Death Is Different: The Need for Jury Unanimity in Death Penalty Cases

By Cantero, Raoul G.; Kline, Robert M. | St. Thomas Law Review, Fall 2009 | Go to article overview

Death Is Different: The Need for Jury Unanimity in Death Penalty Cases


Cantero, Raoul G., Kline, Robert M., St. Thomas Law Review


I.   Introduction
II.  Unlike All Other States, Florida Allows a Simple
     Majority of the Jury to Find the Prosecution Proved
     an Aggravating Circumstance
III. Capital Sentencing Schemes Across the Nation Require Jury
     Unanimity Before a Defendant Can Be Sentenced to Death
IV.  Allowing a Simple Majority of a Jury to Decide Whether the
     Prosecution Proved an Aggravating Circumstance May Be
     Unconstitutional
     A. Death is Different
     B. Florida's Capital Sentencing Scheme May Violate the Eighth
        Amendment
     C. Florida's Capital Sentencing Scheme May Also Violate the
        Sixth and Fourteenth Amendments
     D. No Substantive Difference Exists Between a Jury Verdict at
        Trial and a Jury's Determination of Aggravating
        Circumstances at a Separate Sentencing Proceeding
V.   The Florida Legislature Must Revisit the State's Capital Sentencing
     Scheme
     A. The History of Unanimous Verdicts
     B. Despite a Trend Away from Unanimous Verdicts, Several
        Policy Arguments Support the Need for Unanimous Verdicts
VI. Conclusion

I. INTRODUCTION

In 1972, the Supreme Court of the United States abolished the death penalty in the United States. (3) In siding with the majority, Justice Brennan wrote that "[d]eath is a unique punishment." (4) Since then, justices have repeated the maxim that "death is different." (5) Indeed, the utter irreversibility of execution sets death apart from all other punishments. (6) A death sentence represents the jury's--and by extension the community's--judgment that the defendant has forfeited the right to live. (7)

The Supreme Court has held that death penalty cases require extensive procedural safeguards. (8) Such safeguards ensure that only defendants found guilty of the most grievous crimes receive the death penalty. (9) Those safeguards must pervade all aspects of a death penalty case, from trial to appellate review. (10)

Procedural safeguards must regulate not only the judge's role, but the jury's as well. (11) By design, juries play a major role in death penalty cases. (12) They decide not only whether the defendant is guilty of a capital offense, but also whether the facts surrounding that offense are so atrocious that the defendant deserves to die. (13)

In light of the jury's significant role, all death penalty jurisdictions have a two-phase proceeding. (14) In the first phase--the trial phase--the jury must determine whether the defendant is guilty of a capital crime. (15) If the jury finds the defendant guilty, the same jury then participates in the second phase--the penalty phase--in which it determines whether the defendant's crime deserves the death penalty. (16)

Before the defendant may be sentenced to death, the prosecution must prove that one or more statutory aggravating circumstances apply. (17) Aggravating circumstances, such as murders involving torture or those committed for pecuniary gain, are thought to make a defendant more deserving of the death penalty. (18) After the prosecution's presentation of aggravating circumstances, the defendant may present evidence of mitigating factors. (19) Such circumstances, which may include a defendant's age, a childhood involving abuse, or a mental defect, may mitigate the heinous nature of the crime and make the defendant less deserving of the death penalty. (20) If the jury believes the prosecution proved the existence of one or more aggravating circumstances, the jury must then weigh the aggravating circumstances against any mitigating factor. (21)

The jury's considerations of the existence of aggravating circumstances, the existence of mitigating factors, and the relative weight of those factors, determines whether the defendant should receive the death penalty. (22) Whether the defendant should receive the severe and irrevocable penalty of death is a grave decision. Therefore, before allowing the court to impose the ultimate penalty, virtually all jurisdictions that authorize the death penalty require juries to make certain decisions unanimously. …

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Death Is Different: The Need for Jury Unanimity in Death Penalty Cases
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