DPIC Analysis: Exoneration Data Suggests Non-Unanimous Death-Sentencing Statutes Heighten Risk of Wrongful Convictions

Capital sen­tenc­ing schemes that per­mit judges to impose a death sen­tence despite the votes of one or more jurors for life cre­ate a height­ened risk that an inno­cent per­son will be wrong­ful­ly con­vict­ed and sen­tenced to death, accord­ing to a new Death Penalty Information Center analy­sis of death-row exoneration data. 

DPIC found that one or more jurors had vot­ed for life in more than 90% of the death-row exon­er­a­tions in states that per­mit­ted judges to impose death sen­tences based on a jury’s non-unan­i­mous sen­tenc­ing rec­om­men­da­tions or allowed them to over­ride jury votes for life. The three states that allowed those prac­tices—Florida, Alabama, and Delaware—col­lec­tive­ly account for one-fifth of all the death-row exon­er­a­tions since cap­i­tal pun­ish­ment resumed in the United States in 1972.

DPIC was able to deter­mine the jury vote in 30 of the 32 exon­er­a­tions aris­ing out of death sen­tences imposed in those states since 1972. In 28 of the 30 cas­es for which the jury vote is known — an astound­ing 93.3% — at least one juror had vot­ed for life. DPIC was unable to find infor­ma­tion on the jury vote for one 1974 con­vic­tion in Florida and a defen­dant in one Alabama case had waived his right to a sentencing jury.

“Death sen­tences imposed by judges with­out the unan­i­mous assent of jurors have long been con­tro­ver­sial, and for good rea­son,” said DPIC Executive Director Robert Dunham, who con­duct­ed the analy­sis. ​“They arose as a means to dis­en­fran­chise minor­i­ty jurors and they often have been applied in an arbi­trary, dis­crim­i­na­to­ry, and politi­cized man­ner. That they also appear to cre­ate a sig­nif­i­cant­ly height­ened risk that inno­cent peo­ple will be sen­tenced to death should be an impor­tant addi­tion­al con­sid­er­a­tion in decid­ing whether this out­lier prac­tice should be per­mit­ted to con­tin­ue or should be abandoned.”

Since 2015, six for­mer death-row pris­on­ers who were sen­tenced to death by judges despite juror votes for life have been exon­er­at­ed: Derral Hodgkins (2015), Ralph Wright (2017), Clemente Aguirre-Jarquin (2018), and Clifford Williams (2019) in Florida, Anthony Ray Hinton (2015) in Alabama, and Isaiah McCoy (2017) in Delaware. (Click here to enlarge photo montage.)

Alabama exe­cut­ed Nathaniel Woods March 5, 2020, despite a strong claim of inno­cence and undis­put­ed evi­dence that he was not the shoot­er. Two jurors had vot­ed to spare his life. It also exe­cut­ed Domineque Ray on February 7, 2019, with no phys­i­cal evi­dence that he was even present at the scene of the mur­der. The pros­e­cu­tion had with­held evi­dence that the only per­son who impli­cat­ed Ray in the mur­der was severe­ly men­tal­ly ill and psy­chot­ic. The jury vot­ed 11 – 1 to rec­om­mend that Ray be sen­tenced to death. Rocky Myers, who has a strong case of inno­cence and intel­lec­tu­al dis­abil­i­ty and received a 9 – 3 jury rec­om­men­da­tion for life, also faces imminent execution.

Paul Hildwin was released from prison in Florida on March 9, 2020 after spend­ing near­ly 34 years incar­cer­at­ed for a mur­der DNA evi­dence now shows he did not com­mit. Despite over­whelm­ing evi­dence of inno­cence and a Florida Supreme Court opin­ion stat­ing he would prob­a­bly be acquit­ted on retri­al, Florida pros­e­cu­tors intend­ed to retry Hildwin unless he accept­ed a plea deal for his release.

Prior stud­ies have shown that the avail­abil­i­ty of judi­cial over­ride and death sen­tences imposed by judges based on non-unan­i­mous jury votes pro­duce dis­pro­por­tion­ate­ly large num­bers of death sen­tences. A 2015 study by the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School and DPIC’s 2015 Year End Report found that more than a quar­ter of the death sen­tences imposed in the first six years of the 2010s came from the three judi­cial over­ride/non-unan­i­mous jury states. More than three-quar­ters of the death sen­tences imposed in those states dur­ing that time involved non-unan­i­mous jury votes for death.

The Data — Exonerations in Florida, Alabama, and Delaware

Florida. The 29 death-row exon­er­a­tions in Florida since 1973 are the most in the nation, as are the 25 exon­er­a­tions in cas­es tried since Furman. Allowing judges to impose death sen­tences despite one of more jurors vot­ing for life is a major reason why.

For 24 of the 25 death-row exon­er­a­tions involv­ing Florida’s post-Furman judi­cial over­ride/non-una­nim­i­ty statute, we know whether judges imposed death sen­tences despite one or more jurors choos­ing life. In those 24 cas­es, juries unan­i­mous­ly rec­om­mend­ed death only twice. 22 times, one or more jurors vot­ed for life, includ­ing four instances in which judges over­rode jury rec­om­men­da­tions for life.

Alabama. Six for­mer death-row pris­on­ers have been exon­er­at­ed in Alabama after post-Furman death sen­tences. At least one juror vot­ed for life in each of the exon­er­a­tions in which sen­tenc­ing juries were impan­eled. In three of the cas­es, judges over­rode jury rec­om­men­da­tions for life — Larry Randal Padgett (9 – 3 jury vote for life); Daniel Wade Moore (8 – 4 for life); and Walter McMillian (7 – 5 for life). Two oth­er wrong­ful­ly con­vict­ed death-row pris­on­ers, Anthony Ray Hinton and Wesley Quick, were sen­tenced to death after non-unan­i­mous sen­tenc­ing rec­om­men­da­tions by their juries. The oth­er Alabama death-row exoneree, Gary Drinkard, waived jury sentencing altogether.

Delaware. There has been one post-Furman death-row exon­er­a­tion in Delaware. Isaiah McCoy was sen­tenced to death by his tri­al judge fol­low­ing the jury’s 10 – 2 sen­tenc­ing rec­om­men­da­tion for death.

The Current Status of Judicial Override and Non-Unanimity Death-Sentencing Statutes

Three death-penal­ty states per­mit­ted judges to impose death sen­tences by over­rid­ing jury votes for life or by bas­ing their death sen­tences on non-unan­i­mous jury rec­om­men­da­tions for death: Florida, Alabama, and Delaware. (To see how oth­er states han­dle non-unan­i­mous jury sen­tenc­ing votes, see Life Verdict or Hung Jury? How States Treat Non-Unanimous Jury Votes in Capital-Sentencing Proceedings.)

That changed in 2016 after the United States Supreme Court struck down Florida’s death-penal­ty statute in Hurst v. Florida, declar­ing that a cap­i­tal defendant’s Sixth Amendment right to tri­al by jury requires ​“a jury, not a judge, to find each fact nec­es­sary to impose a sen­tence of death.” The Delaware and Florida supreme courts respond­ed by rul­ing that a unan­i­mous jury ver­dict for death was con­sti­tu­tion­al­ly required by the Sixth Amendment and/​or state con­sti­tu­tion­al jury guarantees.

The Delaware Supreme Court was the first to act, declar­ing its cap­i­tal sen­tenc­ing pro­ce­dures uncon­sti­tu­tion­al on August 2, 2016 in Rauf v. State. Four mem­bers of the court ruled that the state’s cap­i­tal sen­tenc­ing statute uncon­sti­tu­tion­al­ly empow­ered judges, rather than jurors, to decide whether the pros­e­cu­tion had proven the exis­tence of the aggra­vat­ing cir­cum­stances that are a pre­req­ui­site to impos­ing the death penal­ty. They wrote that the Sixth Amendment required a unan­i­mous jury deter­mi­na­tion of those facts, beyond a rea­son­able doubt, before the court could con­sid­er impos­ing a death sentence.

A nar­row­er 3‑justice major­i­ty of the court also ruled that the facts nec­es­sary to impose a death penal­ty in Delaware includ­ed a find­ing that aggra­vat­ing cir­cum­stances out­weigh the mit­i­gat­ing cir­cum­stances offered by the defen­dant as rea­sons to spare his or her life. Delaware’s statute vio­lat­ed the Sixth Amendment, they wrote, because it did not require that jurors unan­i­mous­ly agree that aggra­vat­ing cir­cum­stances out­weigh mit­i­ga­tion beyond a reasonable doubt. 

In December 2016, the state court ruled in Powell v. State that its deci­sion in Rauf applied to every­one sen­tenced to death in Delaware, effec­tive­ly clear­ing the state’s death row. The court’s action judi­cial­ly abol­ished both judi­cial over­ride and death ver­dicts based on non-unan­i­mous jury votes.

In response to the U.S. Supreme Court’s deci­sion in Hurst, the Florida leg­is­la­ture amend­ed its death-penal­ty statute in March 2016 to require that juries unan­i­mous­ly find at least one aggra­vat­ing cir­cum­stance beyond a rea­son­able doubt and that at least ten jurors vote for death before the tri­al judge may con­sid­er impos­ing a death sen­tence. When Alabama then repealed the judi­cial over­ride pro­vi­sions in its cap­i­tal pun­ish­ment statute in 2017, it end­ed the prac­tice in the United States. However, the death-penal­ty amend­ments in both states applied only to future cas­es, and pris­on­ers already sen­tenced to death by judi­cial over­ride are still sub­ject to execution.

In October 2016, in Hurst v. State and Perry v. State, the Florida Supreme Court declared the state legislature’s revi­sion of the state’s cap­i­tal sen­tenc­ing statute uncon­sti­tu­tion­al because it did not require a unan­i­mous jury rec­om­men­da­tion of death as a pre­con­di­tion for impos­ing a death sen­tence. In March 2017, the Florida leg­is­la­ture amend­ed the law to require a unan­i­mous jury vote for death before the tri­al judge may con­sid­er impos­ing the death penalty. 

The Florida leg­is­la­ture’s deci­sion left Alabama as the only state to per­mit judges to base a death sen­tence on a jury’s non-unan­i­mous sen­tenc­ing rec­om­men­da­tion. On January 23, 2020, a new­ly appoint­ed con­ser­v­a­tive major­i­ty on Florida Supreme Court reced­ed from deci­sions in Hurst and Perry requir­ing jury una­nim­i­ty, sig­nal­ing its will­ing­ness to uphold leg­is­la­tion rein­tro­duc­ing judi­cial over­ride and non-unan­i­mous death sen­tences. However, Florida leg­isla­tive lead­ers have indi­cat­ed that they have no inten­tion at present to return to those prior practices.

— Robert Brett Dunham
March 13, 2020
[Updated March 14, 2020 to include the then-cur­rent sta­tus of judi­cial over­ride and non-unanimity statutes.]

[Follow up: In the Spring of 2023, in response to a 9 – 3 jury vote that result­ed in a life ver­dict in the Parkland school shoot­ing case, Governor Ron DeSantis called for a return to jury non-una­nim­i­ty. DeSantis pro­posed, and the leg­is­la­ture passed, an 8 – 4 jury vote for death — the low­est stan­dard in the nation — as the thresh­old at which the tri­al judge could impose a death sentence.]