Life Verdict or Hung Jury? How States Treat Non-Unanimous Jury Votes in Capital-Sentencing Proceedings

As of January 17, 2018

In 2016, the Supreme Courts of Florida and Delaware declared their death-penalty statutes to be unconstitutional because they permitted trial judges to impose the death penalty based upon a sentencing jury's non-unanimous recommendation for death. Those decisions left Alabama as the only state that permitted trial judges to impose a death sentences based upon a jury's non-unanimous sentencing recommendation.

But Alabama is not the only state that permits judges to decide what sentence to impose if a capital-sentencing jury cannot reach a unanimous sentencing verdict. Missouri and Indiana consider the lack of unanimity to constitute a "hung jury" and then mandate that the court independently decide what sentence to impose if a capital-sentencing jury cannot reach a unanimous sentencing verdict. 

No Missouri jury has imposed a death sentence since 2013, but Missouri state trial judges imposed death sentences in two cases in a four-month period between late 2017 and early 2018 under this hung-jury provision. In October 2017, a St. Charles County trial judge sentenced Marvin Rice to death after his jury deadlocked 11-1 in favor of a life sentence. In January 2018, a Greene County trial judge sentenced Craig Wood to death after his jury deadlocked 10-2 in favor of death.

DPIC has reviewed the death-penalty statutes of the 31 states that permit capital punishment and the federal death penalty statute to determine how each jurisdiction proceeds when a capital-sentencing jury does not reach a unanimous verdict in the penalty phase of a capital trial. This is what we found:

The laws of more than 70% of jurisdictions that permit capital punishment (22 states, plus the federal government) mandate an automatic life sentence if a jury cannot reach a unanimous sentencing verdict. Five states allow the state another opportunity to seek death with a new sentencing hearing before another jury. Two other states—Indiana and Missouri—remove the sentencing decision from the jury following a deadlock and transfer the decision-making authority to the judge. Another two states—Montana and Nebraska—reserve the sentencing power to the judge in all death-penalty cases. 

Here is a state-by-state breakdown of the applicable law:

JURISDICTION WHAT HAPPENS IF JURY CANNOT REACH UNANIMOUS SENTENCE
Alabama  State Can Retry Multiple Times. (Alabama is the only state that permits a judge to impose the death penalty based upon a jury's non-unanimous recommendation of death. Ten votes are required for a death recommendation. If the jury is not unanimous and fewer than ten jurors recommend death, the state can conduct a new sentencing hearing.)
Arizona State Can Retry Once
Arkansas Automatic Life
California State Can Retry Multiple Times
Colorado  Automatic Life
Florida Automatic Life
Georgia Automatic Life
Idaho Automatic Life
Indiana Judge Imposes Sentence (Can Be Death or Less)
Kansas Automatic Life
Kentucky State Can Retry Multiple Times
Loiusiana Automatic Life
Mississippi Automatic Life
Missouri Judge Imposes Sentence (Can Be Death or Less)
Montana N/A - Judge Sentencing based on jury finding aggravating factors
Nebraska N/A - Panel of judges decide sentence; if the panel is non-unanimous, then automatic life sentence
Nevada Judge Either Imposes Life or Can Empanel A New Jury
New Hampshire Automatic Life
North Carolina Automatic Life
Ohio Automatic Life
Oklahoma Automatic Life
Oregon Automatic Life
Pennsylvania Automatic Life
South Carolina Automatic Life
South Dakota Automatic Life
Tennessee Automatic Life
Texas Automatic Life
Utah Automatic Life
Virginia Automatic Life
Washington Automatic Life
Wyoming Automatic Life
U.S. Government Automatic Life