JurisdictionWhat 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

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: