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.