# Rauf v. State

> Supreme Court of Delaware · August 2, 2016 · 145 A.3d 430

URL: https://www.frixlaw.com/law-library/cases/4020973

## Case

- **Full name:** Benjamin RAUF, Defendant-Appellant, v. STATE of Delaware, Plaintiff-Appellee
- **Court:** Supreme Court of Delaware
- **Decided:** August 2, 2016
- **Citations:** 145 A.3d 430; 2016 Del. LEXIS 419; 2016 WL 4224252
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Strine, Holland, Valihura, Vaughn, Seitz
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4020973

## How later opinions describe it (automated extraction)

- holding Hurst requires the jury to weigh aggravating and mitigating circumstances

## Opinion text

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 proportiona

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4020973. Public record. Not legal advice.