The Sixth Amendment Must Mean Something: Non-Unanimous Jury Verdicts in Capital Sentencing

TAYLOR EVANS—The true rate of wrongful convictions is “not merely unknown but unknowable.” The National Registry of Exonerations estimates that anywhere between 2% and 10% of all convictions are erroneous. Given the number of people currently incarcerated, these percentages translate to between 46,000–230,000 people serving time for a crime they did not commit. Focusing solely on death row defendants, at least 4.1% are believed to be innocent.

There are a variety of factors that lead to wrongful convictions. False confessionsmistaken eyewitness identificationjailhouse informants, and junk science are four of the more notable causes of faulty verdicts, but the depth of wrongful convictions goes far beyond these contributors. The criminal legal system is also riddled with prosecutorial misconductbad policing, and ineffective defense lawyering. Oftentimes, these individuals are not held accountable for any wrongdoing. While there are federal and state avenues for postconviction relief, reality has proven that it is incredibly difficult for defendants to bring a successful claim. Because of the obstacles in challenging convictions, the Sixth Amendment right to an impartial jury is just as crucial in the sentencing phase of a capital case—where the stakes are life or death—as it is in the trial phase.

Across the country, twenty-seven states allow death penalty sentences. Of these, only three states allow defendants to be sentenced to death without a unanimous jury verdict. Alabama permits a death sentence with a 10-2 decision, while Missouri and Indiana grant judges the authority to choose when the jury is divided. In 2015, more than 25% of death sentences resulted from a non-unanimous jury recommendation.

Prior to 2016, Florida did not require a unanimous jury verdict. Rather, a simple 7-5 majority was sufficient under state law to sentence a criminal defendant to death. Additionally, judges could override a jury’s sentencing recommendation to impose the death penalty. However, this threshold changed after Hurst v. Florida. After making its way up to the United States Supreme Court, an 8-1 majority held that “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.” Hurst was originally understood to require a unanimous jury verdict in capital sentencing, but the Florida Supreme Court reversed this interpretation three years later in State v. Poole. Despite the court’s holding in Poole, Florida never abandoned the unanimous standard—until now.  

On January 31, 2023, State Representative Berny Jacques introduced HB 555 to the state assembly. A major component of the bill seeks to change Florida’s unanimity requirement in death penalty sentencing to a mere supermajority of 8-4. HB 555 also contains a provision that would allow a judge to usurp a jury’s recommendation and sentence the criminal defendant to death. This proposed legislation comes only months after three jurors declined to impose the death penalty on Nikolas Cruz, gunman of the mass shooting at Marjory Stoneman Douglas High School. This is likely no coincidence.  

Among the states that conduct executions, Florida houses the largest number of inmates on death row. Not surprising, Florida also ranks as the state with the highest number of death row exonerations. Thirty criminal defendants have been exonerated from Florida’s death row, and almost all of them were the product of non-unanimous jury verdicts. This is consistent with data gathered from other states that lack a unanimity requirement: in more than 90% of death row exonerations, at least one juror voted for a life sentence instead of the death penalty.  

To convict someone of a crime, the Sixth Amendment requires a unanimous jury verdict. Why then, should the Constitution require any less to impose a sentence so unique in its severity and irrevocability? Given the magnitude of wrongful convictions in spite of this unanimous requirement at trial, it is especially important that constitutional safeguards are strengthened—not diminished through legislation, such as HB 555.