When Jurors Do Not Agree, Should a Death Sentence Be Imposed?

In most states, a death sen­tence may only be imposed by a jury in unan­i­mous agree­ment. But in two recent cas­es, defen­dants faced the pos­si­bil­i­ty of a death sen­tence despite the objec­tions of jurors. 

Under Missouri law, a judge may impose a death sen­tence when the jury dead­locks in the penal­ty phase. Ian McCarthy, whose jury dead­locked on sen­tenc­ing in June, recent­ly chal­lenged this pro­vi­sion as uncon­sti­tu­tion­al, argu­ing that ​“unan­i­mous jury agree­ment is nec­es­sary to ensure that death sen­tences are imposed reli­ably on the most cul­pa­ble defen­dants and reflect the judg­ment of the com­mu­ni­ty.” Two for­mer Supreme Court jus­tices made sim­i­lar points in ear­li­er cas­es. Justice Stephen Breyer not­ed in Hurst v. Florida (2016) that ​“the Eighth Amendment requires that a jury, not a judge, make the deci­sion to sen­tence a defen­dant to death.” He drew on argu­ments by Justice John Paul Stevens in Spaziano v. Florida (1984) that ​“the dan­ger of an exces­sive response can only be avoid­ed if the deci­sion to impose the death penal­ty is made by a jury rather than by a sin­gle gov­ern­men­tal official…the ques­tion whether a sen­tence of death is exces­sive in the par­tic­u­lar cir­cum­stances of any case is one that must be answered by the deci­sion­mak­er that is best able to express the con­science of the com­mu­ni­ty on the ulti­mate ques­tion of life or death.” Judge Marco Roldan ulti­mate­ly sen­tenced McCarthy to life in prison; he wrote that the ques­tion of con­sti­tu­tion­al­i­ty was for a high­er court to decide, but not­ed that Missouri is one of only two states to allow judi­cial death sen­tences when juries can­not decide. Indiana also autho­rizes the practice.

In Florida, Joshua McClellan became one of the first defen­dants to receive a death sen­tence rec­om­men­da­tion from a non-unan­i­mous jury instruct­ed under new leg­is­la­tion signed by Governor Ron DeSantis in April, which requires a min­i­mum of just 8 votes in favor of death. Under the new law, Florida joins Alabama as one of just two states that autho­rize juries to rec­om­mend death in a non-unan­i­mous vote. The U.S. Supreme Court has nev­er ruled direct­ly on whether jury una­nim­i­ty is required in death sentencing. 

In Hurst, the Supreme Court struck down a Florida scheme that required the judge to find the aggra­vat­ing facts nec­es­sary to impose death, hold­ing that the Sixth Amendment ​“requires a jury, not a judge, to find each fact nec­es­sary to impose a sen­tence of death.” Based on Hurst, the Florida Supreme Court elim­i­nat­ed non-unan­i­mous death sen­tences entire­ly and over­turned the sen­tences of near­ly 150 defen­dants whom at least one juror had vot­ed to spare. However, some defen­dants’ appeals under Hurst were still pend­ing when the new law over­turned the una­nim­i­ty require­ment ear­li­er this year. The change has cre­at­ed ​“chaos” in the state appel­late courts, with incon­sis­tent rul­ings on whether the 8 – 4 stan­dard should apply to those defen­dants who have not yet been resen­tenced under Hurst. 

The law has also gen­er­at­ed harsh crit­i­cism from legal advo­cates. ​“Florida already has the high­est num­ber of death row exon­er­a­tions in the coun­try,” said Tiffani Lennon, exec­u­tive direc­tor of the ACLU of Florida. ​“Florida is rapid­ly widen­ing the net of who will be sent to death row with absolute­ly no con­sid­er­a­tion for the flaws that will inevitably lead to the harm of more inno­cent peo­ple.” Studies sug­gest that wrong­ful con­vic­tions in past years often fea­tured non-unan­i­mous death sen­tences, with dis­sent­ing votes a prod­uct of ​“resid­ual doubt” among the jurors about the defendant’s guilt. A 2020 DPI analy­sis found that 22 of 24 Florida exon­er­a­tions for which data was avail­able (92%) involved non-unan­i­mous jury recommendations.

Note: This arti­cle was updat­ed on September 18, 2023 to reflect the fact that Ian McCarthy received a life sen­tence.