incorporating the Sixth Amendment right to have compulsory process for

obtaining defense witnesses); Duncan v. Louisiana, 391 U.S. 145, 149, 158 (1968)

(incorporating the Sixth Amendment right to a trial by jury in all criminal cases, except for

―petty‖ offenses); Benton v. Maryland, 395 U.S. 784, 796 (1969) (incorporating the Fifth

Amendment protection against double jeopardy); see also Jerold H. Israel, Selective

Incorporation: Revisited, 71 GEO. L.J. 253, 296 (1982) (―The decisions of the 1960‘s had

selectively incorporated all but four of the Bill of Rights guarantees relating to the criminal

justice process: public trial, notice of charges, prohibition of excessive bail, and prosecution by

indictment.‖).

35

See Woodson, 428 U.S. at 291.

36

See State v. Dickerson, 298 A.2d 761, 764 n.6 (Del. 1972); Hugo Adam Bedau, The Death

Penalty in America, 35 FED. PROBATION 32, 32 (1971); Valerie P. Hans et al., The Death

Penalty: Should the Judge or the Jury Decide Who Dies, 12 J. EMPIRICAL L. STUD. 70, 73

15

Although Delaware then reenacted the death penalty, it did so only for first degree

murder. And the Delaware statute made a death sentence for first degree murder

mandatory but with a safety valve involving the jury. The jury could not only use

the traditional means of convicting of a lesser degree of murder as a way of

avoiding the imposition of a death sentence, but could convict of first degree

murder and recommend mercy and a non-capital sentence to the judge37—a choice

juries did not have in the early years of Delaware‘s death penalty.38 This mercy

safety valve was first instituted in Delaware for murder cases in 1917.39 In giving

juries discretion to exercise mercy, Delaware was consistent with the overall trends

in states that retained the death penalty in the twentieth century.40 But, by allowing

the sentencing judge to disregard that mercy recommendation and instead impose

death, Delaware was nearly alone.41 ―By the end of World War I, all but eight

States, Hawaii, and the District of Columbia either had adopted discretionary death

penalty schemes or abolished the death penalty altogether. By 1963, all of these

(2015); Glenn W. Samuelson, Why Was Capital Punishment Restored in Delaware?, 60 J. CRIM.

L. & CRIMINOLOGY 148, 148 (1969).

37

See 29 Del. C. ch. 266 (1917); see also State v. Thomas, 111 A. 538, 539 (Del. 1920); State v.

Carey, 178 A. 877, 878 (Del. O. &. T. 1935).

38

See Dickerson, 298 A.2d at 764 n.6.

39

See id.

40

See Woodson, 428 U.S. at 289; see also Sheri Lynn Johnson et al., The Delaware Death

Penalty: An Empirical Study, 97 IOWA L. REV. 1925, 1929 (2012).

41

See Andres, 333 U.S. at 758 (Frankfurter, J., concurring) (―In three States a jury‘s

recommendation of life imprisonment is not binding on the trial court: Delaware, New Mexico,

and Utah.‖). It appears that there was only one instance in which a trial judge imposed death

when a jury recommended mercy, and that sentence was overturned on other grounds, depriving

this Court of the chance to address whether that judicial override was proper. See Jenkins v.

State, 230 A.2d 262, 265 & n.1 (Del. 1967).

16

remaining jurisdictions had replaced their automatic death penalty statutes with

discretionary jury sentencing.‖42

Given the continued centrality of the jury in capital sentencing in the United

States, it was perhaps mundane for the Supreme Court to say in Witherspoon v.

Illinois43 in 1968 that capital juries ―express the conscience of the community on

the ultimate question of life or death.‖44 After all, as of the time Witherspoon was

decided, jury sentencing in capital cases was not only the norm, but was used in all

but two states.45 By contrast, judicial sentencing for non-capital cases had become

prevalent, with prison sentences the primary form of punishment for most serious

crimes. Importantly, it was only in this same time period that the Supreme Court

held in Duncan v. Lousiana46 that the Fourteenth Amendment incorporates the

Sixth Amendment‘s right to a jury trial.47

As of that time, the U.S. Supreme Court had still not held that the

Constitution placed any particular limits on states‘ imposition of the death penalty.

42

Woodson, 428 U.S. at 291–92; see also Andres, 333 U.S. at 759 (Frankfurter, J., concurring);

Brief for the United States as Amicus Curiae at 36, McGautha v. California, 402 U.S. 183

(1971).

43

391 U.S. 510 (1968).

44

Id. at 519.

45

See id. at 525–27 & nn. 2–8; Bryan A. Stevenson, The Ultimate Authority on the Ultimate

Punishment, 54 ALA. L. REV. 1091, 1140 (2003); see also Johnson v. Texas, 509 U.S. 350, 359

(1993); Lockett v. Ohio, 438 U.S. 586, 597–98 (1978); Stephen P. Garvey, ―As the Gentle Rain

From Heaven‖: Mercy in Capital Sentencing, 81 CORNELL L. REV. 989, 996 (1996); Susan R.

Klein & Jordan M. Steiker, The Search for Equality in Criminal Sentencing, 2002 SUP. CT. REV.

223, 262–65; Lillquist, supra note 6, at 648; infra note 228 and accompanying text.

46

391 U.S. 145.

47

See id. at 149; see also Parker, 385 U.S. at 364.

17

Before then, ―the death penalty was widely authorized‖ and states were not

required by any judicial mandate implementing the federal Constitution to narrow

the class of defendants eligible for death or to otherwise ensure that the death

penalty was not applied in an arbitrary or discriminatory manner.48 Consistent

with the traditional lack of a federal role in these areas, the Supreme Court issued a

decision in 1971 in McGautha v. California,49 holding that a state did not need to

provide capital sentencing juries with any kind of guidance or list of considerations

to use in making the life-or-death determination. The Court explained why:

In light of history, experience, and the present limitations of human

knowledge, we find it quite impossible to say that committing to the

untrammeled discretion of the jury the power to pronounce life or

death in capital cases is offensive to anything in the Constitution. The

States are entitled to assume that jurors confronted with the truly

awesome responsibility of decreeing death for a fellow human will act

with due regard for the consequences of their decision and will

consider a variety of factors, many of which will have been suggested

by the evidence or by the arguments of defense counsel.50

By the beginning of the 1970s, the death penalty was being more sparingly

applied than at any previous time in our nation‘s history, and public support for the

death penalty was relatively low.51 McGautha seemed to signal the Supreme

Court‘s view that juries could, as a general matter, be trusted to exercise the

48

Stephen F. Smith, The Supreme Court and the Politics of Death, 94 VA. L. REV. 283, 287

(2008); see also Lain, supra note 28, at 18.

49

402 U.S. 183 (1971), overruled by Crampton v. Ohio, 408 U.S. 941 (1972).

50

Id. at 207–08.

51

See ANDREA D. LYON, THE DEATH PENALTY, WHAT‘S KEEPING IT ALIVE 7 (2014); Sam Kamin

& Justin Marceau, Waking the Furman Giant, 48 U.C. DAVIS L. REV. 981, 990 (2015); Lain,

supra note 28, at 18–19.

18

awesome power historically entrusted to them of making the life or death decisions

put to them without prescriptive federal judicial guideposts. Likewise, McGautha

seemed to signal that the Supreme Court would allow death penalty law to

continue to evolve based on determinations by state legislatures. But that, of

course, did not turn out to be the case.

III.

The very next year, in 1972, Furman v. Georgia upset the traditions and

destabilized the foundations on which state death penalty statutes stood, causing

some states to respond with approaches that reduced the jury‘s role in the death

penalty sentencing process.52 In Furman, the Supreme Court reviewed two

Georgia Supreme Court decisions, which affirmed death sentences for a defendant

convicted of murder and a defendant convicted of rape, and one Texas Supreme

Court decision, which affirmed a death sentence for a defendant convicted of

rape.53 In each of the death statutes at issue, ―the determination of whether the

penalty should be death or a lighter punishment was left by the State to the

discretion of the judge or of the jury.‖54 Because there was a jury trial in each of

52

See Lockett, 438 U.S. at 598; Smith, supra note 48, at 288–91; Kamin & Marceau, supra note

51, at 986–87; James S. Liebman, Slow Dancing With Death: The Supreme Court and Capital

Punishment, 1963–2006, 107 COLUM. L. REV. 1, 23 (2007).

53

See Furman, 408 U.S. at 239.

54

See id. at 240 (Douglas, J., concurring).

19

the three cases, under the Georgia and Texas statutes a jury ultimately sentenced

each of the defendants to death.55

The defendants in Furman argued that the Georgia and Texas statutes

contained ―unbridled discretion [that] made it impossible to rationally distinguish

between those who would live and those who would die.‖56 ―Certiorari was

granted limited to the following question: ‗Does the imposition and carrying out of

the death penalty in (these cases) constitute cruel and unusual punishment in

violation of the Eighth and Fourteenth Amendments?‘‖ 57 The splintered Court

held that it did.

Although the Court struck down death sentences in the cases on appeal, it

stopped short of holding the death penalty unconstitutional as a categorical matter.

In a one-paragraph per curiam opinion, the Furman majority held ―that the

imposition and carrying out of the death penalty in these cases constitute cruel and

unusual punishment in violation of the Eighth and Fourteenth Amendments.‖58

But, like the situation we find ourselves in today, the Court‘s majority could not

agree on exactly why that was so.59 Three Justices, each authoring a separate

concurring opinion, voted to strike down the death sentences because the death

55

See id.; Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital

Federal Habeas Corpus Cases, 77 N.Y.U. L. REV. 699, 716 n.80 (2002).

56

Lain, supra note 28, at 16–17.

57

Furman, 408 U.S. at 239.

58

Id. at 239–40 (emphasis added).

59

See Lain, supra note 28, at 10–11.

20

penalty statutes in question did not provide sufficient protections to ensure that the

death penalty was not imposed in an arbitrary and capricious manner, and as a

result, were applied in a racially discriminatory manner.60 As one respected

treatise explains it, the Furman plurality ―held that the death penalty was so

arbitrarily and randomly imposed that it violated the Eighth Amendment.‖ 61 The

views of the two other Justices who voted to overturn the convictions is easier to

state: They viewed any imposition of the death penalty to any defendant to be

cruel and unusual punishment, and therefore as unconstitutional under the Eighth

and Fourteenth Amendments.62

Despite the lack of consensus, Furman clarified that a capital sentencing

scheme must meet a basic hurdle to avoid violating the Eighth Amendment:

―Furman mandates that where discretion is afforded a sentencing body on a matter

so grave as the determination of whether a human life should be taken or spared,

that discretion must be suitably directed and limited so as to minimize the risk of

wholly arbitrary and capricious action.‖63 In other words, what Furman

60

See Furman, 408 U.S. at 256–57 (Douglas, J., concurring); id. at 308, 310 (Stewart, J.,

concurring); id. at 310–11, 313 (White, J., concurring).

61

6 LAFAVE, ET AL., supra note 12, § 26.1(b), at 671.

62

See Furman, 408 U.S. at 305 (Brennan, J., concurring); id. at 369 (Marshall, J., concurring).

63

Gregg, 428 U.S. at 189; see also Zant v. Stephens, 462 U.S. 862, 876–77 (1983); Douglass,

supra note 6, at 1994.

21

established is that the sentencer in a capital case cannot have ―unbridled

discretion‖ in sentencing a defendant.64

IV.

Given that the common practice in the states before Furman was to give to

the jury the discretion to impose a life or death sentence, Furman had the practical

effect of ―str[iking] down virtually every death penalty law nationwide,‖ 65 and

creating a de facto moratorium on executions.66 In fact, ―[w]hen the Supreme

Court decided Furman in 1972, almost everyone—including the Justices

themselves—believed that America had seen its last execution.‖67 But after

Furman, the prior trends in the states reversed course. Instead of reacting to

Furman by abolishing death penalty statutes as most people had expected, states

responded by passing new death penalty statutes that they thought would satisfy

the requirements Furman established.68 Indeed, after Furman defendants again

began being given death sentences at very high rates.69

64

Woodson, 428 U.S. at 285 (emphasis added); see also Eddings v. Oklahoma, 455 U.S. 104,

110–12 (1982); Douglass, supra note 6, at 1995.

65

Smith, supra note 48, at 288; FRANKLIN E. ZIMRING & GORDON HAWKINS, CAPITAL

PUNISHMENT AND THE AMERICAN AGENDA 41 (1986); Liebman, supra note 52, at 23.

66

See Baze v. Rees, 553 U.S. 35, 88 (2008) (Scalia, J., concurring); Lain, supra note 28, at 19.

67

Lain, supra note 28, at 45; see also Furman, 408 U.S. at 313 (White, J., concurring); LEE

EPSTEIN & JOSEPH F. KOBYLKA, THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE

DEATH PENALTY 81 (1992); Arthur J. Goldberg, The Death Penalty and the Supreme Court, 15

ARIZ. L. REV. 355, 367 (1973).

68

See Callins v. Collins, 510 U.S. 1127, 1144 (1994) (Scalia, J., concurring).

69

See Lain, supra note 28, at 47–49; Smith, supra note 48, at 290; ZIMRING & HAWKINS, supra

note 65, at 39.

22

To avoid arbitrariness and comply with the Eighth Amendment as

interpreted in Furman, states experimented. Some states changed their capital

sentencing schemes after Furman to allow the trial judge to make the ultimate

life-or-death decision.70 Many other states enacted mandatory statutes, which

outlined a specific category of crimes for which the death penalty was the required

sentence.71 The rationale behind these statutes was an obvious response to

Furman‘s concern about arbitrariness and discrimination: If every defendant who

committed a capital offense was subject to death, there would be no discrimination

or arbitrariness in the sentencing process. Conviction would invariably equal

death.72

Still other states took a different approach. To rationally narrow the crimes

for which death was a possibility, states began to adopt more specific statutes

under which a defendant would be eligible for a death sentence only if he was

found to have committed, for example, not just a homicide, but a type of homicide

that the statute identified as especially egregious and deserving of harsh

punishment.73 Thus, the post-Furman capital sentencing statutes often included

70

See Stephen Gillers, Deciding Who Dies, 129 U. PA. L. REV. 1, 17–18, 43 (1980) (eight states

switched from jury sentencing to judge sentencing after Furman).

71

See Lain, supra note 28, at 56–57.

72

See Poulos, supra note 10, at 186.

73

See Liebman, supra note 52, at 10.

23

lists of aggravating factors intended to narrow the scope of death eligible crimes

and defendants.74

V.

By the bicentennial, this period of legislative reaction had resulted in cases

ripe for Supreme Court consideration. On July 2, 1976, the Supreme Court

decided four cases that addressed the constitutional adequacy of several states‘

attempts to comply with Furman. The most famous of these so-called ―July 2nd

cases‖ was, of course, Gregg v. Georgia.75 At issue in Gregg was the

constitutionality of Georgia‘s capital sentencing scheme that was structurally

similar to that which had been struck down in Furman,76 but which attempted to

address Furman‘s requirements by ―provid[ing] some sort of criteria to guide the

jury‘s discretion in determining whether to impose death.‖77 The Supreme Court

upheld Georgia‘s new capital sentencing scheme and clarified that its holding in

Furman was limited to the imposition of the death penalty in the specific Georgia

and Texas cases at issue in Furman under the then-existing statutes.78 In keeping

with what it then viewed as the popular opinion in the United States,79 the Court

held in Gregg ―that the punishment of death does not invariably violate the

74

See id.; Douglass, supra note 6, at 1994.

75

428 U.S. 153 (1976).

76

See Liebman, supra note 52, at 28.

77

Lain, supra note 28, at 55 n.317.

78

See Gregg, 428 U.S. at 168–69.

79

See id. 179.

24

Constitution,‖ and specifically the Eighth Amendment.80 And, the Court held that

capital punishment is not a cruel and unusual punishment for the crime of murder,

but is ―an extreme sanction, suitable to the most extreme of crimes.‖81

Of equal importance to Gregg‘s validation of state approaches involving

what some have called ―guided discretion‖ was the Supreme Court‘s rejection of

mandatory statutes as an answer to its concerns over capricious imposition of the

death penalty. In Woodson v. North Carolina,82 the Court reviewed the death

sentences of four defendants who had been convicted of first degree murder

resulting from their participation in an armed robbery. North Carolina was one of

the states that amended their capital sentencing schemes after Furman to make

death the mandatory sentence for eligible crimes. After ―sketching the history of

mandatory death penalty statutes in the United States,‖ the Court noted that its

findings ―reveal[] that the practice of sentencing to death all persons convicted of a

particular offense has been rejected as unduly harsh and unworkably rigid.‖ 83 And,

the Court observed, ―a mandatory death penalty statute . . . does not fulfill

Furman‘s basic requirement by replacing arbitrary and wanton jury discretion with

80

Id. at 169; see also Jurek v. Texas, 428 U.S. 262, 268 (1976).

81

Gregg, 428 U.S. at 187; see also Kansas v. Marsh, 548 U.S. 163, 173–74 (2006).

82

428 U.S. 280.

83

Id. at 289, 293; see also Roberts v. Louisiana, 428 U.S. 325, 335–36 (1976) (same).

25

objective standards to guide, regularize, and make rationally reviewable the

process for imposing a sentence of death.‖84

Woodson then observed that an additional ―constitutional shortcoming of the

North Carolina statute is its failure to allow the particularized consideration of

relevant aspects of the character and record of each convicted defendant before the

imposition upon him of a sentence of death.‖85 The Court explained:

[I]n capital cases the fundamental respect for humanity underlying the

Eighth Amendment requires consideration of the character and record

of the individual offender and the circumstances of the particular

offense as a constitutionally indispensable part of the process of

inflicting the penalty of death. This conclusion rests squarely on the

predicate that the penalty of death is qualitatively different from a

sentence of imprisonment, however long. Death, in its finality, differs

more from life imprisonment than a 100-year prison term differs from

one of only a year or two. Because of that qualitative difference, there

is a corresponding difference in the need for reliability in the

determination that death is the appropriate punishment in a specific

case.86

After Woodson, it was widely believed that states could not specify by

statute a list of crimes for which conviction would automatically result in a death

sentence. Although the Supreme Court had supposedly left open that the murder

of a prison guard by a prisoner might be an exception87—a possibility the Supreme

84

Id. at 303.

85

Id.

86

Id. at 304–05.

87

See id. at 287 n.7; id. at 292 n.25.

26

Court later expressly rejected in 198788—commentators viewed the mandatory

approach as having been soundly rejected.89

And in Jurek v. Texas,90 the Supreme Court reviewed the conviction of a

Texas man sentenced to death for murder. The Texas statute at issue required the

sentencing jury to consider the aggravating factors during sentencing, but did not

allow consideration of mitigating factors. The Supreme Court invalidated that

statute, holding that ―in order to meet the requirement of the Eighth and Fourteenth

Amendments, a capital-sentencing system must allow the sentencing authority to

consider mitigating circumstances.‖91 ―A jury,‖ the Court reasoned, ―must be

allowed to consider on the basis of all relevant evidence not only why a death

sentence should be imposed, but also why it should not be imposed.‖92

In the final July 2nd case, the Supreme Court upheld the capital sentencing

schemes that were amended after Furman to switch from jury to judge sentencing

in capital cases from an Eighth Amendment challenge. In Proffitt v. Florida,93 the

Court recognized ―that jury sentencing in a capital case can perform an important

societal function,‖ but nevertheless explained that the Court had ―never suggested

88

See Sumner v. Shuman, 483 U.S. 66, 77–78 (1987).

89

See, e.g., Margaret Jane Radin, The Jurisprudence of Death: Evolving Standards for the Cruel

and Unusual Punishments Clause, 126 U. PA. L. REV. 989, 999 (1978); Death Penalty, 90 HARV.

L. REV. 63, 64, 69 (1976).

90

428 U.S. 262.

91

Id. at 271; see also Woodson, 428 U.S. at 303–04; Lockett, 438 U.S. at 605; Douglass, supra

note 6, at 1994–95.

92

Jurek, 428 U.S. at 271.

93

428 U.S. 242 (1976).

27

that jury sentencing is constitutionally required.‖94 Of course, Proffitt was decided

only in 1976, less than a decade after the Court had first held that the Sixth

Amendment right to a jury applied against the states.95 And Proffitt never

examined that there had not been much basis as of 1976 to ponder the question of

whether a defendant had a right to have a jury make the final decision as to death,

given the overwhelming historical prevalence of jury sentencing authority in that

most sensitive of realms.

What followed Gregg and the other July 2nd cases was another wave of new

death penalty statutes that confirmed that Furman and its progeny had unsettled

tradition.96 Perhaps unsurprisingly, the complexity of the procedures necessary for

states to implement the death penalty in a manner consistent with the Supreme

Court‘s evolving case law raised new questions regarding the respective roles of

judge and jury.97 One consequence of the Supreme Court‘s jurisprudence was

clear, which is that it was no longer practicable for a capital defendant to be subject

to a singular proceeding after which his guilt and punishment were determined

simultaneously, because states could not establish a mandatory death sentence

regime.98 And, states were required to take steps to limit the arbitrariness in the

94

Id. at 252.

95

See supra note 47 and accompanying text.

96

See Johnson v. Texas, 509 U.S. 350, 360 (1993).

97

See Douglass, supra note 6, at 2024–25 (discussing this issue).

98

See supra notes 82–89 and accompanying text.

28

application of the death penalty.99 Thus, ―all death-penalty states abandoned

unitary trials in favor of bifurcated proceedings that separate the case into a ‗guilty‘

phase and a ‗penalty‘ phase.‖100 By and large, this meant that states had to set up a

process for the consideration of all relevant factors bearing on whether a particular

defendant deserved the death penalty, including mitigating factors relevant only to

sentencing and not to guilt or innocence. Likewise, it meant having a process to

try to ensure proportionality in the imposition of the death penalty, by making sure

that it was not imposed for crimes that were not sufficiently egregious. 101 This

proportionality review necessarily required a consideration of not just the case at

hand, but of other similar cases, and was more fitting for judicial rather than jury

performance.102

In reaction to the very cases that gave capital defendants constitutional

protections against arbitrary and capricious imposition of the death penalty, some

states adopted statutes that left them exposed to a new fate that was historically

unusual in American history—the possibility of being executed without a jury

unanimously saying that should happen. That is, as states adopted statutes that

provided specific processes to meet Furman‘s core concerns, some of them

99

See supra notes 63–64 and accompanying text.

100

Douglass, supra note 6, at 1995; see also id. at 2020.

101

See Gregg, 428 U.S. at 173; Enmund v. Florida, 458 U.S. 782, 815 (1982) (same); Weeks v.

State, 653 A.2d 266, 270 (Del. 1995).

102

See, e.g., Coker v. Georgia, 433 U.S. 584, 596 (1977); Clark v. State, 672 A.2d 1004, 1010

(Del. 1996).

29

increasingly shifted the locus of authority for capital sentencing determinations

away from juries and toward judges.103 In effect then, Furman and the July 2nd

cases set in motion a historically unprecedented period in which sentencing in

capital cases was distinct from the conviction phase, in which judges in some states

came to have a more critical role, and in which it was not even clear that juries had

to have a role at all.104

When the U.S. Supreme Court reviewed these capital sentencing statutes

that state legislatures enacted or revised in the wake of Furman and Gregg, the

Court also addressed cases focused on defendants‘ rights under the Sixth

Amendment. More specifically, after the states enacted statutory approaches to

satisfy Furman‘s key mandates, the U.S. Supreme Court issued a number of

decisions addressing various issues regarding the respective roles of judges and

juries in capital sentencing.

In Spaziano v. Florida,105 for example, the Supreme Court reviewed

Florida‘s capital sentencing scheme, which allowed the sentencing judge to

override a jury‘s recommendation of life imprisonment and impose a death

sentence.106 This is precisely what happened at Spaziano‘s sentencing, and

Spaziano contended ―that allowing a judge to override a jury‘s recommendation of

103

See Douglass, supra note 6, at 1984; Stevenson, supra note 45, at 1140.

104

See Liebman, supra note 52, at 30–34.

105

468 U.S. 447 (1984), overruled by Hurst v. Florida, 136 S. Ct. 616 (2016).

106

See id. at 451.

30

life violates the Eighth Amendment‘s proscription against ‗cruel and unusual

punishments,‘‖ and ―that the [judicial override] practice violates the Sixth

Amendment.‖107 Despite the fact that the Supreme Court had recently held in a

number of cases that procedural protections from the guilt stage of a criminal

case—including those guaranteed by the Sixth Amendment—also applied at the

penalty stage,108 the Court rejected Spaziano‘s arguments and upheld Florida‘s

capital sentencing scheme, holding ―that there is no constitutional imperative that a

jury have the responsibility of deciding whether the death penalty should be

imposed.‖109 As to Spaziano‘s Sixth Amendment argument, the Court‘s

reasoning—echoing its slight Eighth Amendment discussion in Proffitt—was so

cursory that it can be quoted in full:

This Court, of course, has recognized that a capital proceeding in

many respects resembles a trial on the issue of guilt or innocence.

Because the ―embarrassment, expense and ordeal . . . faced by a

defendant at the penalty phase of a . . . capital murder trial . . . are at

least equivalent to that faced by any defendant at the guilt phase of a

criminal trial,‖ the Court has concluded that the Double Jeopardy

Clause bars the State from making repeated efforts to persuade a

107

Id. at 457–58.

108

See, e.g., Strickland v. Washington, 466 U.S. 668, 686–87 (1984) (holding that criminal

defendants have a right to effective assistance of counsel at ―[a] capital sentencing proceeding‖

because such a proceeding ―is sufficiently like a trial in its adversarial format and in the

existences of standards for decision‖); Mempa v. Ray, 389 U.S. 128, 134 (1967) (explicitly

extending the Sixth Amendment right to counsel to sentencing); see also White, supra note 13, at

18 n.145 (―Prior to Spaziano, the Court had decided a series of cases holding that procedural

protections at the guilt stage are also applicable at the penalty stage. See, e.g., Estelle v. Smith,

451 U.S. 454 (1981) (privilege against self-incrimination and right to counsel under Massiah);

Bullington v. Missouri, 451 U.S. 430 (1981) (double jeopardy); Gardner v. Florida, 430 U.S.

349 (1977) (right to confront and rebut government evidence).‖).

109

Spaziano, 468 U.S. at 465; see also id. at 464.

31

sentencer to impose the death penalty. The fact that a capital

sentencing is like a trial in the respects significant to the Double

Jeopardy Clause, however, does not mean that it is like a trial in

respects significant to the Sixth Amendment‘s guarantee of a jury

trial. The Court‘s concern in Bullington was with the risk that the

State, with all its resources, would wear a defendant down, thereby

leading to an erroneously imposed death penalty. There is no similar

danger involved in denying a defendant a jury trial on the sentencing

issue of life or death. The sentencer, whether judge or jury, has a

constitutional obligation to evaluate the unique circumstances of the

individual defendant and the sentencer‘s decision for life is final.

More important, despite its unique aspects, a capital sentencing

proceeding involves the same fundamental issue involved in any other

sentencing proceeding—a determination of the appropriate

punishment to be imposed on an individual. The Sixth Amendment

never has been thought to guarantee a right to a jury determination of

that issue.110

Turning to Spaziano‘s Eighth Amendment argument, the Court explained that the

fact that the only three states allowed a judge to override a jury‘s recommendation

of life does not mean that those states‘ capital sentencing schemes are

unconstitutional because ―[t]he Eighth Amendment is not violated every time a

State reaches a conclusion different from a majority of its sisters over how best to

administer its criminal laws.‖111

The Court reaffirmed and extended its holding in Spaziano in several later

cases, many of which also involved Florida‘s capital sentencing scheme. In

110

Id. at 458–59 (citations omitted) (quoting Bullington v. Missouri, 451 U.S. 430, 445 (1981))

(internal quotation marks omitted).

111

Spaziano, 468 U.S. at 464.

32

Hildwin v. Florida,112 for example—―a per curiam decision without briefing,

argument, or plenary consideration‖113—the Court held that ―the Sixth Amendment

does not require that the specific findings authorizing the imposition of the

sentence of death be made by the jury.‖114 Using Spaziano as a springboard, the

Court reasoned that because ―the Sixth Amendment permits a judge to impose a

sentence of death when the jury recommends life imprisonment, . . . it follows that

it does not forbid the judge to make the written findings that authorize imposition

of a death sentence when the jury unanimously recommends a death sentence.‖115

And, in Clemons v. Mississippi,116 the U.S. Supreme Court reaffirmed its

view that the Constitution did not require jury sentencing or that a jury make all

factual findings that are necessary to sentence a defendant to death.117 The Court

also explained in Clemons that a state appellate court may uphold a death sentence

that is based in part on an invalid statutory aggravating factor—or, as I refer to it

for the sake of simplicity and functional clarity, a ―death eligibility factor‖—as

long as that error is harmless because, for example, a different death eligibility

factor existed.118

112

490 U.S. 638 (1989), overruled by Hurst v. Florida, 136 S. Ct. 616 (2016).

113

White, supra note 13, at 18.

114

Hildwin, 490 U.S. at 640–41.

115

Id. at 640 (emphasis added); see also White, supra note 13, at 18–19.

116

494 U.S. 738 (1990).

117

See id. at 745.

118

See id.

33

The Supreme Court again rejected a defendant‘s argument that the

Constitution requires jury sentencing in capital cases in Walton v. Arizona.119

There, a capital defendant challenged Arizona‘s capital sentencing scheme under

both the Sixth and Eighth Amendments. The Court first rejected Walton‘s

argument that Arizona‘s capital sentencing scheme, which required the trial judge

to make all factual findings involved in capital sentencing and gave the jury no

advisory role, was sufficiently distinct from the Florida scheme the Court had

upheld in Spaziano and Hildwin scheme, which did give the jury at least an

advisory role, to make the Arizona statute more vulnerable under the Sixth

Amendment.120 The Court was not troubled by any lesser role for the jury.

Instead, relying on Spaziano, Hildwin, and Clemons, the Court then held ―that the

Arizona capital sentencing scheme does not violate the Sixth Amendment.‖121

Second, the Court rejected Walton‘s Eighth Amendment argument, concluding that

a death penalty statute does not violate the Eighth Amendment solely because it

puts the burden of proving mitigating factors by a preponderance of the evidence

on the defendant.122

119

497 U.S. 639, overruled by Ring v. Arizona, 536 U.S. 584 (2002).

120

See id. at 648.

121

Id. at 649.

122

See id. at 650.

34

Finally, in Harris v. Alabama,123 the Supreme Court held that a capital

sentencing scheme that ―vests capital sentencing authority in the trial judge, but

requires the judge to consider an advisory jury verdict‖ was not unconstitutional.124

The Court noted the similarities between the Florida and Alabama schemes, and

observed that the key difference was that the Florida scheme which it had

previously upheld in the cases discussed above, unlike its Alabama counterpart,

required a trial judge to ―give ‗great weight‘ to the jury‘s recommendation

and . . . not override the advisory verdict of life unless ‗the facts suggesting a

sentence of death [are] so clear and convincing that virtually no reasonable person

could differ.‘‖125 Harris argued that the failure of Alabama‘s statute to provide

similar guidelines for considering the jury‘s advisory verdict rendered the statute

unconstitutional.126 But the Court disagreed: ―The Constitution permits the trial

judge, acting alone, to impose a capital sentence. It is thus not offended when a

State further requires the sentencing judge to consider a jury‘s recommendation

and trusts the judge to give it the proper weight.‖127

* * *

In sum, as the law stood at the turn of the twentieth century, the Supreme

Court itself held that jury sentencing was not required in capital cases, even though

123

513 U.S. 504 (1995).

124

Id. at 505.

125

Id. at 509 (quoting Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975)).

126

See id. at 511.

127

Id. at 515.

35

jury sentencing in death penalty cases had been predominant throughout our

nation‘s history before Furman128 and continued to be so.129 But, the Supreme

Court had placed some limits on death sentences, such as holding mandatory death

sentences unconstitutional and requiring that the sentencer consider mitigating

factors.130 And, the Supreme Court itself had recognized that its own jurisprudence

had essentially required at least two different stages within a case if a state was to

impose the death penalty consistent with the Constitution. To address the

requirement of Furman that capital sentencing discretion be narrowed to help

avoid arbitrary results, there must first be a phase that the Supreme Court has at

different times called the ―definition stage‖131 and the ―eligibility phase,‖132 the

latter of which I adopt as the more appropriate term. I refer to it as the eligibility

phase because that is the phase in which the defendant is found eligible for the

death penalty, typically as a result of a finding that one or more aggravating factors

exists that qualify his crime as making death an authorized punishment. This

eligibility phase responds to the requirements of Furman and its progeny, such as

Godfrey v. Georgia133 and Maynard v. Cartwright134 that there be a meaningful

128

See supra note 15 and accompanying text.

129

See Harris, 513 U.S. at 516–17 (Stevens, J., dissenting).

130

See supra notes 85–92 and accompanying text.

131

See, e.g., Zant, 462 U.S. at 879.

132

See, e.g., Kansas v. Carr, 136 S. Ct. 633, 642 (2016); Jones v. United States, 527 U.S. 373,

381 (1999).

133

446 U.S. 420 (1980).

134

486 U.S. 356 (1988).

36

―narrowing‖ of the class of offenders eligible for the death penalty.135 The

statutory eligibility factors are typically referred to as aggravating factors, because

they are seen as special circumstances that take a very serious crime, such as an

unlawful homicide, and make it particularly blameworthy and thus subject to the

perpetrator to a possible death sentence. Common aggravators include killing a

victim who is a peace officer and committing murder in the course of another

felony.136 As the U.S. Supreme Court itself has done for precision at times, I use

the term ―death eligibility factor‖ to describe these circumstances because it more

clearly articulates what they are, and distinguishes them from the broader use of an

aggravating circumstance in the next required phase.137 Although having their

origins in Furman‘s mandate that the circumstances in which the death penalty be

imposed be narrowed, death eligibility factors have proliferated. 138 In Delaware,

135

See Godfrey, 446 U.S. at 433; Maynard, 486 U.S. at 363–64; see also White, supra note 13, at

20 n.160.

136

See Garvey, supra note 45, at 1035; Smith, supra note 48, at 297–98.

137

See Brown v. Sanders, 546 U.S. 212, 216 n.2 (2006) (―Our cases have frequently employed

the terms ‗aggravating circumstance‘ or ‗aggravating factor‘ to refer to those statutory factors

which determine death eligibility in satisfaction of Furman‘s narrowing requirement. This

terminology becomes confusing when, as in this case, a State employs the term ‗aggravating

circumstance‘ to refer to factors that play a different role, determining which defendants eligible

for the death penalty will actually receive that penalty. To avoid confusion, this opinion will use

the term ‗eligibility factor‘ to describe a factor that performs the constitutional narrowing

function.‖ (emphasis in original) (citations omitted)).

138

See Robert J. Smith, Forgetting Furman, 100 IOWA L. REV. 1149, 1160 (2015); Jeffrey L.

Kirchmeier, Casting a Wider Net: Another Decade of Legislative Expansion of the Death Penalty

in the United States, 34 PEPP. L. REV. 1, 25 (2006); James S. Liebman & Lawrence C. Marshall,

Less is Better: Justice Stevens and the Narrowed Death Penalty, 74 FORDHAM L. REV. 1607,

1649 (2006).

37

for example, there are now twenty-two circumstances that can make a defendant

death eligible.139

That next phase, which has been referred to among other things as the

―weighing phase,‖ the ―selection phase,‖ or in my view, the ―ultimate sentencing

phase,‖ is when there is an individualized determination of the sentence for the

defendant.140 This phase was required because the Supreme Court made clear that

even if a state had narrowed the circumstances for which death was the authorized

punishment to address the concerns raised in Furman, it still could not make death

a mandatory sentence.141 Instead, Furman and the July 2nd cases taken together

mandated that a sentencing phase occur during which all relevant factors bearing

on whether the defendant should live or die must be considered, and during which

the defendant has a constitutional right to effective representation in presenting

evidence mitigating against the imposition of death. In all circumstances, the state

must afford the option for the defendant to be given the comparatively more

merciful option of a lengthy prison sentence as opposed to death.142 As discussed,

these developments and their complexity gave rise to a small number of statutes

that cabined the jury‘s historical role in the death penalty sentencing process. A

notable example was the amendment to Delaware‘s capital sentencing scheme in

139

See 11 Del. C. § 4209(e)(1).

140

Smith, supra note 48, at 364–65.

141

See Douglass, supra note 6, at 1994–95.

142

See supra notes 83–84 and accompanying text.

38

1991, which eliminated the unanimous jury requirement in capital sentencing as a

direct response to the failure of prosecutors to convince an entire jury to vote for

death in a high-profile case.143 As scholars observed, ―the presumption that judges

would be more willing to than juries to impose capital punishment appeared to

motivate the statutory change to judge sentencing.‖144

With the intricacy of this two-stage process arose further questions about the

respective role of judge and jury in the sentencing phase process, questions that

came to the fore early in this century in an important non-capital case, which I now

discuss.

VI.

In 2000, the Supreme Court decided Apprendi, which marked a major shift

in the U.S. Supreme Court‘s Sixth Amendment jurisprudence and created the

momentum behind the line of cases leading directly to Hurst. The relevant facts of

that non-death penalty case were simple. Apprendi, who was white, had pled

guilty to multiple felonies arising from an event in which he fired several bullets

into the home of a black family.145 After holding an evidentiary hearing on

Apprendi‘s intent, the trial judge concluded that Apprendi had been motivated by

143

See Hans et al., supra note 36, at 75 (the General Assembly eliminated the unanimity

requirement from § 4209 because the jury in a highly publicized murder case could not agree

unanimously on death for any of the four defendants); Joseph T. Walsh, The Limits of

Proportionality Review in Death Penalty Cases, 21 DEL. LAW. 13, 14 (2004). This Court upheld

that amendment in State v. Cohen, 604 A.2d 846 (Del. 1992).

144

Johnson et al., supra note 40, at 1954.

145

See Apprendi, 530 U.S. at 469–70.

39

racial bias.146 Under New Jersey law, if a defendant ―acted with a purpose to

intimidate an individual or group of individuals because of race, color, gender,

handicap, religion, sexual orientation or ethnicity,‖ he could be deemed to have

committed a ―hate crime‖ and be eligible for a longer sentence. 147 Thus, the trial

judge found that the ―hate crime‖ sentencing enhancement applied, and the judge

increased Apprendi‘s sentence accordingly.148 The issue the U.S. Supreme Court

faced in Apprendi was whether a judge, as opposed to a jury, could find facts that

increased the defendant‘s maximum sentence.149 The Court held that ―[o]ther than

the fact of a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt.‖150 In extending Apprendi into the sentencing guidelines

context in Blakely v. Washington,151 the Supreme Court explained ―that the

‗statutory maximum‘ for Apprendi purposes is that maximum sentence a judge

may impose solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant. . . . In other words, the relevant ‗statutory maximum‘ is not the

146

See id. at 470–71.

147

Id. at 469 (quoting N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 1999–2000)) (internal quotation

marks omitted).

148

See id. at 471.

149

See id. at 469.

150

Id. at 490.

151

542 U.S. 296 (2004).

40

maximum sentence a judge may impose after finding additional facts, but the

maximum he may impose without any additional findings.‖152

Shortly after Apprendi, the Supreme Court decided Ring v. Arizona,153 which

applied Apprendi for the first time to the death penalty sentencing process.154 Ring

was a case in which the Court was again faced with the constitutionality of the

Arizona capital sentencing scheme that it had upheld against both Sixth and Eighth

Amendment challenges in Walton.155 Ring confirmed that Apprendi‘s rule extends

to the death context, reasoning that ―[c]apital defendants, no less than noncapital

defendants . . . , are entitled to a jury determination of any fact on which the

legislature conditions an increase in their maximum punishment.‖156 In other

words, the Court explained, ―[i]f a State makes an increase in a defendant‘s

authorized punishment contingent on the finding of a fact, that fact—no matter

how the State labels it—must be found by a jury beyond a reasonable doubt.‖157

And then, recognizing that Walton and Apprendi were irreconcilable, Ring

―overrule[d] Walton to the extent that it allows a sentencing judge, sitting without a

jury, to find an aggravating circumstance necessary for imposition of the death

152

Id. at 303–04 (emphasis in original).

153

536 U.S. 584.

154

See W. David Ball, Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and

the Meaning of Punishment, 109 COLUM. L. REV. 893, 896–97 (2009).

155

See supra notes 119–122 and accompanying text.

156

Ring, 536 U.S. at 589.

157

Id. at 602.

41

penalty.‖158 The Court held that ―[b]ecause Arizona‘s enumerated aggravating

factors operate as ‗the functional equivalent of an element of a greater offense,‘ the

Sixth Amendment requires that they be found by a jury.‖159

VII.

A.

Ring occasioned one of the last major changes to Delaware‘s own death

penalty statute, and is the logical point at which to explain what our current statute

provides. As of Ring, the Delaware statute had last been amended in relevant part

in 1991 and provided that the jury‘s findings as to whether any death eligibility

factors existed and whether the aggravating factors outweighed the mitigating

factors were just advisory.160 The sentencing judge had the final say in both the

eligibility and ultimate sentencing stages.161 Delaware‘s approach was logical in

light of the post-Furman decisions. By providing that only certain homicides that

involved statutorily defined circumstances would make a defendant eligible for the

death penalty,162 the statute addressed the need to narrow the class of defendants

who could be executed. By providing for a sentencing phase during which those

factors that aggravated toward the death penalty and those that mitigated against it

158

Id. at 609.

159

Id. (internal citation omitted) (quoting Apprendi, 530 U.S. at 494 n.19).

160

See Brice v. State, 815 A.2d 314, 320 (2003).

161

See 11 Del. C. § 4209(d) (1991); S.B. 79, 137th Gen. Assemb., Reg. Sess. (Del. 1991); S.B.

449, 141st Gen Assemb., Reg. Sess. (Del. 2002).

162

See 11 Del. C. § 4209(d)(1)(a) (1991).

42

would be rationally considered,163 the Delaware statute addressed the constitutional

mandate that a death sentence not be mandatory, and instead be the product of a

rational, individualized process whereby any mitigating factor could be considered.

And, the statute also provided for an appellate process of proportionality review as

a further safeguard against the arbitrary imposition of the death penalty. 164

In Ring itself, the U.S. Supreme Court took note that Delaware‘s

then-existing capital sentencing scheme was different from the Arizona statute it

was addressing. The Ring Court explained that Delaware was one of four ―hybrid

systems, in which the jury renders an advisory verdict but the judge makes the

ultimate sentencing determinations.‖165 But Ring seemed to make Delaware‘s

statute vulnerable because the jury‘s determination as to eligibility was not

necessary, just advisory. Thus, the General Assembly amended Delaware‘s death

penalty statute, § 4209, to reflect its current form. The amendment changed the

jury‘s role in the eligibility phase ―from one that was advisory under the 1991

version of § 4209 into one that is now determinative as to the existence of any

statutory aggravating circumstances [i.e., death eligibility factors].‖166

163

See id. § 4209(d)(1)(b).

164

See id. § 4209(g).

165

Ring, 636 U.S. at 608 n.6.

166

Brice v. State, 815 A.3d 314, 320 (Del. 2003); see also House Debate on S.B. 449, 141st Gen.

Assembly (Del. 2002) (statement on behalf of the Delaware Department of Justice); Senate

Debate on S.B. 449, 141st Gen. Assembly (Del. 2000) (statement on behalf of the Delaware

Department of Justice).

43

One year after Ring and the accompanying amendment to § 4209, this Court

decided Garden v. State,167 which impelled an amendment that went in the other

direction and reduced the jury‘s role in the death penalty sentencing process even

further. In Garden, this Court reviewed the Superior Court‘s imposition of a death

sentence despite the jury‘s recommendation of life sentences by ten-to-two and

nine-to-three votes on intentional murder and felony murder charges, respectively.

In response to that judicial override, Garden reversed the sentence of death and

held ―that a trial judge must give a jury recommendation of life ‗great weight‘ and

may override such a recommendation only if the facts suggesting a sentence of

death are so clear and convincing that virtually no reasonable person could

differ.‖168 As was the case with the legislation in 1991 eliminating the unanimity

requirement for § 4209,169 the failure of the State to obtain a death sentence

because juror opposition prevented that result led to legislation to diminish the

influence of the cross-section of the community empanelled to decide whether the

defendant was guilty. To wit, to overrule Garden‘s ―great weight‖ standard,

§ 4209 was amended ―to provide that the jury‘s recommendation shall only be

‗given such consideration as deemed appropriate.‘‖170

167

815 A.2d 327 (Del. 2003).

168

Id. at 343.

169

See supra note 143 and accompanying text.

170

Michael L. Radelet, Overriding Jury Sentencing Recommendations in Florida Capital Cases:

An Update and Possible Half-Requiem, 2011 MICH. ST. L. REV. 793, 800.

44

Under the current version of § 4209, the Superior Court holds a separate

hearing to determine whether a defendant found guilty of first degree murder

should be sentenced to death or life imprisonment without parole. Unless the

defendant has waived her right to a jury trial, the jury that found the defendant

guilty is charged with answering two questions: (1) ―[w]hether the evidence shows

beyond a reasonable doubt the existence of at least 1 aggravating circumstance

[i.e., death eligibility factor] as enumerated in subsection (e)‖; and (2) ―[w]hether,

by a preponderance of the evidence . . . , the aggravating circumstances found to

exist outweigh the mitigating circumstances found to exist.‖171

The jury‘s answers to the two questions in § 4209(c)(3) are used in the two

phases of sentencing described above, the eligibility phase and the ultimate

sentencing phase. The eligibility phase involves only the jury, not the judge.

Specifically, the jury determines whether at least one death eligibility factor exists

beyond a reasonable doubt. ―[T]he jury must be unanimous as to the existence of

that statutory aggravating circumstance [i.e., death eligibility factor].‖172 If the jury

finds that no death eligibility factor exists, the judge must sentence the defendant

to life imprisonment.173 But, if the jury finds that at least one death eligibility

171

11 Del. C. § 4209(c)(3).

172

Id. § 4209(c)(3)(b)(1); see also id. § 4209(e)(1).

173

Id. § 4209(d)(2).

45

factor exists, then the defendant is death eligible and the process moves on to the

ultimate sentencing phase.174

Unlike the eligibility phase, under § 4209 the ultimate sentencing phase

involves both the jury and the judge. The ultimate sentencing ―phase does not

increase the maximum punishment, but only ensures that the punishment is

appropriate and proportional.‖175 First, the jury decides ―[w]hether, by a

preponderance of the evidence, after weighing all relevant evidence in aggravation

or mitigation . . . , the aggravating circumstances found to exist outweigh the

mitigating circumstances found to exist.‖176 Then,

the Court, after considering the findings and recommendation of the

jury and without hearing or reviewing any additional evidence, shall

impose a sentence of death if the Court finds by a preponderance of

the evidence . . . that the aggravating circumstances found by the

Court to exist outweigh the mitigating circumstances found by the

Court to exist.177

As discussed, the jury‘s finding as to whether the aggravating circumstances

outweigh the mitigating circumstances ―shall not be binding upon the Court,‖ but

―shall be given such consideration as deemed appropriate by the Court.‖178 The

trial judge thus has the final say in deciding whether a capital defendant is

sentenced to death and need not give any particular weight to the jury‘s view.

174

Id. § 4209(d)(1).

175

Swan v. State, 28 A.3d 362, 390 (Del. 2011); see also Reyes v. State, 819 A.2d 305, 317 (Del.

2003).

176

11 Del. C. § 4209(c)(3)(a)(2).

177

Id. § 4209(d)(1).

178

Id.

46

B.

After § 4209 was amended in the wake of Ring, this Court answered four

certified questions from the Superior Court in Brice v. State.179 Brice found that

the jury‘s finding of a death eligibility factor in the eligibility phase—not the

judge‘s determination in the ultimate sentencing phase—is what makes a defendant

eligible for a death sentence under § 4209:

Once the jury determines that a statutory aggravating factor exists, the

defendant becomes death eligible. Although a judge cannot sentence

a defendant to death without finding that the aggravating factors

outweigh the mitigating factors, it is not that determination that

increases the maximum punishment. Rather, the maximum

punishment is increased by the finding of the statutory aggravator

[i.e., death eligibility factor]. At that point a judge can sentence a

defendant to death, but only if the judge finds that the aggravating

factors outweigh the mitigating factors. Therefore, the weighing of

aggravating circumstances against mitigating circumstances does not

increase the punishment. Rather, it ensures that the punishment

imposed is appropriate and proportional.180

Brice also considered the ultimate sentencing phase of the Delaware statute,

which requires the sentencing judge to make her own determination of whether the

aggravating circumstances outweigh the mitigating circumstances, a decision that

is informed by a jury vote but not dictated by it unless the jury majority

recommends a life sentence. In other words, this Court examined the reality that

179

815 A.3d 314.

180

Id. at 322 (internal citations omitted); see also Swan, 28 A.3d at 390; Ortiz v. State, 869 A.2d

285, 305–06 (Del. 2005); Reyes, 819 A.2d at 316; Norcross v. State, 816 A.2d 757, 767 (Del.

2003).

47

the sentencing judge could rely on aggravating factors in addition to whatever

death eligibility factors were found by the jury. These factors—which I have

defined as aggravating factors for clarity—need not have been found by the jury.

But, the Court did not view that feature of Delaware‘s capital sentencing scheme as

problematic: ―Ring does not . . . require that the jury find every fact relied upon by

the sentencing judge in the imposition of the sentence.‖181 Thus, as long as the

jury has already found one death eligibility factor as required by Ring, the reality

that a sentencing judge under our statute may consider aggravating factors that the

jury does not find beyond a reasonable doubt ―does not ‗increase‘ the maximum

penalty that a defendant can receive.‖182 In other words, Brice embraced the

reading of Ring summarized by Justice Scalia in his concurrence in that case, in

which he stated:

What today‘s decision says is that the jury must find the existence of

the fact that an aggravating factor [i.e., a death eligibility] existed.

Those States that leave the ultimate life-or-death decision to the judge

may continue to do so—by requiring a prior jury finding of [an]

aggravating factor [i.e., a death eligibility factor] in the sentencing

phase or, more simply, by placing the aggravating-factor

determination [i.e., death eligibility determination] (where it logically

belongs anyway) in the guilt phase.183

181

Brice, 815 A.2d at 322.

182

Id.

183

Ring, 536 U.S. at 612–13 (Scalia, J., concurring).

48

VIII.

This lengthy tour has now arrived at Hurst, the new decision of the U.S.

Supreme Court that our Superior Court considered such a materially new addition

to our nation‘s constitutional jurisprudence to certify us questions covering

essentially the same issues as we confronted in Brice. The reason our learned

colleague did so is obvious from a close reading of Hurst, because Hurst can either

be seen, as I candidly admit, either as a plain application of Ring to a state, Florida,

that did not respond to Ring‘s mandate, or as signaling the recognition that a jury‘s

role in the death penalty process cannot be rigidly confined to the eligibility phase.

As is now widely known, Hurst held that Florida‘s capital sentencing

scheme was unconstitutional.184 The Florida scheme evaluated in Hurst differed

from Delaware‘s in three material ways. First, Florida‘s statute charged the jury

with deciding by a majority vote both (1) whether a death eligibility factor exists;

and (2) whether the aggravating circumstances outweigh the mitigating

circumstances. Second, Florida‘s statute did not require the jury to decide whether

a death eligibility factor exists beyond a reasonable doubt. And third, a jury under

Florida‘s statute made ―an ‗advisory sentence‘ of life or death without specifying

the factual basis of its recommendation.‖185 In Delaware, by contrast, a jury must

184

See Hurst, 136 S. Ct. at 619.

185

Id. at 620 (quoting Fla. Stat. § 921.141(2) (2015)); see also Robin Maher, Hurst v. Florida:

How Much Does the Sixth Amendment Really Protect?, GEO. WASH. L. REV. DOCKET (Jan. 17,

49

find a death eligibility factor unanimously and beyond a reasonable doubt. The

jury in Delaware is then charged with making a non-unanimous decision of

whether the aggravating factors outweigh the mitigating factors, under a

preponderance of the evidence standard. That recommendation, like in Florida, is

advisory,186 but unlike Florida, does not ask jurors to specifically vote whether they

believe death is the appropriate punishment. Despite these differences, there are

important similarities between the capital sentencing scheme struck down in Hurst

and § 4209: ―Both Florida‘s invalidated law and Delaware‘s leave the ultimate

sentencing phase and the final sentencing decision in the hands of a judge. Both

have a jury make a recommendation to the court, but this is merely advisory.‖ 187

In finding that the Florida capital sentencing scheme was unconstitutional,

the Supreme Court focused on the fact that it required the judge to find facts

because the jury‘s ―recommendation‖ was just that—a recommendation that was

advisory and to which the judge was not bound. The Court explained that ―the

Florida sentencing statute does not make a defendant eligible for death until

‗findings by the court that such person shall be punished by death.‘‖188 That

statute was unconstitutional, the Court explained, because ―[t]he Sixth Amendment

2016), http://www.gwlr.org/hurst-v-florida-how-much-does-the-sixth-amendment-really-

protect/; Judith L. Ritter, Time to Rethink Delaware’s Death Penalty?, 34 DEL. LAW. 1, 15

(2016).

186

See 11 Del. C. § 4209(c)–(d).

187

Ritter, supra note 185, at 16.

188

Hurst, 136 S. Ct. at 620 (quoting Fla. Stat. § 775.082(1)) (emphasis in original).

50

requires a jury, not a judge, to find each fact necessary to impose a sentence of

death.‖189

In explaining its understanding of Ring, the Hurst Court observed that

―Ring‘s death sentence . . . violated his right to have a jury find the facts behind his

punishment‖ because ―[h]ad Ring‘s judge not engaged in factfinding, Ring would

have received a life sentence.‖190 The Court then explained:

As with Timothy Ring, the maximum punishment Timothy Hurst

could have received without any judge-made findings was life in

prison without parole. As with Ring, a judge increased Hurst‘s

authorized punishment based on her own factfinding. In light of Ring,

we hold that Hurst‘s sentence violates the Sixth Amendment.191

In holding that Florida‘s capital sentencing scheme was unconstitutional, Hurst

expressly overruled its prior decisions addressing Florida‘s death penalty statute in

Spaziano and Hildwin ―in relevant part‖192—both cases in which the Court had

rejected a defendant‘s argument that jury sentencing is constitutionally required in

capital cases: ―Spaziano and Hildwin summarized earlier precedent to conclude

that the Sixth Amendment does not require that the specific findings authorizing

the imposition of the sentence of death be made by the jury. Their conclusion was

wrong, and irreconcilable with Apprendi.‖193 This was a move that some Justices

189

Hurst, 136 S. Ct. at 619.

190

Id. at 621.

191

Id. at 622 (emphasis added).

192

Id. at 623.

193

Id. (internal quotation marks omitted).

51

had been advocating for some time.194 But, by overruling those cases only ―in

relevant part,‖ the Court left open the notion that they were problematic only

insofar as Florida had not required a jury to make every fact finding required to

render the defendant eligible for death. The use of the term ―authorizing‖ could be

read as supporting that view, although the term could also be seen as ambiguous

and functionally indistinct from the term ―necessary.‖

That is, the meaning of Hurst is contestable because it uses language at

critical points in a way that is not necessarily consistent. For example, there is a

portion of Hurst that seems to be a vanilla application of Ring. The Court

explained that ―[t]he analysis the Ring Court applied to Arizona‘s sentencing

scheme applies equally to Florida‘s.‖195 But, there are other portions of Hurst

which use broader, or at least less narrowly cabined language, and I understand

these portions to be those which largely motivate the questions posed to us and the

contesting positions of the parties. For example, the Court couched its holding in

broader language, explaining that a jury must ―find each fact necessary to impose a

sentence of death.‖196

The Supreme Court‘s use of the term ―necessary‖ in Hurst also has

relevance because the author of Hurst, Justice Sotomayor, had earlier issued a

194

See, e.g., Woodward v. Alabama, 134 S. Ct. 405, 407 (2013) (Sotomayor, J., dissenting from

denial of cert.) (calling for reconsideration of Spaziano); Harris, 513 U.S. at 524–26 (Stevens, J.,

dissenting).

195

Hurst, 136 S. Ct. at 621–22.

196

Id. at 619 (emphasis added).

52

dissenting opinion from a denial of certiorari, in which she wrote that the ―required

finding that the aggravating factors of a defendant‘s crime outweigh the mitigating

factors is . . . necessary to impose the death penalty.‖ 197 In other words, if by

―necessary‖ in Hurst, the Supreme Court in fact meant what it said in an

unqualified way, these factors would include the findings that its own

jurisprudence mandate must be made at the ultimate sentencing phase before a

defendant can be given a death sentence. If these necessary findings must be made

by a jury, then the approach taken by Delaware would be problematic.

Notably, Hurst was not a unanimous decision. It generated a concurrence

from Justice Breyer, who is a passionate defender of judicial sentencing discretion

in the context of non-capital cases, and dissented in both Apprendi and Ring.198 At

the same time, Justice Breyer takes the position, which he anchors in the Eighth

Amendment, that no death penalty sentence can be imposed without ―a jury, not a

judge, mak[ing] the decision to sentence a defendant to death.‖199 ―[T]he danger of

unwarranted imposition of the [death] penalty,‖ Justice Breyer believes, ―cannot be

avoided unless ‗the decision to impose the death penalty is made by a jury rather

than by a single governmental official.‖200 ―Even in jurisdictions where judges are

197

See Woodward, 134 S. Ct. at 410–11 (Sotomayor, J., dissenting from denial of cert.).

198

See Apprendi, 530 U.S. at 555 (Breyer, J., dissenting); Ring, 536 U.S. at 613 (Breyer, J.,

dissenting).

199

Hurst, 136 S. Ct. at 624 (quoting Ring, 536 U.S. at 614 (Breyer, J., dissenting)).

200

See Ring, 536 U.S. at 618 (Breyer, J., dissenting) (quoting Spaziano, 468 U.S. at 469

(Stevens, J., concurring in part and dissenting in part))).

53

selected directly by the people, the jury remains uniquely capable of determining

whether, given the community‘s views, capital punishment is appropriate in the

particular case at hand.‖201 One can summarize Justice Breyer‘s position this way.

He believes that it is so vital to the fairness, regularity, and non-cruelty of any

administration of the death penalty that it must be preceded by a unanimous

determination by a jury that the defendant should die. He believes that without a

cross-section of the community unanimously agreeing a defendant should die, the

resulting penalty is cruel and unusual, because it so drastically departs from the

American tradition. As I note later, this sounds like an oblique way of saying that

there is a fundamental right to have a jury say you should die before the state can

execute you.

Finally, Justice Alito dissented in Hurst. Most importantly for present

purposes, Justice Alito called for reconsideration of Ring because he believes that

there is no Sixth Amendment right to have a jury decide any fact other than those

necessary to guilt.202 Justice Alito then explained that ―even if Ring is assumed to

be correct,‖ he would not extend it to Florida‘s capital sentencing scheme because

of the differences between Florida‘s and Arizona‘s at the time of Ring.203

201

See id. at 616.

202

See Hurst, 136 S. Ct. at 625 (Alito, J., dissenting).

203

Id.

54

After the Supreme Court decided Hurst—and after we accepted the certified

question before us—the Court vacated three Alabama death penalty convictions

―in light of Hurst.‖204 Although these orders provide no extensive guidance on

why or how Hurst affected the Alabama convictions, the obvious connection

between these cases and Hurst is that they collectively involve two of the three

capital sentencing schemes that permitted a judge to override a jury‘s

recommendation of a life sentence before Hurst—those of Florida and Alabama.205

The third such scheme is our own.

IX.

A.

The five certified questions are:

(1) Under the Sixth Amendment to the United States Constitution, may a

sentencing judge in a capital jury proceeding, independent of the jury,

find the existence of ―any aggravating circumstance,‖ statutory or

non-statutory, that has been alleged by the State for weighing in the

selection phase of a capital sentencing proceeding?

(2) If the finding of the existence of ―any aggravating circumstance,‖

statutory or non-statutory, that has been alleged by the State for

weighing in the selection phase of a capital sentencing proceeding

must be made by a jury, must the jury make the finding unanimously

and beyond a reasonable doubt to comport with federal constitutional

standards?

204

Johnson v. Alabama, 136 S. Ct. 1837 (2016); Wimbley v. Alabama, __ S. Ct. __, 2016 WL

410937 (May 31, 2016); Kirksey v. Alabama, __ S. Ct. __, 2016 WL 378578 (June 6, 2016).

205

Woodward, 134 S. Ct. at 407 (Sotomayor, J., dissenting from denial of cert.); Ross

Kleinstuber, ―Only a Recommendation‖: How Delaware Capital Sentencing Law Subverts

Meaningful Deliberations and Jurors’ Feelings of Responsibility, 19 WIDENER L. REV. 321, 325

(2013).

55

(3) Does the Sixth Amendment to the United States Constitution require a

jury, not a sentencing judge, to find that the aggravating

circumstances found to exist outweigh the mitigating circumstances

found to exist because, under 11 Del. C. § 4209, this is the critical

finding upon which the sentencing judge ―shall impose a sentence of

death‖?

(4) If the finding that the aggravating circumstances found to exist

outweigh the mitigating circumstances found to exist must be made by

a jury, must the jury make that finding unanimously and beyond a

reasonable doubt to comport with federal constitutional standards?

(5) If any procedure in 11 Del. C. § 4209‘s capital sentencing scheme

does not comport with federal constitutional standards, can the

provision for such be severed from the remainder of 11 Del. C.

§ 4209, and the Court proceed with instructions to the jury that

comport with federal constitutional standards?

Fundamentally, the first four questions may be summarized this way: Must

any death sentence be preceded by a unanimous jury verdict concluding that after

considering all the relevant aggravating and mitigating factors, the defendant

should suffer execution as his punishment, rather than the comparatively more

merciful option of a lengthy prison sentence? And, if so, must the jury make that

decision beyond a reasonable doubt?

The advocates before us take dividing positions on these questions and do so

with clarity and skill, and with a close attention to the precedent. From the State‘s

perspective, the answer to the question above is no. The State‘s well-written and

well-argued position is that Hurst must be read contextually and narrowly, and that

its use of the term ―necessary‖ cannot be divorced from other language in the

56

opinion relying on Ring and Apprendi. By ―necessary,‖ says the State, Hurst refers

only to those fact findings necessary to make the defendant statutorily eligible to

receive a death sentence. That is, in the parlance I use, the State argues that the

jury need only determine unanimously and beyond a reasonable doubt that a death

eligibility factor exists. Beyond that point, any role for the jury is entirely optional,

and a state can in fact dispense altogether with a role for the jury, and allow a

judge to use his own reasoned discretion to weigh the aggravating and mitigating

factors and decide whether to impose the death penalty. Put simply, the State

argues that Hurst should be seen as a clean-up case, where a state, Florida—that

did not view Ring as applying to its statute because the Supreme Court had not

overruled its decisions in Spaziano and Hildwin, in which it had upheld Florida‘s

capital sentencing scheme—was informed that it had to abide by Ring. The bright

line for the Sixth Amendment, in the State‘s conception, is that a jury must find

any fact necessary to authorize a form of punishment, for the narrow purpose of

making a defendant eligible for that punishment. By making the defendant eligible

to receive that punishment, though, a jury need not play any role in the ultimate

sentencing phase, even in a capital case. In other words, the State embraces the

reading of Ring given in Justice Scalia‘s concurrence in that case, and argues that

his joinder in the Hurst majority opinion is further evidence of its limited meaning.

57

By contrast, counsel for Rauf (and several of the amicus curiae) view Hurst

as going beyond Ring, and as standing for the proposition that if any finding of fact

is necessary as a pre-condition to a death sentence, the Sixth Amendment requires

that finding of fact to be made by a unanimous jury. Rauf argues from the plain

language of the Delaware statute that findings of fact that go beyond the existence

of guilt and of a death eligibility factor are ―necessary‖ for a death sentence to be

imposed in Delaware. Absent factual findings that the aggravating factors

outweigh the mitigating factors, a defendant must be given a life sentence under

the Delaware statute. Thus, these sentencing stage findings are literally ―necessary

to impose a death sentence.‖206 Rauf‘s argument builds on other U.S. Supreme

Court case law, which prevents states from having a statute whereby a death

sentence is the automatic consequence of a guilty verdict, and which requires states

to have a sentencing phase in which all mitigating factors must be rationally

considered and after which the option of giving a non-capital sentence must exist.

Rauf is joined by amicus curiae, who echo his arguments, but who also make

a more fundamental argument, which is that there is no more fundamentally

important role for a jury fairly drawn from the community than determining

whether a defendant should live or die.207 They read Hurst as recognizing a more

206

Hurst, 136 S. Ct. at 619.

207

See, e.g., Br. of Charles Hamilton Houston Institute for Race and Justice at 9–12 (hereinafter

―C. H. Houston Br.‖).

58

essential consideration that has been obscured in the complexity of the

post-Furman world, which is that the Sixth Amendment right to a jury has perhaps

its most powerful importance when the question is whether the defendant should

live or die.

B.

Against this backdrop of § 4209 and the U.S. Supreme Court‘s capital

sentencing decisions, I explain my answer to the five certified questions. But,

rather than addressing the first four questions in piecemeal fashion, I consider the

broader implications of the federal Constitution and the Supreme Court‘s precedent

addressing it on the role of the judge and the jury under § 4209. The Sixth

Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the state and district

wherein the crime shall have been committed, which district shall

have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the assistance of counsel for his

defense.208

I focus here on the question of who—jury or judge—may make the determination

whether a defendant should receive a death sentence or not because I believe it is

inarguable that the required determination in all contexts where the sentencing

authority can give a defendant death or life involves factual determinations. That

208

U.S. Const. amend. VI.

59

is clearly so under our own statute, which plainly requires that a specific finding be

made before a death sentence can be issued.209 That finding is whether ―the

aggravating circumstances found to exist outweigh the mitigating circumstances

found to exist.‖210 Our prior decisions have often noted that sentencing decisions,

including those in the death penalty context, involve an exercise of discretion

based on a weighing of facts.211 In doing so, we broke no ground, but simply

recognized an obvious reality reflected broadly in American jurisprudence that the

weighing of aggravating and mitigating factors is ―a clear factfinding directive to

which there is no exception.‖212 Thus, the question in this context is not whether

factual determinations are involved in the weighing phase of capital sentencing,

but whether the Sixth Amendment requires those factual judgments to be made by

a jury.

In one sense, the answer to the certified questions could be simple. If when

Hurst said ―necessary,‖ it meant that, then Delaware‘s death penalty statute is

209

See 11 Del. C. § 4209(c)–(d).

210

Id. § 4209(c)(3).

211

See, e.g., Zebroski v. State, 715 A.2d 75, 84 (Del. 1998) (―The balancing of aggravating and

mitigating circumstances is not a quantitative exercise, but rather a reasoned judgment as to what

factual situations require the imposition of death and which can be satisfied by life imprisonment

in light of the totality of the circumstances present.‖ (emphasis added) (internal quotation marks

omitted)); Ferguson v. State, 642 A.2d 772, 782 (Del. 1994) (―The weighing of aggravating and

mitigating circumstances involves a qualitative rather than a quantitative consideration of the

circumstances to determine the appropriate punishment. That qualitative process requires that

the jury and the judge carefully consider the specific facts of each case and, when appropriate,

not to give one or more aggravating factors independent weight.‖ (internal quotation marks

omitted) (footnotes omitted)).

212

Cunningham v. California, 549 U.S. 270, 279 (2007); see also CAMPBELL, supra note 31,

§ 9.3 at 354–59.

60

unconstitutional. Under our statute the findings required to make a defendant

―eligible‖ for the death penalty are not sufficient to enable him to be sentenced to

death. Rather, it is obvious that § 4209 makes other findings necessary. That

necessity is in fact dictated by U.S. Supreme Court precedent.

In concluding that Hurst requires the invalidation of our state‘s approach to

the death penalty, I do not wish to elide the potency of the other side of the

question. Hurst can be read as having used the loose language of necessity to

describe only what is necessary to make a defendant death eligible, especially

because the statute at issue in Hurst failed on that narrower basis, which

Delaware‘s does not. But, I am reluctant to conclude that the Supreme Court was

unaware of the implications of requiring ―a jury, not a judge, to find each fact

necessary to impose a sentence of death.‖213 If those words mean what they say,

they extend the role of a death penalty jury beyond the question of eligibility.

Even more, these words seem to be the latest spade work in the judicial unearthing

of an unattractive byproduct of a lengthy period of judicial innovation.

That byproduct is that the Furman line of U.S. Supreme Court precedent has

been a causal factor in impelling a small number of states (of which Delaware is

one) to adopt a death penalty system that would have been fundamentally alien to

the founding generation, a system under which a defendant can be executed even if

213

Hurst, 136 S. Ct. at 619.

61

a unanimous jury does not believe that is the correct penalty. 214 What has emerged

is a system whereby there is a strange admixture of the role of judge and jury in

this most sensitive of areas—an admixture that allows a defendant to go to his

death without a jury of his peers unanimously concluding that he should do so.

Although perhaps not compelled to do so by the formal logic of Hurst,215 I am

persuaded that it is not tenable under the broader logic of the case, and a

consideration of related provisions of the Constitution, including the Eighth

Amendment, to pretend any longer that this admixture is consistent with the

fundamental guarantee of a jury trial as it was understood throughout most of our

history—one in which ―[t]he Founders viewed juries as so fundamental to the

democratic experience that the right to a jury in criminal trials is the only right

expressly included twice in the Constitution‖216—and as most states still

understand it today.217

214

See Woodson, 428 U.S. at 289–93; McGautha v. California, 402 U.S. at 200 nn. 10, 11; see

also Green, supra note 17, at 421–25.

215

Because I admit that Hurst can be read more than one way, I understand why my respected

colleague in dissent views Hurst as simply an application of Ring, and as a case-specific ruling

that a jury must make all findings necessary to make a defendant eligible for the death penalty.

216

See Kleinstuber, supra note 205, at 329; see also THE DECLARATION OF INDEPENDENCE para.

3 (U.S. 1776) (listing among the reasons for separation from England: ―For depriving us in

many cases, of the benefits of Trial by Jury.‖); Letter from Thomas Jefferson to Thomas Paine

(1789) (―I consider trial by jury as the only anchor yet imagined by man, by which a government

can be held to the principles of its constitution.‖); THOMAS JEFFERSON, NOTES ON THE STATE OF

VIRGINIA 140 (J.W. Randolph ed., 1853) (―[I]f the question relate to any point of public liberty,

or if it be one in which the judges may be suspected of bias, the jury undertake to decide both

law and fact.‖); Statement of John Adams (1774) (―Representative government and trial by jury

are the heart and lungs of liberty.‖); THE FEDERALIST NO. 83 (Alexander Hamilton) (―The friends

and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the

62

In so finding, I acknowledge the argument, made powerfully by Justice

Scalia and others, that Furman unsettled the traditional practice and that the

deviation from the traditional practice that a jury simultaneously decided guilt and

punishment resulted from the decisions of three justices in Furman that said that

the death penalty could be imposed only if the sentence is imposed in some non-

arbitrary way.218 In Furman and the decisions that followed it, the Supreme Court

said that states could not find that certain crimes, such as intentional murder, were

value they set upon the trial by jury . . . .‖); Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4 (1794)

(Chief Justice John Jay instructed the jury: ―It may not be amiss, here, Gentlemen, to remind

you of the good old rule, that on questions of fact, it is the province of the jury, on questions of

law, it is the province of the court to decide. But it must be observed that by the same law,

which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to

take upon yourselves to judge of both, and to determine the law as well as the fact in

controversy. On this, and on every other occasion, however, we have no doubt, you will pay that

respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that

juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best

judges of law. But still both objects are lawfully, within your power of decision.‖); Zylstra v.

Corp. of Charleston, 1 S.C.L. (1 Bay) 382, 389 (1794) (―[T]he trial by jury is a common law

right; not the creature of the constitution, but originating in time immemorial; it is the inheritance

of every individual citizen, the title to which commenced long before the political existence of

this society; and which has been held and used inviolate by our ancestors in succession from that

period to our own time; having never been departed from, except in the instances before

mentioned. This right then, is as much out of the reach of any law, as the property of the citizen;

and the legislature has no more authority to take it away, than it has to resume a grant of land

which has been held for ages.); Klein & Steiker, supra note 45, at 265 (―Throughout this

country‘s history, judge sentencing has been the norm in the non-capital context, and jury

sentencing has been the norm in capital cases.‖); Hoffman, supra note 6, at 967; Roger Roots,

The Rise and Fall of the American Jury, 8 SETON HALL CIRCUIT REV. 1, 6 (2011) (―‗When courts

exercised their properly judicial (as opposed to administrative) functions, the decision-makers

were juries. The most striking feature of colonial sentencing was the bare modicum of authority

that judges actually exercised.‘‖ (quoting JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND

THE IDEAS IN THE MAKING OF THE CONSTITUTION 30 (1996))).

217

See Woodward, 134 S. Ct. at 407 (Sotomayor, dissenting from denial of cert.) (citations

omitted)); 6 LAFAVE, ET AL., supra note 12, § 26.2(b), at 699; see also Lillquist, supra note 6, at

650.

218

See, e.g., Ring, 536 U.S. at 610 (Scalia, J. concurring).

63

so heinous that a verdict of guilt automatically resulted in a death sentence. 219

Instead, each defendant, regardless of whether he committed an intentional murder,

had a right to have the sentencing authority consider all mitigating factors and

weigh them against the aggravating factors.220 And, of course, the full bite of

Strickland v. Washington221 enforced the duty of counsel to present those factors

with effectiveness. Not only that, to avoid arbitrariness, statutes were revised to

include procedures such as the proportionality review as a way to ensure that

capital punishment was meted out non-capriciously.222 It was these and other

mandates that states like Delaware reacted to in shaping their current death penalty

statutes. Even my long earlier account of the evolution of past death penalty

jurisprudence slights the complexity of the law in this area. For present purposes,

what must be acknowledged is that much effort has been expended by many states

since Furman, including by our own,223 to design procedures that complied with

the intricate Supreme Court case law designed to ensure that capital sentences

would only issue in conformity with the Constitution.

Obscured in the complexity of the Furman line of cases, however, was

something fundamental: The overwhelming trend before 1972 was that a

219

See supra note 84 and accompanying text.

220

See supra notes 85, 91–92 and accompanying text.

221

466 U.S. 668 (1984).

222

See Garvey, supra note 45, at 997–98; Liebman, supra note 52, at 28; supra note 69 and

accompanying text.

223

See Johnson et al., supra note 40, at 1931; Hans et al., supra note 36, at 73–78 (same).

64

defendant was not sentenced to death without the support of a unanimous jury of

the defendant‘s peers determining that was appropriate.224 Scholars225 and

judges226 have set forth this history in compelling terms. In fact, the U.S. Supreme

Court itself expressed the importance of jury sentencing in capital cases in Winston

v. United States227 in 1899:

The authority of the jury to decide that the accused shall not be

punished capitally is not limited to cases in which the court or the jury

is of opinion that there are palliating or mitigating circumstances. But

it extends to every case in which, upon a view of the whole evidence,

the jury is of opinion that it would not be just or wise to impose

capital punishment. How far considerations of age, sex, ignorance,

illness, or intoxication, of human passion or weakness, of sympathy or

clemency, or the irrevocableness of an executed sentence of death, or

an apprehension that explanatory facts may exist which have not been

brought to light, or any other consideration whatever, should be

allowed weight in deciding the question whether the accused should

or should not be capitally punished, is committed by the act of

congress to the sound discretion of the jury, and of the jury alone.228

And, as noted above,229 the Supreme Court in 1968 described the jury‘s role in

capital cases as ―express[ing] the conscience of the community on the ultimate

question of life or death.‖230

224

See supra notes13–15, 45 and accompanying text.

225

See, e.g., Smith, supra note 52, at 287–91; Lillquist, supra note 6, at 641–52; The Changing

Role of the Jury in the Nineteenth Century, 74 YALE L.J. 170, 170–74 (1964).

226

See, e.g., Woodson, 428 U.S. at 289–93 (Stewart, J.); Hoffman, supra note 6, at 963–68.

227

172 U.S. 303 (1899).

228

Id. at 313.

229

See supra note 44 and accompanying text.

230

Witherspoon, 391 U.S. at 519; see also Furman, 408 U.S. at 439–40 (Powell, J., dissenting);

Gregg, 428 U.S. at 181.

65

That juries historically acted as the sentencing authorities in capital cases is

not an anomaly. Rather, it makes sense. After all, it was the jury‘s role as the

conscience of the community on issues of proportionality and mercy that was

recognized as making its role in capital sentencing so vital. 231 As Declaration of

Independence signee and future federal judge Francis Hopkinson wrote in 1786:

[The authority to sentence] can no where be lodged so safely as with

the jury who find the fact. The proportion of punishment, equitably

due according to the nature of the offence, is not a question involved

in the technical subtleties of the law; but arises from the particular

circumstances of the case, . . . and an honest, impartial, and

conscientious jury, are as competent to this purpose, as the most

profound judge. They will necessarily have heard the state of the

whole matter, with the arguments for the prosecution, and in behalf of

the prisoner; and being a temporary body, accidentally brought

together, and impaneled for the occasion, are more likely to do

substantial justice, than a judge who is so hackneyed in criminal

prosecutions. . . .232

Given the significance that jury sentencing has historically had, then, it should

come as no surprise that ―jury sentencing is . . . the norm for capital cases.‖233

Further, one need look no further than the aggravating and mitigating factors

that the U.S. Supreme Court approved for use in making capital sentencing

determinations to see the factual nature of questions involved and how they came

to bear on the issue of what punishment the defendant should suffer. As to

231

See Winston, 172 U.S. at 313; see also Carr, 136 S. Ct. at 642; Andres, 333 U.S. at 753–54

(Frankfurter, J., concurring); Garden, 815 A.2d at 344; White, supra note 13, at 30–31.

232

2 THE MISCELLANEOUS ESSAYS AND OCCASIONAL WRITINGS OF FRANCIS HOPKINSON, ESQ.

101–02 (1792).

233

6 LAFAVE, ET AL., supra note 12, § 26.2(b), at 699.

66

aggravating factors, for example, the sentencing authority may consider ―whether

the crime was committed in the course of one of several enumerated felonies,

whether it was committed for pecuniary gain, whether it was committed to assist in

an escape from custody or to prevent a lawful arrest, and whether the crime was

especially heinous, atrocious, or cruel.‖234 As to mitigating factors, approved

considerations include ―whether the defendant has a prior criminal record, whether

the defendant acted under duress or under the influence of extreme mental or

emotional disturbance, whether the defendant‘s role in the crime was that of a

minor accomplice, and whether the defendant‘s youth argues in favor of a more

lenient sentence than might otherwise be imposed.‖235 The core of each of these

questions is a factual inquiry that a cross-section of the community is best suited to

make.236 And on an even more basic level that extends beyond the capital

sentencing context, appellate courts give enormous deference to a judge‘s or jury‘s

sentencing determination precisely because of the factual nature of the issues

involved in sentencing generally and the inescapable requirement for the

234

Proffitt, 428 U.S. at 251; see also Schriro v. Summerlin, 542 U.S. 348, 361–62 (2004)

(Breyer, J., dissenting).

235

Proffitt, 428 U.S. at 251.

236

See Carr, 136 S. Ct. at 642; Stevenson, supra note 45, at 1121.

67

sentencing authority to apply its discretionary sense of conscience and mercy to the

case at hand.237

In my view, Hurst has starkly revealed a perverse result of some of the

post-Furman efforts to adopt capital sentencing schemes that are constitutionally

satisfactory, which is that perhaps the most fundamental protection of the Sixth

Amendment has been dropped from the panoply of rights accorded to the

defendant—the right to be put to death only if twelve members of his community

agree that should happen.238 There are, of course, reasons why this fundamental

issue has been elided. They include the reality that for most crimes, judges make

the key sentencing determination. Times have changed greatly since the founding,

when prison sentences were rare, and with changing times has come a diminution

(although by no means an elimination)239 of statutorily mandated sentences. Some

cognitive dissonance can be caused by holding that, unlike other sentencing

options, a sentence of death may only be issued consistent with the Sixth

Amendment if the jury itself believes that is appropriate.

237

See 24 C.J.S. Criminal Law § 2374 Westlaw (database updated 2016); see also Caldwell v.

Mississippi, 472 U.S. 320, 340 n.7 (1985); Dorszynski v. United States, 418 U.S. 424, 431

(1974); 3 CHARLES ALAN WRIGHT ET AL., FED. PRAC. & PROC. CRIM. § 552 (4th ed. 2016).

238

See Gregg, 428 U.S. at 190; Ring, 536 U.S. at 616 (Breyer, J., concurring); Harris, 513 U.S.

at 526 (Stevens, J., dissenting); Gillers, supra note 70, at 89; MANDERY, supra note 8, at 164

(internal quotation marks omitted)); see also Woodward, 134 S. Ct. at 410 (Sotomayor, J.,

dissenting from denial of cert.).

239

E.g., Quick Facts: Mandatory Minimum Penalties, 28 FED. SENT. R. 217, 217 (2016) (of the

nearly 76,000 cases reported to the U.S. Sentencing Commission in 2014, offenders in 23.6% of

cases were ―convicted of an offense carrying a mandatory minimum penalty,‖ and at sentencing,

13.6% of offenders ―remained subject to a mandatory minimum penalty‖).

68

But if ever Emerson‘s famous maxim had purchase, it would be here. The

Supreme Court has long said that ―death is different.‖240 Furman was based on

that notion, and however Balkanized the five votes in Furman were, that case has

remained part of our nation‘s jurisprudence for forty-four years.241 Many cases

recognize that the Constitution‘s protections apply with special force to capital

cases, because of their uniquely high stakes.242 No doubt there are Justices who

have disclaimed any explicit reliance on the distinction between a case involving a

potential for a death sentence and one involving only potential incarceration. Still,

it is easy to say that the approach taken in, for example, Strickland cases—which

suggest that what an attorney must do to be effective in a death penalty case

involves greater effort than in a non-capital case243—arises from the recognized

principle that when what is at stake is of greater importance, what is a reasonable

effort must be measured against that reality. Of course, that is another way in this

240

Many cases stand for this proposition. E.g., Streetman v. Lynaugh, 484 U.S. 992, 995 (1988);

Ford v. Wainwright, 477 U.S. 399, 411 (1986); see also Beck v. Alabama, 447 U.S. 625, 637

(1980); Rummel v. Estelle, 445 U.S. 263, 272 (1980); Gardner v. Florida, 430 U.S. 349, 357–58

(1977); Harmelin v. Michigan, 501 U.S. 957, 993–94 (1991); Pennell v. State, 604 A.2d 1368,

1375 (Del. 1992); see also Scott W. Howe, The Futile Quest for Racial Neutrality in Capital

Selection and the Eighth Amendment Argument for Abolition Based on Unconscious Racial

Discrimination, 45 WM. & MARY L. REV. 2083, 2157 (2004).

241

See Glossip v. Gross, 135 S. Ct. 2726, 2759–64 (2015); Wright v. State, 633 A.2d 329, 336–

37 (Del. 1993) (same).

242

See Gilmore v. Taylor, 508 U.S. 333, 342 (1993); Murray v. Giarratano, 492 U.S. 1, 8–9

(1989) (quoting Lockett, 438 U.S. at 604) (internal citations omitted)); Ake v. Oklahoma, 470

U.S. 68, 86 (1985) (Burger, C.J., concurring); Walton, 497 U.S. at 657 (Scalia, J., dissenting).

243

See Williams v. Taylor, 529 U.S. 362, 396–99 (2000); Wiggins v. Smith, 539 U.S. 510, 523–

25 (2003); Rompilla v. Beard, 545 U.S. 374, 388–89 (2005); Douglass, supra note 6, at 1986–87.

69

context of taking into account that death is different, a point the Supreme Court has

made by:

 Narrowing the class of crimes for which the death penalty may be

imposed by holding that death may not be imposed for rape of an

adult woman,244 kidnapping,245 murder where the defendant had not

killed, attempted to kill, or intended to kill anyone,246 and rape of a

child that does not result in the child‘s death;247

 Narrowing the class of defendants eligible for the death penalty by

holding that the death penalty may not be imposed upon defendants

who are insane,248 mentally retarded,249 or minors;250 and

 Continually explaining that capital sentencing requires special

considerations and rules that are not applicable in non-capital

sentencing, including special hearsay considerations,251 special

consideration of mitigating aspects of a defendant‘s character,252 and

mandatory consideration of lesser-included offenses.253

244

See Coker v. Georgia, 433 U.S. 584, 592 (1977).

245

See Ebheart v. Georgia, 433 U.S. 917, 917 (1977).

246

See Enmund, 458 U.S. at 798–801; see also Harmelin, 501 U.S. at 994.

247

See Kennedy v. Louisiana, 554 U.S. 407, 412 (2008).

248

Ford v. Wainwright, 477 U.S. 399, 410 (1986).

249

Atkins v. Virginia, 536 U.S. 304, 321 (2002).

250

See Roper v. Simmons, 543 U.S. 551, 568 (2005); see also Thompson v. Oklahoma, 487 U.S.

815, 838 (1988).

251

See Green v. Georgia, 442 U.S. 95, 97 (1979).

252

See Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality).

253

See Beck, 447 U.S. at 627; see also Powell v. Alabama, 287 U.S. 45, 71 (1932) (―[I]n a capital

case, where the defendant is unable to employ counsel, and is incapable adequately of making

his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of

the court, whether requested or not, to assign counsel for him as a necessary requisite of due

process of law; and that duty is not discharged by an assignment at such a time or under such

circumstances as to preclude the giving of effective aid in the preparation and trial of the case.‖);

Williams v. Florida, 399 U.S. 78, 103 (1970) (holding that the Sixth Amendment does not

require the use of a jury of twelve in noncapital cases); Gardner, 430 U.S. at 362 (holding that a

death sentence imposed even in part upon information which the offender had no opportunity to

deny or explain violates the defendant‘s due process); Roberts v. Louisiana, 431 U.S. 633, 637–

38 (1977) (holding that mandatory death penalty for a particular crime violates the Eighth

Amendment); Presnell v. Georgia, 439 U.S. 14, 15–17 (1978) (per curiam) (holding that death

sentence cannot be based on an aggravating factor that was previously used to establish guilt);

70

For present purposes, the precise reason why that inspires the differential approach

is immaterial. The important thing is the undisputed reality that the Supreme Court

often applies the protections of the Constitution differently to death penalty cases

than to other criminal cases.254

Although it might be possible to resolve the case before us on the narrow

basis we did in Brice by qualifying the broad use of ―necessary‖ in Hurst to mean

only necessary to death eligibility, I believe that would involve ignoring the core

issue that Hurst and its predecessor cases have laid bare, which is how it can be

Godfrey v. Georgia, 446 U.S. 420, 428–29 (1980) (because of the death penalty‘s unique nature,

the Constitution requires that states clearly define the aggravating factors that can result in death

sentences); Caldwell v. Mississippi, 472 U.S. 320, 341 (1985) (the Eighth Amendment prohibits

a death sentence determination to be made by a jury which is told that the ultimate responsibility

for determining the appropriateness of death rests with appellate courts); Turner v. Murray, 476

U.S. 28, 36–37 (1986) (because of ―the special seriousness of the risk of improper sentencing in

a capital case,‖ ―a capital defendant accused of an interracial crime is entitled to have prospective

jurors informed of the race of the victim and questioned on the issue of racial bias‖); Sumner,

483 U.S. at 77 (answering question that was expressly reserved in Roberts v. Louisiana and

holding that the Eighth Amendment prohibits a mandatory death sentence for murder in prison

by an inmate serving a life sentence); Burger v. Kemp, 483 U.S. 776, 785 (1987) (―Our duty to

search for constitutional error with painstaking care is never more exacting than it is in a capital

case.‖); Mills v. Maryland, 486 U.S. 367, 377 (1988) (―In reviewing death sentences, the Court

has demanded even greater certainty that the jury‘s conclusions rested on proper grounds.‖);

Lankford v. Idaho, 500 U.S. 110, 127 (1991) (defendant‘s ―lack of adequate notice that the judge

was contemplating the imposition of the death sentence‖ violated the defendant‘s constitutional

rights); Simmons v. South Carolina, 512 U.S. 154, 168–69 (1994) (when a capital defendant‘s

future dangerousness is at issue and the only alternative sentence to death is life imprisonment

without possibility of parole, the defendant has the right to inform the jury of her ineligibility of

parole); see also 1 LAFAVE, ET AL., supra note 12, § 1.8(e), at 415–17; 6 LAFAVE, ET AL., supra

note 12, § 26.1(b), at 673–76.

254

For an overview of how the review of capital sentences is treated differently than the review

of non-capital sentences, a topic which the U.S. Supreme Court has not directly spoken about but

which state courts have addressed, see 24 C.J.S. Criminal Law §§ 2374–75 Westlaw (database

updated 2016); see also ARTHUR W. CAMPBELL, LAW OF SENTENCING § 14.4, at 579–82 (3d ed.

2004).

71

consistent with the Sixth Amendment (or for that matter the Eighth Amendment)

for a state to deny a defendant the right to have a jury make the determination

whether he should live or die. It is only by reference to the intricate post-Furman

jurisprudence of the U.S. Supreme Court that I can rationalize a justification for

current practice.255 That rationalization is this unsatisfactory one: Having

interpreted the Constitution to make states comply with procedures after Furman

that were not recognized before it, it would be unfair to make states do so while

requiring them to condition any death sentence on a unanimous jury verdict to that

effect.

This is not to say that close consideration of complex case law is not

important. But, it is to say that when much of that case law has slighted one of the

most central protections of the Sixth Amendment in the most compelling of

contexts,256 a consideration of the Constitution itself and its purposes is more

important.257 And the cursory rejection of the Sixth Amendment claims in

255

See Gillers, supra note 70, at 18 (―[E]ach of the eight states currently opting for judge

sentencing made that choice after Furman. Each had previously embraced jury sentencing in

some form. Their adoption of judge sentencing is an apparent attempt to meet Furman‘s unclear

commands.‖); Ritter, supra note 185, at 16 (―There is a rational argument that Apprendi requires

jury verdicts for all aggravating circumstances because these factual findings expose a defendant

to a death rather than a life sentence.‖).

256

See Stevenson, supra note 45, at 1103 (―Looking back on the entire line of pre-Ring cases on

the right to jury sentencing in capital cases, it is apparent that the die was indelibly cast in

Proffitt [v. Florida, 428 U.S. 242 (1976)] and Spaziano.‖).

257

See David A. Strauss, Foreword: Does the Constitution Mean What It Says?, 129 HARV. L.

REV. 1, 29 (2015) (―Implicit in all of this [discussion of constitutional interpretation] is Chief

Justice Marshall‘s famous statement that ‗it is a constitution we are expounding.‘ We should not

expect to treat the Constitution as if it were any ordinary text. But Chief Justice Marshall‘s

72

Spaziano and Hildwin by conclusory language without persuasive reasoning for

support is a gruel too thin to sustain the failure to recognize the vital importance of

the jury‘s role in the capital sentencing process. Hurst, of course, overruled

Spaziano and Hildwin only in relevant part, but I cannot discern interpretive

wisdom in those cases that survives Hurst, if it was ever existent.258 And to the

extent early post-Furman cases like Proffitt were grounded in the hypothesis that

judges would be better positioned to ensure the proportional, non-discriminatory

application of the death penalty than unanimous juries drawn from the

dictum is just the starting point. The idea is to see, as best we can, what we are doing when we

‗expound‘ the Constitution. Expounding the U.S. Constitution means operating in a mixed

system that comprises precedent as well as the text, and in which provisions of the Constitution

often, as I have suggested, seem to function roughly in the same way as precedents.‖ (quoting

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819)) (emphasis in original)); see also

Duncan, 391 U.S. at 155–56 (―The guarantees of jury trial in the Federal and State Constitutions

reflect a profound judgment about the way in which law should be enforced and justice

administered. A right to jury trial is granted to criminal defendants in order to prevent

oppression by the Government. Those who wrote our constitutions knew from history and

experience that it was necessary to protect against unfounded criminal charges brought to

eliminate enemies and against judges too responsive to the voice of higher authority. The

framers of the constitutions strove to create an independent judiciary but insisted upon further

protection against arbitrary action. Providing an accused with the right to be tried by a jury of

his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and

against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense

judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge,

he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions

reflect a fundamental decision about the exercise of official power—a reluctance to entrust

plenary powers over the life and liberty of the citizen to one judge or to a group of judges.‖).

258

See Douglass, supra note 6, at 1985 (―The Court‘s Sixth Amendment ruling is remarkable for

its brevity and, I suggest, for its shallow analysis. The portion of the opinion dealing with the

Sixth Amendment occupies only two paragraphs. It makes no mention of the constitutional text.

It says nothing of the history, origin, and purpose of the Sixth Amendment right to a jury. It

makes no attempt to explain, distinguish, or limit Witherspoon. . . . [T]he sum of Spaziano‘s

Sixth Amendment analysis is merely that (a) the principal issue in capital sentencing is

essentially the same as ordinary sentencing, and (b) there has never been a right to a jury for

ordinary sentencing.‖).

73

community,259 empirical evidence since then seems to have contradicted that

prediction.260 As one scholar has explained:

[W]hen it comes to capital cases, there is no historical support for the

line that Ring attempts to draw between factfinding to establish death

eligibility, on the one hand, and the ultimate sentencing, or selection

decision, on the other. There simply was no eighteenth-century

practice that limited juries to a purely factfinding role, while granting

judges the ultimate power to choose a death sentence. To the

contrary, in 1791—and indeed for more than a century thereafter—the

unified nature of capital trials left the ultimate decision of life or death

in the hands of juries.261

To my mind, the deeper logic of Apprendi, Ring, and Hurst cannot be

confined neatly to the death eligibility stage of a capital case.262 That confinement

259

See Proffitt, 428 U.S. at 252 (―[I]t would appear that judicial sentencing should lead, if

anything, to even greater consistency in the imposition at the trial court level of capital

punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is

better able to impose sentences similar to those imposed in analogous cases.‖ (internal citation

omitted)).

260

See, e.g., Hoffman, supra note 6, at 985–90; Iontcheva, supra note 17, at 356–60. As our

own state‘s experience since Furman shows, reductions in the role of the jury have not been

inspired by any error-reducing motive, but instead to make it easier for the state to obtain a death

a sentence. See supra note 143 and accompanying text. Scholars suggest that this has also been

a factor in other states‘ impingement on juries‘ ability to make the ultimate life or death

decision. See, e.g., Smith, supra note 48, at 294.

261

Douglass, supra note 6, at 2022.

262

See Smith, supra note 48, at 364–65 (―Theoretically, capital sentencing proceedings can be

disaggregated into two discrete issues: whether the defendant‘s crime is eligible for the death

penalty (aggravation) and, if so, whether the defendant nonetheless lacks the moral culpability

necessary for the ultimate sanction (mitigation). In the real world of litigation, however, the two

issues are not so neatly divided. Rather, the issue at any capital sentencing hearing is the

singular one of whether or not the defendant should be put to death.‖); White, supra note 13, at

30 (―[F]rom a functional perspective, the content of the specific aggravating circumstances

enumerated in a sentencing statute is not critical. Regardless of the specific aggravating and

mitigating circumstances to be determined, the sentencer is required to make an essentially moral

judgment as to whether the defendant should live or die. Thus, it may be argued that the capital

defendant's right to jury trial should not vary depending on the particular aggravating

circumstances to be determined.‖); Hoffman, supra note 6, at 982 (―The Court [in Apprendi and

74

can be done only by accepting an admixture of the historical understanding of the

role of the jury, based on the (understandable, but not ultimately satisfying) notion

that states have to be given wiggle room after Furman, because Furman unsettled

long-standing practices.263

Likewise, I do not find convincing an attempt to draw fine lines between the

role of the jury as a fact-finder and the role played by the sentencing authority.

Since Furman, it has been understood that whatever authority is given the power to

determine the sentence in a capital case must consider the relevant aggravating and

mitigating factors, balance them, have an option to give life, and base any

determination to give a death sentence on a determination that the aggravating

Ring] seems balanced on an impossibly difficult saddlepoint: if the Sixth Amendment means

anything, it must mean that legislatures cannot deprive criminal defendants of their right to a jury

trial by the simple artifice of labeling elements as ‗sentencing factors‘; yet there seems to be no

principled basis upon which to truly distinguish elements from sentencing factors. This dilemma

is so sharp that the slightest change of perspective or wording by one or two Justices seems to

have a magnified effect on the outcomes in these cases.‖); id. at 1000 (―Of course, the very

reason Apprendi leads to the threshold of jury sentencing is because of the impossible

distinctions it forces the system to make between the jury‘s role in deciding ‗elements‘ and the

judge‘s role in deciding ‗sentencing factors.‘‖).

263

See Douglass, supra note 6, at 1972–73 (―Unitary capital trials were the norm when the Sixth

Amendment was created. . . . Bifurcation—separating the guilt determination from the choice of

an appropriate penalty—was a procedure that evolved after the founding, initially for noncapital

sentencing. Bifurcation spread as popular resistance to the death penalty and the corresponding

rise of a prison system gave judges new options and new powers in fixing sentences. Bifurcation

came to capital cases quite late in our history, primarily in response to the Court‘s Eighth

Amendment decisions in the mid-1970s. My point in reviewing this history is not that

bifurcation is a bad idea, nor that we must try capital cases today as we did in 1791. My point is

simply that the separation of trial from capital sentencing is a post-constitutional idea that was

born from a movement away from capital punishment, not as a means to implement it. We

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.‖); supra notes 52, 96, 218 and accompanying text.

75

factors outweigh those mitigating for the comparatively more merciful one. 264 Not

only does this involve a consideration of the facts, it results in a decision of

existential fact: Whether the defendant should live or die. If U.S. Supreme Court

jurisprudence has and therefore can turn on a determination that death is

different,265 it is certainly appropriate to recognize that the decision to give death or

life is the most important one that can be made in any criminal trial, and that the

Sixth Amendment right was understood as of its adoption and for much of our

history as allocating that authority to the jury.266

As this discussion suggests, the intricacy of the judicially built regime for

capital sentencing has contributed to legal arguments, and even judicial opinions,

built on non-bearing foundations. Perhaps fearing that determining that the Sixth

Amendment requires that any death sentence be predicated at minimum on a

unanimous jury verdict would somehow require a determination that the Sixth

Amendment also requires that a jury determine any criminal sentence, judicial

opinions have taken the view that it is only those fact findings that make a

264

See Eddings, 455 U.S. at 117; Gregg, 428 U.S. at 206–07.

265

See supra note 240 and accompanying text.

266

See Furman, 408 U.S. at 449 (Powell, J., dissenting) (quoting McGautha, 402 U.S. at 207));

see also Witherspoon, 391 U.S. at 518–22 (explaining the vital role a jury plays in capital

sentencing and holding that a jury that excludes jurors opposed to capital punishment violates the

defendant‘s Sixth and Fourteenth Amendment right to an impartial sentencer); supra note 45 and

accompanying text.

76

defendant eligible to receive a death sentence that must be made by a jury.267 In

other words, they read the Sixth Amendment jury right as extending only up to

those findings they view as necessary to establish the minimum and maximum

sentences, even though other trial rights in the Constitution persist throughout the

full sentencing process, whether the sentence is imposed by a judge or jury. 268 The

logic these opinions are missing, however, is that because the U.S. Supreme Court

has held that a consideration of mitigating factors, and a balancing of the

aggravating and mitigating factors are prerequisites to death, the weighing stage of

capital sentencing will always be ―necessary‖ for the imposition of a death

sentence.269 That is, because the constitutionally required weighing phase comes

after the finding of a death eligibility factor, a step necessary for the imposition of

death will always remain after the eligibility phase occurs and no state will be able

267

See, e.g., Bell v. Cone, 543 U.S. 447, 454 n.6 (2005); United States v. Gabrion, 719 F.3d 511,

533 (6th Cir. 2013); People v. Montour, 157 P.3d 489, 498 (Colo. 2007); Brice, 815 A.2d at 322;

see also Jeffrey Abramson, Death-Is-Different Jurisprudence and the Role of the Capital Jury

OHIO ST. J. CRIM. L. 117, 121 (2004).

268

See, e.g., Mitchell v. United States, 526 U.S. 314, 327 (1999) (the Fifth Amendment right

against compelled self-incrimination extends to sentencing); McConnell v. Rhay, 383 U.S. 2, 3–4

(1968) (―[The Sixth Amendment right to counsel extends through sentencing and] must . . . be

treated like the right to counsel at other stages of adjudication.‖).

269

See Woodward, 134 S. Ct. at 411 (Sotomayor, dissenting from denial of cert.); Blystone v.

Pennsylvania, 494 U.S. 299, 322 n.15 (1990) (Brennan, J., dissenting); see also Douglass, supra

note 6, at 2004; Criminal Procedure—Confr

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