Benjamin RAUF, Defendant-Appellant, v. STATE of Delaware, Plaintiff-Appellee.
No. 39, 2016
Supreme Court of Delaware.
Submitted: June 15, 2016. Decided: August 2, 2016
145 A.3d 430
Robert GARVEY, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. No. 584, 2015. Supreme Court of Delaware. Submitted: May 18, 2016. Decided: August 2, 2016. Court Below—Superior Court of the State of Delaware, Cr. ID No. 0107010230. AFFIRMED.
Cesar FLORES, Defendant Below—Appellant, v. STATE of Delaware, Plaintiff Below—Appellee. No. 37, 2016. Supreme Court of Delaware. Submitted: June 1, 20161 Decided: August 1, 2016. Court Below—Superior Court of the State of Delaware, Cr. ID 1306011063. AFFIRMED.
Benjamin RAUF, Defendant-Appellant, v. STATE of Delaware, Plaintiff-Appellee. No. 39, 2016. Supreme Court of Delaware. Submitted: June 15, 2016. Decided: August 2, 2016.
Elizabeth R. McFarlan, Esquire, John R. Williams, Esquire, Sean P. Lugg, Esquire (Argued), Delaware Department of Justice, Wilmington, Delaware for Appellee.
Elena C. Norman, Esquire, Kathaleen St. J. McCormick, Esquire, Nicholas J. Rohrer, Esquire, Young Conaway Stargatt & Taylor LLP, Wilmington, Delaware; Marc Bookman, Esquire, Atlantic Center for Capital Representation, Philadelphia, Pennsylvania, Amicus Curiae for the Atlantic Center for Capital Representation.
Jeffrey S. Goddess, Esquire, Rosenthal, Monhait & Goddess, P.A., Wilmington, Delaware; G. Ben Cohen, Esquire, The Promise of Justice Initiative, New Orleans, Louisiana, Amicus Curiae for the Charles Hamilton Houston Institute for Race and Justice.
Richard H. Morse, Esquire, American Civil Liberties Union Foundation of Delaware, Wilmington, Delaware; Cassandra Stubbs, Esquire, Brian W. Stull, Esquire, American Civil Liberties Union Capital Punishment Project, Durham, North Carolina, Amicus Curiae for the American Civil Liberties Union Foundation of Delaware and the American Civil Liberties Union Capital Punishment Project.
Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ, Justices, constituting the Court en Banc.
PER CURIAM of Chief Justice Strine, Justice Holland, and Justice Seitz:
The State has charged the Defendant, Benjamin Rauf with one count of First Degree Intentional Murder, one count of First Degree Felony Murder, Possession of a Firearm During those Felonies, and First Degree Robbery. The State has expressed its intention to seek the death penalty if Rauf is convicted on either of the First Degree Murder counts. On January 12, 2016, the United States Supreme Court held in Hurst v. Florida that Flori-
In this case, we are asked to address important questions regarding the constitutionality of our state‘s death penalty statute. The Superior Court believed that Hurst reflected an evolution of the law that raised serious questions about the continuing validity of Delaware‘s death penalty statute. Specifically, Hurst prompted the question of whether our death penalty statute sufficiently respects a defendant‘s Sixth Amendment right to trial by jury.
Because answering the certified questions requires us to interpret not simply the Sixth Amendment itself, but the complex body of case law interpreting it, we have a diversity of views on exactly why the answers to the questions are what we have found them to be. But that diversity of views is outweighed by the majority‘s collective view that Delaware‘s current death penalty statute violates the Sixth Amendment role of the jury as set forth in Hurst. We also have a shared belief that the importance of the subject to our state and our fellow citizens, reflected in the excellent briefs and arguments of the parties, makes it useful for all the Justices to bring our various perspectives to bear on these difficult questions.
For the sake of clarity, we set forth the five questions asked and the succinct answers to them.
Question One
Under the Sixth Amendment to the United States Constitution, may a sentencing judge in a capital jury proceeding, independent of the jury, find the existence of “any aggravating circumstance,” statutory or non-statutory, that has been alleged by the State for weighing in the selection phase of a capital sentencing proceeding?
No. Because Delaware‘s capital sentencing scheme allows the judge to do this,3 it is unconstitutional.
Question Two
If the finding of the existence of “any aggravating circumstance,” statutory or non-statutory, that has been alleged by the State for weighing in the selection phase of a capital sentencing proceeding
Yes. The jury must make the finding unanimously and beyond a reasonable doubt. Because the Delaware death penalty statute does not require juror unanimity,4 it is unconstitutional.
Question Three
Does the Sixth Amendment to the United States Constitution require a jury, not a sentencing judge, to find that the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist because, under
Yes. Because Delaware‘s death penalty statute does not require the jury to perform this function,5 it is unconstitutional.
Question Four
If the finding that the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist must be made by a jury, must the jury make that finding unanimously and beyond a reasonable doubt to comport with federal constitutional standards?
Yes. We answer question four in the identical manner in which we have answered question two.
Question Five
If any procedure in
No. Because the respective roles of the judge and jury are so complicated under
Summary
This Court‘s prior cases on the constitutionality of Delaware‘s capital sentencing scheme are hereby overruled to the extent they are inconsistent with the answers in this opinion. Having answered the certified questions, the Clerk is directed to transmit the opinions in this matter to the Superior Court.
STRINE, Chief Justice, concurring in the Majority per curiam, with whom Justice HOLLAND and Justice SEITZ join:
I.
I join with a majority of my colleagues in concluding that Delaware‘s current death penalty statute conflicts with the Sixth Amendment of the United States Constitution. The importance and complexity of the subject before us is illustrated by
Distilled to their essence, the most critical of questions before us ask whether the Sixth Amendment requires a jury, rather than a judge, to make all of the factual findings in capital sentencing—including balancing those factors for itself in assessing whether death is the appropriate punishment—and, if so, whether the jury must make such findings unanimously and beyond a reasonable doubt. Although I acknowledge that the meaning of Hurst v. Florida2 is contestable, it states that “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.”3 A combination of settled U.S. Supreme Court cases makes it impossible for a state to enact a statute under which a defendant must receive the death penalty if he is convicted.
Rather, even if a jury unanimously finds that a defendant is guilty of a crime that is punishable by death—by for example, finding that a defendant has committed a particular type of murder for which the legislature has said death is a possible penalty—additional findings must be made. To sentence a defendant to death, the sentencing authority must consider all relevant factors bearing on whether the defendant should live or die, weigh those factors rationally against each other, and make an ultimate determination of whether the defendant should die or receive a comparatively more merciful sentence, typically life in prison. The option for the sentencing authority to give a prison sentence, rather than a death sentence, must always exist. After consideration of these factors and a determination that the balance of the relevant factors weighs in favor of a death sentence, the defendant cannot receive a death sentence.
For these reasons, if the core reasoning of Hurst is that a jury, rather than a judge must make all the factual findings “necessary” for a defendant to receive a death sentence,4 then Delaware‘s statute cannot stand. Because our General Assembly has acted with alacrity to address the mandates of the U.S. Supreme Court, our statute necessarily mandates a fact-intensive inquiry at the ultimate stage of sentencing, in which the factors that aggravate toward a death sentence and mitigate against it are considered and weighed. This application of the sentencing authority‘s judgment, conscience, and experience to the facts of record is what drives the ultimate decision whether the defendant should live or die. Without that exercise, no defendant
I recognize that this reading of Hurst is contestable, and that Hurst can be read as simply reiterating that any factual finding that makes a defendant eligible to receive the death penalty must be made by the jury. Under that approach, once a jury has done all that is statutorily required to make death a permissible punishment, the jury‘s constitutionally required role goes away entirely and the use of a jury at all is optional. Past case law, whose reasoning is in sharp tension with the central reasoning of Hurst and its predecessors such as Apprendi v. New Jersey,5 embraces this narrow approach.
For myself, however, I find it impossible to embrace a reading of Hurst that judicially draws a limit to the right to a jury in the death penalty context to having the jury make only the determinations necessary to make the defendant eligible to be sentenced to death by someone else, rather than to make the determinations itself that must be made if the defendant is in fact to receive a death sentence. I am unable to discern in the Sixth Amendment any dividing line between the decision that someone is eligible for death and the decision that he should in fact die. The post-Furman jurisprudence has created a regime governing death penalty cases that is intricate in design and often in tension with itself. Candor requires an acknowledgment that that jurisprudence, although no doubt well-intended, has helped impel a reduction in the historical role of American juries in the death sentencing process in a small number of states, including our own.
At the beginning of our Republic and throughout most of its history, defendants did not go to the gallows unless juries said they should. And the role of the jury was seen as especially important when a defendant‘s life was in the balance, because it made sure that a defendant would suffer the ultimate punishment only if twelve members of the community deliberated together and unanimously concluded that should be so. To me, Hurst and its predecessors surface a reality that had been somewhat obscured in the development of the law in the decades since Furman, which is that the Sixth Amendment right to a jury is most important and fundamental when the issue is whether a defendant should live or die. As the U.S. Supreme Court has long recognized, death is different. The proposition that any defendant should go to his death without a jury of his peers deciding that should happen would have been alien to the Founders, and starkly out of keeping with predominant American practices as of the time of Furman itself. The cost of useful precedent mandating that each defendant who commits a capital offense must also be accorded a rational sentencing proceeding that must include a careful consideration of those factors weighing in favor of mercy does not have to include depriving the defendant of the fundamental protection of a jury having to make the final judgment about his fate. If the right to a jury means anything, it means the right to have a jury drawn from the community and acting as a proxy for its diverse views and mores, rather than one judge, make the awful decision whether the defendant should live or die.
I therefore give Hurst its plain meaning and concur in the per curiam opinion‘s answers to the questions before us. Under our statute that faithfully respects the requirement to consider all relevant sentencing factors and allow a death penalty only after those factors are
I also note that this same result can be reached by a more oblique and alternative route, which is holding that the practice of executing a defendant without the prior unanimous vote of a jury is so out of keeping with our history as to render the resulting punishment cruel and unusual. The jury‘s historical role as an important safeguard against overreaching in this most critical of contexts was recognized at the founding, and prevails in most states today, making our own state one of the few outliers. Hurst recognizes the centrality of the jury‘s historic role, and my opinion gives effect to that recognition.
Consistent with this reasoning, I also conclude that the Delaware death penalty statute is inconsistent with the Sixth Amendment to the extent that it does not require a unanimous jury to make the key6 discretionary findings necessary to impose a death sentence by employing a beyond a reasonable doubt standard. From the inception of our Republic, the unanimity requirement and the beyond a reasonable doubt standard have been integral to the jury‘s role in ensuring that no defendant should suffer death unless a cross section of the community unanimously determines that should be the case, under a standard that requires them to have a high degree of confidence that execution is the just result.
II.
To explain how I address the certified questions and the U.S. Supreme Court cases that occasion the certified questions before us, it is critical to understand, at least in rough outline, how we as a nation and state got to where we are in the administration of the death penalty, and how different things look from when our nation was founded. By necessity, my recitation of this process is truncated, involves some simplification of a very complicated subject, and is compromised by the reality that I am a judge, and do not claim to be a historian. That said, I am aided by the many scholars and lay commentators who have lucidly outlined the basic directional facts.6
At the beginning of our Republic, prisons of the kind we now have, where many defendants spend lengthy periods of their lives, were unknown.7 Instead, nearly all
From the beginning of our nation‘s history, the jury‘s role as the sentencer in capital cases “was unquestioned.”13 This was true in Delaware, where juries made the life or death decision at the beginning of our history.14 And, without any exception I have been able to identify, no defendant was put to death in the early stages of our nation‘s history without a jury making all the necessary determinations required.15 Of course, it is a bit of a misnomer to say that juries “sentenced” defendants to death. Capital trials were not bifurcated, and “[t]he question of guilt and the question of death both were decided in a single jury verdict at the end of a single proceeding conducted as an adversarial trial.”16 But, it would be even more inaccurate to say that the jury did not have an important role in exercising its discretion and conscience in a manner that determined whether the defendant should live or die.
The starkest way in which juries did this was by acquitting a defendant who was obviously guilty.17 By this crude action of
The practice of nullification also exposed an important community viewpoint that statute writers began to recognize, which is that crimes could be serious but yet not be considered so injurious to society as to always warrant a death sentence. Therefore, as Pennsylvania had done, states increasingly narrowed the felonies for which death was a mandatory sentence.20 Degrees of murder were in large measure introduced to allow juries to convict a defendant of a degree of homicide while not exposing the defendant to death. And over time, jury discretion over sentencing was more candidly introduced, as several states moved to statutory regimes under which even a defendant convicted of the most serious of crimes—such as intentional murder—could nonetheless be given a sentence other than death. In the 1830s and 40s, the first states abandoned mandatory death sentences even in first degree murder cases and granted juries discretion in capital sentencing.21 Our own General Assembly divided murder into two degrees in 1852, with first degree murder carrying a mandatory death sentence and second degree murder carrying various harsh, non-capital sentences.22 This gave the jury an option to convict, but to exempt the defendant from death if its sense of mercy moved in that direction.23
About half of the states adopted discretionary statutes by 1900, and even more states followed soon after.24 In 1899, the U.S. Supreme Court itself well-summarized some of the key developments:
The hardship of punishing with death every crime coming within the definition of murder at common law, and the reluctance of jurors to concur in a capital conviction, have induced American legislatures, in modern times, to allow some cases of murder to be punished by imprisonment, instead of by death. That end has been generally attained in one of two ways: First. In some states and
territories, statutes have been passed establishing degrees of the crime of murder, requiring the degree of murder to be found by the jury, and providing that the courts shall pass sentence of death in those cases only in which the jury return a verdict of guilty of murder in the first degree, and sentence of imprisonment when the verdict is guilty of murder in the lesser degree.... Second. The difficulty of laying down exact and satisfactory definitions of degrees in the crime of murder, applicable to all possible circumstances, has led other legislatures to prefer the more simple and flexible rule of conferring upon the jury, in every case of murder, the right of deciding whether it shall be punished by death or by imprisonment.25
Some exceptions to the jury tradition emerged, albeit in an unsavory context that actually underscores the importance of the right to a jury. A few states, unhappy with the rights accorded to black citizens by the Fourteenth and Fifteenth Amendments, cut back on unanimity requirements for juries, in order to mute the voice of newly eligible black jurors.26 But even with these exceptions, the overall picture was remarkably consistent: Defendants received death sentences only when the jury determined they should. And that jury determination had to be unanimous.27
One byproduct of the jury‘s more explicit role in exercising sentencing discretion over whether a defendant should live or die was the emergence of a greater judicial
Before fast-forwarding to the status of these trends in practice as of when Furman was decided in 1972, another important factor must be considered. This evolution of practices emerged without intrusion by the federal Judiciary or the federal Constitution. One cannot find U.S. Supreme Court cases addressing the constitutionality of the various state approaches to these issues. That is because it was not until 1932 that the U.S. Supreme Court first began to apply the provisions in the Bill of Rights protecting criminal defendants to the states.33 And the wave of cases holding that the Fourteenth Amendment incorporated the procedural protections of criminal defendants and that the states had to abide by those protections to the same extent as the federal government rose in the era after World War II and crested in the 1960s.34
“By the end of World War I, all but eight States, Hawaii, and the District of Columbia either had adopted discretionary death penalty schemes or abolished the death penalty altogether. By 1963, all of these remaining jurisdictions had replaced their automatic death penalty statutes with discretionary jury sentencing.”42
Given the continued centrality of the jury in capital sentencing in the United States, it was perhaps mundane for the Supreme Court to say in Witherspoon v. Illinois43 in 1968 that capital juries “express the conscience of the community on the ultimate question of life or death.”44 After all, as of the time Witherspoon was decided, jury sentencing in capital cases was not only the norm, but was used in all but two states.45 By contrast, judicial sentencing for non-capital cases had become prevalent, with prison sentences the primary form of punishment for most serious crimes. Importantly, it was only in this same time period that the Supreme Court held in Duncan v. Louisiana46 that the Fourteenth Amendment incorporates the Sixth Amendment‘s right to a jury trial.47
As of that time, the U.S. Supreme Court had still not held that the Constitution placed any particular limits on states’ imposition of the death penalty. Before then, “the death penalty was widely authorized” and states were not required by any judicial mandate implementing the federal Constitution to narrow the class of defendants eligible for death or to otherwise ensure that the death penalty was not applied in an arbitrary or discriminatory manner.48 Consistent with the traditional lack of a federal role in these areas, the Supreme Court issued a decision in 1971 in McGautha v. California,49 holding that a state did not need to provide capital sentencing juries with any kind of guidance or list of considerations to use in making the life-or-death determination. The Court explained why:
In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution. The
States are entitled to assume that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision and will consider a variety of factors, many of which will have been suggested by the evidence or by the arguments of defense counsel.50
By the beginning of the 1970s, the death penalty was being more sparingly applied than at any previous time in our nation‘s history, and public support for the death penalty was relatively low.51 McGautha seemed to signal the Supreme Court‘s view that juries could, as a general matter, be trusted to exercise the awesome power historically entrusted to them of making the life or death decisions put to them without prescriptive federal judicial guideposts. Likewise, McGautha seemed to signal that the Supreme Court would allow death penalty law to continue to evolve based on determinations by state legislatures. But that, of course, did not turn out to be the case.
III.
The very next year, in 1972, Furman v. Georgia upset the traditions and destabilized the foundations on which state death penalty statutes stood, causing some states to respond with approaches that reduced the jury‘s role in the death penalty sentencing process.52 In Furman, the Supreme Court reviewed two Georgia Supreme Court decisions, which affirmed death sentences for a defendant convicted of murder and a defendant convicted of rape, and one Texas Supreme Court decision, which affirmed a death sentence for a defendant convicted of rape.53 In each of the death statutes at issue, “the determination of whether the penalty should be death or a lighter punishment was left by the State to the discretion of the judge or of the jury.”54 Because there was a jury trial in each of the three cases, under the Georgia and Texas statutes a jury ultimately sentenced each of the defendants to death.55
The defendants in Furman argued that the Georgia and Texas statutes contained “unbridled discretion [that] made it impossible to rationally distinguish between those who would live and those who would die.”56 “Certiorari was granted limited to the following question: ‘Does the imposition and carrying out of the death penalty in (these cases) constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?’ ”57 The splintered Court held that it did.
Although the Court struck down death sentences in the cases on appeal, it stopped short of holding the death penalty unconstitutional as a categorical matter. In
Despite the lack of consensus, Furman clarified that a capital sentencing scheme must meet a basic hurdle to avoid violating the Eighth Amendment: ”Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”63 In other words, what Furman established is that the sentencer in a capital case cannot have “unbridled discretion” in sentencing a defendant.64
IV.
Given that the common practice in the states before Furman was to give to the jury the discretion to impose a life or death sentence, Furman had the practical effect of “str[iking] down virtually every death penalty law nationwide,”65 and creating a de facto moratorium on executions.66 In fact, “[w]hen the Supreme Court decided Furman in 1972, almost everyone—including the Justices themselves—believed that America had seen its last execution.”67 But after Furman, the prior
To avoid arbitrariness and comply with the Eighth Amendment as interpreted in Furman, states experimented. Some states changed their capital sentencing schemes after Furman to allow the trial judge to make the ultimate life-or-death decision.70 Many other states enacted mandatory statutes, which outlined a specific category of crimes for which the death penalty was the required sentence.71 The rationale behind these statutes was an obvious response to Furman‘s concern about arbitrariness and discrimination: If every defendant who committed a capital offense was subject to death, there would be no discrimination or arbitrariness in the sentencing process. Conviction would invariably equal death.72
Still other states took a different approach. To rationally narrow the crimes for which death was a possibility, states began to adopt more specific statutes under which a defendant would be eligible for a death sentence only if he was found to have committed, for example, not just a homicide, but a type of homicide that the statute identified as especially egregious and deserving of harsh punishment.73 Thus, the post-Furman capital sentencing statutes often included lists of aggravating factors intended to narrow the scope of death eligible crimes and defendants.74
V.
By the bicentennial, this period of legislative reaction had resulted in cases ripe for Supreme Court consideration. On July 2, 1976, the Supreme Court decided four cases that addressed the constitutional adequacy of several states’ attempts to comply with Furman. The most famous of these so-called “July 2nd cases” was, of course, Gregg v. Georgia.75 At issue in Gregg was the constitutionality of Georgia‘s capital sentencing scheme that was structurally similar to that which had been struck down in Furman,76 but which attempted to address Furman‘s requirements by “provid[ing] some sort of criteria to guide the jury‘s discretion in determining whether to impose death.”77 The Supreme Court upheld Georgia‘s new capital sentencing scheme and clarified that its holding in Furman was limited to the imposition of the death penalty in the specific Georgia and Texas cases at issue in Furman under the then-existing statutes.78 In
Of equal importance to Gregg‘s validation of state approaches involving what some have called “guided discretion” was the Supreme Court‘s rejection of mandatory statutes as an answer to its concerns over capricious imposition of the death penalty. In Woodson v. North Carolina,82 the Court reviewed the death sentences of four defendants who had been convicted of first degree murder resulting from their participation in an armed robbery. North Carolina was one of the states that amended their capital sentencing schemes after Furman to make death the mandatory sentence for eligible crimes. After “sketching the history of mandatory death penalty statutes in the United States,” the Court noted that its findings “reveal[] that the practice of sentencing to death all persons convicted of a particular offense has been rejected as unduly harsh and unworkably rigid.”83 And, the Court observed, “a mandatory death penalty statute ... does not fulfill Furman‘s basic requirement by replacing arbitrary and wanton jury discretion with objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death.”84
Woodson then observed that an additional “constitutional shortcoming of the North Carolina statute is its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.”85 The Court explained:
[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.86
After Woodson, it was widely believed that states could not specify by statute a list of crimes for which conviction would automatically result in a death sentence. Although the Supreme Court had supposedly left open that the murder of a prison
And in Jurek v. Texas,90 the Supreme Court reviewed the conviction of a Texas man sentenced to death for murder. The Texas statute at issue required the sentencing jury to consider the aggravating factors during sentencing, but did not allow consideration of mitigating factors. The Supreme Court invalidated that statute, holding that “in order to meet the requirement of the Eighth and Fourteenth Amendments, a capital-sentencing system must allow the sentencing authority to consider mitigating circumstances.”91 “A jury,” the Court reasoned, “must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.”92
In the final July 2nd case, the Supreme Court upheld the capital sentencing schemes that were amended after Furman to switch from jury to judge sentencing in capital cases from an Eighth Amendment challenge. In Proffitt v. Florida,93 the Court recognized “that jury sentencing in a capital case can perform an important societal function,” but nevertheless explained that the Court had “never suggested that jury sentencing is constitutionally required.”94 Of course, Proffitt was decided only in 1976, less than a decade after the Court had first held that the Sixth Amendment right to a jury applied against the states.95 And Proffitt never examined that there had not been much basis as of 1976 to ponder the question of whether a defendant had a right to have a jury make the final decision as to death, given the overwhelming historical prevalence of jury sentencing authority in that most sensitive of realms.
What followed Gregg and the other July 2nd cases was another wave of new death penalty statutes that confirmed that Furman and its progeny had unsettled tradition.96 Perhaps unsurprisingly, the complexity of the procedures necessary for states to implement the death penalty in a manner consistent with the Supreme Court‘s evolving case law raised new questions regarding the respective roles of judge and jury.97 One consequence of the Supreme Court‘s jurisprudence was clear, which is that it was no longer practicable for a capital defendant to be subject to a singular proceeding after which his guilt and punishment were determined simulta-
In reaction to the very cases that gave capital defendants constitutional protections against arbitrary and capricious imposition of the death penalty, some states adopted statutes that left them exposed to a new fate that was historically unusual in American history—the possibility of being executed without a jury unanimously saying that should happen. That is, as states adopted statutes that provided specific processes to meet Furman‘s core concerns, some of them increasingly shifted the locus of authority for capital sentencing determinations away from juries and toward judges.103 In effect then, Furman and the July 2nd cases set in motion a historically unprecedented period in which sentencing in capital cases was distinct from the conviction phase, in which judges in some states came to have a more critical role, and in which it was not even clear that juries had to have a role at all.104
When the U.S. Supreme Court reviewed these capital sentencing statutes that state legislatures enacted or revised in the wake of Furman and Gregg, the Court also addressed cases focused on defendants’ rights under the Sixth Amendment. More specifically, after the states enacted statutory approaches to satisfy Furman‘s key mandates, the U.S. Supreme Court issued a number of decisions addressing various issues regarding the respective roles of judges and juries in capital sentencing.
In Spaziano v. Florida,105 for example, the Supreme Court reviewed Florida‘s capital sentencing scheme, which allowed the sentencing judge to override a jury‘s recommendation of life imprisonment and impose a death sentence.106 This is precisely what happened at Spaziano‘s sentencing,
This Court, of course, has recognized that a capital proceeding in many respects resembles a trial on the issue of guilt or innocence. Because the “embarrassment, expense and ordeal . . . faced by a defendant at the penalty phase of a . . . capital murder trial . . . are at least equivalent to that faced by any defendant at the guilt phase of a criminal trial,” the Court has concluded that the Double Jeopardy Clause bars the State from making repeated efforts to persuade a sentencer to impose the death penalty. The fact that a capital sentencing is like a trial in the respects significant to the Double Jeopardy Clause, however, does not mean that it is like a trial in respects significant to the Sixth Amendment‘s guarantee of a jury trial. The Court‘s concern in Bullington was with the risk that the State, with all its resources, would wear a defendant down, thereby leading to an erroneously imposed death penalty. There is no similar danger involved in denying a defendant a jury trial on the sentencing issue of life or death. The sentencer, whether judge or jury, has a constitutional obligation to evaluate the unique circumstances of the individual defendant and the sentencer‘s decision for life is final. More important, despite its unique aspects, a capital sentencing proceeding involves the same fundamental issue involved in any other sentencing proceeding—a determination of the appropriate punishment to be imposed on an individual. The Sixth Amendment never has been thought to guarantee a right to a jury determination of that issue.110
The Court reaffirmed and extended its holding in Spaziano in several later cases, many of which also involved Florida‘s capital sentencing scheme. In Hildwin v. Florida,112 for example—“a per curiam decision without briefing, argument, or plenary consideration”113—the Court held that “the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.”114 Using Spaziano as a springboard, the Court reasoned that because “the Sixth Amendment permits a judge to impose a sentence of death when the jury recommends life imprisonment, . . . it follows that it does not forbid the judge to make the written findings that authorize imposition of a death sentence when the jury unanimously recommends a death sentence.”115
And, in Clemons v. Mississippi,116 the U.S. Supreme Court reaffirmed its view that the Constitution did not require jury sentencing or that a jury make all factual findings that are necessary to sentence a defendant to death.117 The Court also explained in Clemons that a state appellate court may uphold a death sentence that is based in part on an invalid statutory aggravating factor—or, as I refer to it for the sake of simplicity and functional clarity, a “death eligibility factor“—as long as that error is harmless because, for example, a different death eligibility factor existed.118
The Supreme Court again rejected a defendant‘s argument that the Constitution requires jury sentencing in capital cases in Walton v. Arizona.119 There, a capital defendant challenged Arizona‘s capital sentencing scheme under both the Sixth and Eighth Amendments. The Court first rejected Walton‘s argument that Arizona‘s capital sentencing scheme, which required the trial judge to make all factual findings involved in capital sentencing and gave the jury no advisory role, was sufficiently distinct from the Florida scheme the Court had upheld in Spaziano and Hildwin scheme, which did give the jury at least an advisory role, to make the Arizona statute more vulnerable under the Sixth Amendment.120 The Court was not troubled by any lesser role for the jury. Instead, relying on Spaziano, Hildwin, and Clemons, the Court then held “that
Finally, in Harris v. Alabama,123 the Supreme Court held that a capital sentencing scheme that “vests capital sentencing authority in the trial judge, but requires the judge to consider an advisory jury verdict” was not unconstitutional.124 The Court noted the similarities between the Florida and Alabama schemes, and observed that the key difference was that the Florida scheme which it had previously upheld in the cases discussed above, unlike its Alabama counterpart, required a trial judge to “give ‘great weight’ to the jury‘s recommendation and . . . not override the advisory verdict of life unless ‘the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.’ ”125 Harris argued that the failure of Alabama‘s statute to provide similar guidelines for considering the jury‘s advisory verdict rendered the statute unconstitutional.126 But the Court disagreed: “The Constitution permits the trial judge, acting alone, to im-
pose a capital sentence. It is thus not offended when a State further requires the sentencing judge to consider a jury‘s recommendation and trusts the judge to give it the proper weight.”127
* * *
In sum, as the law stood at the turn of the twentieth century, the Supreme Court itself held that jury sentencing was not required in capital cases, even though jury sentencing in death penalty cases had been predominant throughout our nation‘s history before Furman128 and continued to be so.129 But, the Supreme Court had placed some limits on death sentences, such as holding mandatory death sentences unconstitutional and requiring that the sentencer consider mitigating factors.130 And, the Supreme Court itself had recognized that its own jurisprudence had essentially required at least two different stages within a case if a state was to impose the death penalty consistent with the Constitution. To address the requirement of Furman that capital sentencing discretion be narrowed to help avoid arbitrary results, there must first be a phase that the Supreme Court has at different times called the “definition stage”131 and the “eligibility phase,”132 the latter of which I adopt as the more appropriate term. I refer to it as
ticulates what they are, and distinguishes them from the broader use of an aggravating circumstance in the next required phase.137 Although having their origins in Furman‘s mandate that the circumstances in which the death penalty be imposed be narrowed, death eligibility factors have proliferated.138 In Delaware, for example, there are now twenty-two circumstances that can make a defendant death eligible.139
That next phase, which has been referred to among other things as the “weighing phase,” the “selection phase,” or in my view, the “ultimate sentencing phase,” is when there is an individualized determination of the sentence for the defendant.140 This phase was required because the Supreme Court made clear that even if a state had narrowed the circumstances for which death was the authorized punishment to address the concerns raised in Furman, it still could not make death a mandatory sentence.141 Instead, Furman and the July 2nd cases taken together mandated that a sentencing phase occur
With the intricacy of this two-stage process arose further questions about the respective role of judge and jury in the sentencing phase process, questions that came to the fore early in this century in an important non-capital case, which I now discuss.
VI.
In 2000, the Supreme Court decided Apprendi, which marked a major shift in the U.S. Supreme Court‘s Sixth Amendment jurisprudence and created the momentum behind the line of cases leading directly to Hurst. The relevant facts of that non-death penalty case were simple. Apprendi, who was white, had pled guilty to multiple felonies arising from an event in which he fired several bullets into the home of a black family.145 After holding an evidentiary hearing on Apprendi‘s intent, the trial judge concluded that Apprendi had been motivated by racial bias.146 Under New Jersey law, if a defendant “acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity,” he could be deemed to have committed a “hate crime” and be eligible for a longer sentence.147 Thus, the trial judge found that the “hate crime” sentencing enhancement applied, and the judge increased Apprendi‘s sentence accordingly.148 The issue the U.S. Supreme Court faced in Apprendi was whether a judge, as opposed to a jury, could find facts that increased the defendant‘s maximum sentence.149 The Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
Shortly after Apprendi, the Supreme Court decided Ring v. Arizona,153 which applied Apprendi for the first time to the death penalty sentencing process.154 Ring was a case in which the Court was again faced with the constitutionality of the Arizona capital sentencing scheme that it had upheld against both Sixth and Eighth Amendment challenges in Walton.155 Ring confirmed that Apprendi‘s rule extends to the death context, reasoning that “[c]apital defendants, no less than noncapital defendants . . . , are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.”156 In other words, the Court explained, “[i]f a State makes an increase in a defendant‘s authorized punishment
contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt.”157 And then, recognizing that Walton and Apprendi were irreconcilable, Ring “overrule[d] Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.”158 The Court held that “[b]ecause Arizona‘s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ the Sixth Amendment requires that they be found by a jury.”159
VII.
A.
Ring occasioned one of the last major changes to Delaware‘s own death penalty statute, and is the logical point at which to explain what our current statute provides. As of Ring, the Delaware statute had last been amended in relevant part in 1991 and provided that the jury‘s findings as to whether any death eligibility factors existed and whether the aggravating factors outweighed the mitigating factors were just advisory.160 The sentencing judge had the final say in both the eligibility and ultimate sentencing stages.161 Delaware‘s
In Ring itself, the U.S. Supreme Court took note that Delaware‘s then-existing capital sentencing scheme was different from the Arizona statute it was addressing. The Ring Court explained that Delaware was one of four “hybrid systems, in which the jury renders an advisory verdict but the judge makes the ultimate sentencing determinations.”165 But Ring seemed to make Delaware‘s statute vulnerable because the jury‘s determination as to eligibility was not necessary, just advisory. Thus, the General Assembly amended Delaware‘s death penalty statute,
One year after Ring and the accompanying amendment to
Under the current version of
The jury‘s answers to the two questions in
defendant is death eligible and the process moves on to the ultimate sentencing phase.174
Unlike the eligibility phase, under
As discussed, the jury‘s finding as to whether the aggravating circumstances outweigh the mitigating circumstances “shall not be binding upon the Court,” but “shall be given such consideration as deemed appropriate by the Court.”178 The trial judge thus has the final say in deciding whether a capital defendant is sentenced to death and need not give any particular weight to the jury‘s view.
After
Once the jury determines that a statutory aggravating factor exists, the defendant becomes death eligible. Although a judge cannot sentence a defendant to death without finding that the aggravating factors outweigh the mitigating factors, it is not that determination that increases the maximum punishment. Rather, the maximum punishment is increased by the finding of the statutory aggravator [i.e., death eligibility factor]. At that point a judge can sentence a defendant to death, but only if the judge finds that the aggravating factors outweigh the mitigating factors. Therefore, the weighing of aggravating circumstances against mitigating circumstances does not increase the punishment. Rather, it ensures that the punishment imposed is appropriate and proportional.180
Brice also considered the ultimate sentencing phase of the Delaware statute, which requires the sentencing judge to make her own determination of whether the aggravating circumstances outweigh the mitigating circumstances, a decision that is informed by a jury vote but not dictated by it unless the jury majority recommends a life sentence. In other words, this Court examined the reality that the sentencing judge could rely on aggravating factors in addition to whatever death eligibility factors were found by the jury. These factors—which I have defined as aggravating factors for clarity—need not have been found by the jury. But, the Court did not view that feature of Delaware‘s capital sentencing scheme as problematic: ”Ring does not . . . require that the jury find every fact relied upon by the sentencing judge in the imposition of the sentence.”181 Thus, as long as the jury has already found one death eligibility factor as required by Ring, the reality that a sentencing judge under our statute may consider aggravating factors that the jury does not find beyond a reasonable doubt “does not increase the maximum penalty that a defendant can receive.”182 In other words, Brice embraced the reading of Ring summarized by Justice Scalia in his concurrence in that case, in which he stated:
What today‘s decision says is that the jury must find the existence of the fact that an aggravating factor [i.e., a death eligibility] existed. Those States that leave the ultimate life-or-death decision to the judge may continue to do so—by requiring a prior jury finding of [an] aggravating factor [i.e., a death eligibility factor] in the sentencing phase or, more simply, by placing the aggravating-factor determination [i.e., death eligibility determination] (where it logically belongs anyway) in the guilt phase.183
VIII.
This lengthy tour has now arrived at Hurst, the new decision of the U.S. Su-
As is now widely known, Hurst held that Florida‘s capital sentencing scheme was unconstitutional.184 The Florida scheme evaluated in Hurst differed from Delaware‘s in three material ways. First, Florida‘s statute charged the jury with deciding by a majority vote both (1) whether a death eligibility factor exists; and (2) whether the aggravating circumstances outweigh the mitigating circumstances. Second, Florida‘s statute did not require the jury to decide whether a death eligibility factor exists beyond a reasonable doubt. And third, a jury under Florida‘s statute made “an ‘advisory sentence’ of life or death without specifying the factual basis of its recommendation.”185 In Delaware, by contrast, a jury must find a death eligibility factor unanimously and beyond a reasonable doubt. The jury in Delaware is then charged with making a non-unanimous decision of whether the aggravating factors outweigh the mitigating factors,
under a preponderance of the evidence standard. That recommendation, like in Florida, is advisory,186 but unlike Florida, does not ask jurors to specifically vote whether they believe death is the appropriate punishment. Despite these differences, there are important similarities between the capital sentencing scheme struck down in Hurst and
In finding that the Florida capital sentencing scheme was unconstitutional, the Supreme Court focused on the fact that it required the judge to find facts because the jury‘s “recommendation” was just that—a recommendation that was advisory and to which the judge was not bound. The Court explained that “the Florida sentencing statute does not make a defendant eligible for death until ‘findings by the court that such person shall be punished by death.’ ”188 That statute was unconstitutional, the Court explained, because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.”189
In explaining its understanding of Ring, the Hurst Court observed that “Ring‘s death sentence . . . violated his right to have a jury find the facts behind his punishment” because “[h]ad Ring‘s judge not
As with Timothy Ring, the maximum punishment Timothy Hurst could have received without any judge-made findings was life in prison without parole. As with Ring, a judge increased Hurst‘s authorized punishment based on her own factfinding. In light of Ring, we hold that Hurst‘s sentence violates the Sixth Amendment.191
In holding that Florida‘s capital sentencing scheme was unconstitutional, Hurst expressly overruled its prior decisions addressing Florida‘s death penalty statute in Spaziano and Hildwin “in relevant part”192—both cases in which the Court had rejected a defendant‘s argument that jury sentencing is constitutionally required in capital cases: ”Spaziano and Hildwin summarized earlier precedent to conclude that the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury. Their conclusion was wrong, and irreconcilable with Apprendi.”193 This was a move that some Justices had been advocating for some time.194 But, by overruling those cases only “in relevant part,” the Court left open the notion that they were problematic only insofar as Florida had not required a jury to make every fact finding required to render the defendant eligible for death. The use of the term “authorizing” could be read as supporting that view, although the term could
also be seen as ambiguous and functionally indistinct from the term “necessary.”
That is, the meaning of Hurst is contestable because it uses language at critical points in a way that is not necessarily consistent. For example, there is a portion of Hurst that seems to be a vanilla application of Ring. The Court explained that “[t]he analysis the Ring Court applied to Arizona‘s sentencing scheme applies equally to Florida‘s.”195 But, there are other portions of Hurst which use broader, or at least less narrowly cabined language, and I understand these portions to be those which largely motivate the questions posed to us and the contesting positions of the parties. For example, the Court couched its holding in broader language, explaining that a jury must “find each fact necessary to impose a sentence of death.”196
The Supreme Court‘s use of the term “necessary” in Hurst also has relevance because the author of Hurst, Justice Sotomayor, had earlier issued a dissenting opinion from a denial of certiorari, in which she wrote that the “required finding that the aggravating factors of a defendant‘s crime outweigh the mitigating factors is . . . necessary to impose the death penalty.”197 In other words, if by “necessary” in Hurst, the Supreme Court in fact meant what it said in an unqualified way, these factors would include the findings that its own jurisprudence mandate must be made at the ultimate sentencing phase before a defendant can be given a death sentence. If these necessary findings must
Notably, Hurst was not a unanimous decision. It generated a concurrence from Justice Breyer, who is a passionate defender of judicial sentencing discretion in the context of non-capital cases, and dissented in both Apprendi and Ring.198 At the same time, Justice Breyer takes the position, which he anchors in the Eighth Amendment, that no death penalty sentence can be imposed without “a jury, not a judge, mak[ing] the decision to sentence a defendant to death.”199 “[T]he danger of unwarranted imposition of the [death] penalty,” Justice Breyer believes, “cannot be avoided unless ‘the decision to impose the death penalty is made by a jury rather than by a single governmental official.’ ”200 “Even in jurisdictions where judges are selected directly by the people, the jury remains uniquely capable of determining whether, given the community‘s views, capital punishment is appropriate in the particular case at hand.”201 One can summarize Justice Breyer‘s position this way. He believes that it is so vital to the fairness, regularity, and non-cruelty of any administration of the death penalty that it must be preceded by a unanimous determination by a jury that the defendant should die. He believes that without a cross-section of the community unanimously agreeing a defendant should die, the
resulting penalty is cruel and unusual, because it so drastically departs from the American tradition. As I note later, this sounds like an oblique way of saying that there is a fundamental right to have a jury say you should die before the state can execute you.
Finally, Justice Alito dissented in Hurst. Most importantly for present purposes, Justice Alito called for reconsideration of Ring because he believes that there is no Sixth Amendment right to have a jury decide any fact other than those necessary to guilt.202 Justice Alito then explained that “even if Ring is assumed to be correct,” he would not extend it to Florida‘s capital sentencing scheme because of the differences between Florida‘s and Arizona‘s at the time of Ring.203
After the Supreme Court decided Hurst—and after we accepted the certified question before us—the Court vacated three Alabama death penalty convictions “in light of Hurst.”204 Although these orders provide no extensive guidance on why or how Hurst affected the Alabama convictions, the obvious connection between these cases and Hurst is that they collectively involve two of the three capital sentencing schemes that permitted a judge to override a jury‘s recommendation of a life sentence before Hurst—those of Florida and Alabama.205 The third such scheme is our own.
A.
The five certified questions are:
- Under the Sixth Amendment to the United States Constitution, may a sentencing judge in a capital jury proceeding, independent of the jury, find the existence of “any aggravating circumstance,” statutory or non-statutory, that has been alleged by the State for weighing in the selection phase of a capital sentencing proceeding?
- If the finding of the existence of “any aggravating circumstance,” statutory or non-statutory, that has been alleged by the State for weighing in the selection phase of a capital sentencing proceeding must be made by a jury, must the jury make the finding unanimously and beyond a reasonable doubt to comport with federal constitutional standards?
- Does the Sixth Amendment to the United States Constitution require a jury, not a sentencing judge, to find that the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist because, under
11 Del. C. § 4209 , this is the critical finding upon which the sentencing judge “shall impose a sentence of death“? - If the finding that the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist must be made by a jury, must the jury make that finding unanimously and beyond a reasonable doubt to comport with federal constitutional standards?
- If any procedure in
11 Del. C. § 4209 ‘s capital sentencing scheme does not comport with federal constitutional standards, can the provision for such be severed from the remainder of11 Del. C. § 4209 , and the Court proceed with instructions to the jury that comport with federal constitutional standards?
Fundamentally, the first four questions may be summarized this way: Must any death sentence be preceded by a unanimous jury verdict concluding that after considering all the relevant aggravating and mitigating factors, the defendant should suffer execution as his punishment, rather than the comparatively more merciful option of a lengthy prison sentence? And, if so, must the jury make that decision beyond a reasonable doubt?
The advocates before us take dividing positions on these questions and do so with clarity and skill, and with a close attention to the precedent. From the State‘s perspective, the answer to the question above is no. The State‘s well-written and well-argued position is that Hurst must be read contextually and narrowly, and that its use of the term “necessary” cannot be divorced from other language in the opinion relying on Ring and Apprendi. By “necessary,” says the State, Hurst refers only to those fact findings necessary to make the defendant statutorily eligible to receive a death sentence. That is, in the parlance I use, the State argues that the jury need only determine unanimously and beyond a reasonable doubt that a death eligibility factor exists. Beyond that point, any role for the jury is entirely optional, and a state can in fact dispense altogether with a role for the jury, and allow a judge to use his own reasoned discretion to weigh the aggravating and mitigating factors and decide whether to impose the death penalty. Put
By contrast, counsel for Rauf (and several of the amicus curiae) view Hurst as going beyond Ring, and as standing for the proposition that if any finding of fact is necessary as a pre-condition to a death sentence, the Sixth Amendment requires that finding of fact to be made by a unanimous jury. Rauf argues from the plain language of the Delaware statute that findings of fact that go beyond the existence of guilt and of a death eligibility factor are “necessary” for a death sentence to be imposed in Delaware. Absent factual findings that the aggravating factors outweigh the mitigating factors, a defendant must be given a life sentence under the Delaware statute. Thus, these sentencing stage findings are literally “necessary to impose a death sentence.”206 Rauf‘s argument builds on other U.S. Supreme Court case law,
which prevents states from having a statute whereby a death sentence is the automatic consequence of a guilty verdict, and which requires states to have a sentencing phase in which all mitigating factors must be rationally considered and after which the option of giving a non-capital sentence must exist.
Rauf is joined by amicus curiae, who echo his arguments, but who also make a more fundamental argument, which is that there is no more fundamentally important role for a jury fairly drawn from the community than determining whether a defendant should live or die.207 They read Hurst as recognizing a more essential consideration that has been obscured in the complexity of the post-Furman world, which is that the Sixth Amendment right to a jury has perhaps its most powerful importance when the question is whether the defendant should live or die.
B.
Against this backdrop of
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be
I focus here on the question of who—jury or judge—may make the determination whether a defendant should receive a death sentence or not because I believe it is inarguable that the required determination in all contexts where the sentencing authority can give a defendant death or life involves factual determinations. That is clearly so under our own statute, which plainly requires that a specific finding be made before a death sentence can be issued.209 That finding is whether “the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist.”210 Our prior decisions have often noted that sentencing decisions, including those in the death penalty context, involve an exercise of discretion based on a weighing of facts.211 In doing so, we broke no ground, but simply recognized an obvious reality reflected broadly in American jurisprudence that the weighing of aggravating and mitigating factors is “a clear factfinding directive to which there is no exception.”212 Thus, the question in this context is not whether factual determinations are involved in the weighing phase of capital
sentencing, but whether the Sixth Amendment requires those factual judgments to be made by a jury.
In one sense, the answer to the certified questions could be simple. If when Hurst said “necessary,” it meant that, then Delaware‘s death penalty statute is unconstitutional. Under our statute the findings required to make a defendant “eligible” for the death penalty are not sufficient to enable him to be sentenced to death. Rather, it is obvious that
In concluding that Hurst requires the invalidation of our state‘s approach to the death penalty, I do not wish to elide the potency of the other side of the question. Hurst can be read as having used the loose language of necessity to describe only what is necessary to make a defendant death eligible, especially because the statute at issue in Hurst failed on that narrower basis, which Delaware‘s does not. But, I am reluctant to conclude that the Supreme Court was unaware of the implications of requiring “a jury, not a judge, to find each fact necessary to impose a sentence of death.”213 If those words mean what they say, they extend the role of a death penalty jury beyond the question of eligibility.
That byproduct is that the Furman line of U.S. Supreme Court precedent has been a causal factor in impelling a small number of states (of which Delaware is one) to adopt a death penalty system that would have been fundamentally alien to the founding generation, a system under which a defendant can be executed even if a unanimous jury does not believe that is the correct penalty.214 What has emerged is a system whereby there is a strange admixture of the role of judge and jury in this most sensitive of areas—an admixture that allows a defendant to go to his death with-
out a jury of his peers unanimously concluding that he should do so. Although perhaps not compelled to do so by the formal logic of Hurst,215 I am persuaded that it is not tenable under the broader logic of the case, and a consideration of related provisions of the Constitution, including the Eighth Amendment, to pretend any longer that this admixture is consistent with the fundamental guarantee of a jury trial as it was understood throughout most of our history—one in which “[t]he Founders viewed juries as so fundamental to the democratic experience that the right to a jury in criminal trials is the only right expressly included twice in the Constitution”216—and as most states still under-
In so finding, I acknowledge the argument, made powerfully by Justice Scalia and others, that Furman unsettled the traditional practice and that the deviation from the traditional practice that a jury simultaneously decided guilt and punishment resulted from the decisions of three justices in Furman that said that the death penalty could be imposed only if the sentence is imposed in some non-arbitrary way.218 In Furman and the decisions that followed it, the Supreme Court said that states could not find that certain crimes, such as intentional murder, were so heinous that a verdict of guilt automatically resulted in a death sentence.219 Instead, each defendant, regardless of whether he committed an intentional murder, had a right to have the sentencing authority consider all mitigating factors and weigh them against the aggravating factors.220 And, of course, the full bite of Strickland v. Washington221 enforced the duty of counsel to present those factors with effectiveness. Not only that, to avoid arbitrariness, stat-
utes were revised to include procedures such as the proportionality review as a way to ensure that capital punishment was meted out non-capriciously.222 It was these and other mandates that states like Delaware reacted to in shaping their current death penalty statutes. Even my long earlier account of the evolution of past death penalty jurisprudence slights the complexity of the law in this area. For present purposes, what must be acknowledged is that much effort has been expended by many states since Furman, including by our own,223 to design procedures that complied with the intricate Supreme Court case law designed to ensure that capital sentences would only issue in conformity with the Constitution.
Obscured in the complexity of the Furman line of cases, however, was something fundamental: The overwhelming trend before 1972 was that a defendant was not sentenced to death without the support of a unanimous jury of the defendant‘s peers determining that was appropriate.224 Scholars225 and judges226 have set forth this
The authority of the jury to decide that the accused shall not be punished capitally is not limited to cases in which the court or the jury is of opinion that there are palliating or mitigating circumstances. But it extends to every case in which, upon a view of the whole evidence, the jury is of opinion that it would not be just or wise to impose capital punishment. How far considerations of age, sex, ignorance, illness, or intoxication, of human passion or weakness, of sympathy or clemency, or the irrevocability of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever, should be allowed weight in deciding the question whether the accused should or should not be capitally punished, is committed by the act of congress to the sound discretion of the jury, and of the jury alone.228
And, as noted above,229 the Supreme Court in 1968 described the jury‘s role in capital cases as “express[ing] the conscience of the community on the ultimate question of life or death.”230
That juries historically acted as the sentencing authorities in capital cases is not an anomaly. Rather, it makes sense. After all, it was the jury‘s role as the conscience of the community on issues of proportionality and mercy that was recognized as making its role in capital sentencing so vital.231 As Declaration of Independence signee and future federal judge Francis Hopkinson wrote in 1786:
[The authority to sentence] can no where be lodged so safely as with the jury who find the fact. The proportion of punishment, equitably due according to the nature of the offence, is not a question involved in the technical subtleties of the law; but arises from the particular circumstances of the case, . . . and an honest, impartial, and conscientious jury, are as competent to this purpose, as the most profound judge. They will necessarily have heard the state of the whole matter, with the arguments for the prosecution, and in behalf of the prisoner; and being a temporary body, accidentally brought together, and impaneled for the occasion, are more likely to do substantial justice, than a judge who is so hackneyed in criminal prosecutions . . . .232
Given the significance that jury sentencing has historically had, then, it should come as no surprise that “jury sentencing is . . . the norm for capital cases.”233
context, appellate courts give enormous deference to a judge‘s or jury‘s sentencing determination precisely because of the factual nature of the issues involved in sentencing generally and the inescapable requirement for the sentencing authority to apply its discretionary sense of conscience and mercy to the case at hand.237
In my view, Hurst has starkly revealed a perverse result of some of the post-Furman efforts to adopt capital sentencing schemes that are constitutionally satisfactory, which is that perhaps the most fundamental protection of the Sixth Amendment has been dropped from the panoply of rights accorded to the defendant—the right to be put to death only if twelve members of his community agree that should happen.238 There are, of course, reasons why this fundamental issue has been elided. They include the reality that for most crimes, judges make the key sentencing determination. Times have changed greatly since the founding, when prison sentences were rare, and with changing times has come a diminution (although by no means an elimination)239 of statutorily mandated sentences. Some cognitive dissonance can be caused by holding that, unlike other sentencing options, a sentence of death may only be issued con-
But if ever Emerson‘s famous maxim had purchase, it would be here. The Supreme Court has long said that “death is different.”240 Furman was based on that notion, and however Balkanized the five votes in Furman were, that case has remained part of our nation‘s jurisprudence for forty-four years.241 Many cases recognize that the Constitution‘s protections apply with special force to capital cases, because of their uniquely high stakes.242 No doubt there are Justices who have disclaimed any explicit reliance on the distinction between a case involving a potential for a death sentence and one involving only potential incarceration. Still, it is easy to say that the approach taken in, for example, Strickland cases—which suggest that what an attorney must do to be effective in a death penalty case involves greater effort than in a non-capital case243—
arises from the recognized principle that when what is at stake is of greater importance, what is a reasonable effort must be measured against that reality. Of course, that is another way in this context of taking into account that death is different, a point the Supreme Court has made by:
- Narrowing the class of crimes for which the death penalty may be imposed by holding that death may not be imposed for rape of an adult woman,244 kidnapping,245 murder where the defendant had not killed, attempted to kill, or intended to kill anyone,246 and rape of a child that does not result in the child‘s death;247
- Narrowing the class of defendants eligible for the death penalty by holding that the death penalty may not be imposed upon defendants who are insane,248 mentally retarded,249 or
minors;250 and - Continually explaining that capital sentencing requires special considerations and rules that are not applicable in non-capital sentencing, including special hearsay considerations,251 special consideration of mitigating aspects of a defendant‘s character,252 and mandatory consideration of lesser-included offenses.253
For present purposes, the precise reason why that inspires the differential approach is immaterial. The important thing is the undisputed reality that the Supreme Court often applies the protections of the Constitution differently to death penalty cases than to other criminal cases.254
This is not to say that close consideration of complex case law is not important. But, it is to say that when much of that case law has slighted one of the most central protections of the
the cursory rejection of the
[W]hen it comes to capital cases, there is no historical support for the line that Ring attempts to draw between factfinding to establish death eligibility, on the one hand, and the ultimate sentencing, or selection decision, on the other. There simply was no eighteenth-century practice that limited juries to a purely fact-finding role, while granting judges the ultimate power to choose a death sentence. To the contrary, in 1791—and indeed for more than a century thereafter—the unified nature of capital trials left the ultimate decision of life or death in the hands of juries.261
To my mind, the deeper logic of Apprendi, Ring, and Hurst cannot be confined neatly to the death eligibility stage of a capital case.262 That confinement can be
Likewise, I do not find convincing an attempt to draw fine lines between the role of the jury as a fact-finder and the role played by the sentencing authority. Since Furman, it has been understood that whatever authority is given the power to determine the sentence in a capital case must consider the relevant aggravating and mitigating factors, balance them, have an option to give life, and base any determination to give a death sentence on a determination that the aggravating factors outweigh those mitigating for the comparatively more merciful one.264 Not only does this involve a consideration of the facts, it results in a decision of existential fact: Whether the defendant should live or die. If U.S. Supreme Court jurisprudence has and therefore can turn on a determination that death is different,265 it is certainly appropriate to recognize that the decision to give death or life is the most important one that can be made in any criminal trial, and that the
As this discussion suggests, the intricacy of the judicially built regime for capital sentencing has contributed to legal arguments, and even judicial opinions, built on non-bearing foundations. Perhaps fearing that determining that the
Not only that, I cannot find in the text of the
At the same time, those who would stretch Ring and Hurst—including the defendant here—embrace arguments that also have a strained quality. These arguments ensnare states in their own efforts to comply in good faith with cases like Furman. Thus, because every state retains some role for the jury in the capital sentencing process, and because Supreme Court jurisprudence such as Woodson requires that any death sentence be premised upon a consideration of whether the aggravating factors outweigh those in mitigation, gotcha arguments with a somewhat artificial quality naturally arise.278 Seizing
I recognize that this type of jurisprudence serve-and-volley is to some extent endemic to our system of law, and its use of judicial review, and sometimes encourages judicial opinions that read like exercises in predicting the outcome of our political sporting contests. But, the death penalty context represents one in which our nation‘s Supreme Court is increasingly called on to build out the interior of an edifice
In deciding as I do, I therefore am reluctant to rest my answers on this kind of reasoning, because there is no predictable or principled way to choose between these approaches, which turn on irresolvable debates about what current or future Justices might think about the wisdom, meaning, and application of complex precedent to state legislative attempts to comply with the post-Furman mandates. Those who argue that a greater role for the jury is required do not want a full return to pre-Furman practices.283 Those who argue that the jury‘s role can stop short of capital sentencing itself contend that it would be unfair to the states to lard a jury sentencing requirement on top of judicially constructed death penalty requirements that were established only since the early 1970s.284
Instead of entering a guess-work world to which I am an outsider, I prefer to isolate the fundamental interests at stake. Accepting Furman, for all its fractures, as establishing that states cannot establish crimes for which death is the automatic sentence, and accepting Gregg and its progeny as establishing that any death sentence must be based on a rational consideration of the aggravating and mitigating factors and that there must be an option to give life, I also accept another reality of the case law, which is that the Supreme Court cases acknowledge what our history shows, which is that death is different.285 Under this line of cases, fact findings beyond eligibility are not optional; they must be made and are necessary. Rather than write more and more intricate judicial decisions parsing different kinds of fact findings, I conclude that Hurst is best read as restoring something basic that had been lost. At no time before Furman was it the general practice in the United States for someone to be put to death without a unanimous jury verdict calling for that final punishment. Overlooking the role juries played in capital sentencing before Furman and its progeny altered the status quo would be ignoring nearly 200 years of our nation‘s customs and traditions.
The U.S. Supreme Court has often drawn lines regarding when constitutional rights come into play and when they are transgressed.286 That has long been true in
***
Two other considerations are at play here. First, as members of the U.S. Supreme Court have eloquently written, disconnecting the right to a jury from the death penalty creates a strong argument that the resulting punishment is unusual,292 The reason for that is that the role of the jury was understood as especially critical when the punishment for a crime involved death, and that a defendant should be executed only if a jury of his peers unanimously determined that was so. It was understood that this would make giving a death sentence harder in some important circumstances, and that was why the jury right was important. By sending someone to the grave based on the determination, not of a unanimous jury, but simply of a judge, a state denies the defendant a fundamental procedural protection long part of the American tradition. The unanimous jury requirement also best assures that defendants are sent to death only when a representative sample of the community
Second, a requirement that a jury unanimously decide that a defendant should receive a death sentence does not mean that there can be no role for the judge. Rather, it would remain constitutional for states to provide a meaningful role for the trial judge in reviewing any death sentence recommendation made by a jury and giving the trial judge the option to give a more merciful sentence if she believed that was justified.294 As with any other case, traditional motions addressed to the jury‘s determinations could be addressed to the trial judge.
In sum, I find that no death sentence can be given unless that sentence is first determined to be appropriate by a unanimous jury, properly charged with weighing the aggravating and mitigating factors for itself.
C.
Before concluding, I must also address two specific issues posed by the first four certified questions before us.295 The first
Indeed, the only anomaly to the tradition of the unanimous jury verdict in Delaware is the recent one introduced into our own death penalty statute, an innovation expressly intended to bypass the safeguard that a unanimous jury requirement provides against the imposition of the ultimate punishment of death.299 If Hurst means what it says, then the finding required to be made for the imposition of a death sentence must not only be made by a jury, it must be made by a unanimous jury.300
As I have discussed, the jury‘s role in the administration of the death penalty was considered essential from the inception of our Republic. Part of the protective armor the right gave to a defendant against unwarranted imposition of the death penalty was not just that a jury be unanimously convinced that the death penalty was appropriate, but that the jury had to have an extremely high level of confidence that the ultimate punishment should be imposed. The beyond a reasonable doubt standard employed throughout our history in criminal proceedings reflects the importance our society places on ensuring that criminal punishment is not imposed lightly.301 When juries found defendants not guilty at all when any kind of murder or serious felony resulted in a mandatory death sentence, or guilty of a lesser degree of murder because first degree murder carried mandatory death sentence when degrees of murder came in to temper that feature of the law, the beyond a reasonable doubt standard was, along with the unanimity requirement, a critical feature in ensuring that no one was executed unless the jury was highly confident that that was the equitable result. To wit, because for much of our history death was the mandatory result of conviction, the beyond a reasonable doubt standard acted as a safeguard in punishment too, not just conviction.302
There is no circumstance in which it is more critical that a jury act with the historically required confidence than when it is determining whether a defendant should live or die. If, as a majority of us have
HOLLAND, Justice, concurring in the Majority per curiam, with whom Chief Justice STRINE and Justice SEITZ join:
The State has charged the Defendant, Benjamin Rauf (“Rauf“) by indictment with one count of First Degree Intentional Murder, one count of First Degree Felony Murder, Possession of a Firearm During those Felonies and First Degree Robbery. The State has expressed its intention to seek the penalty of death in the event Rauf is convicted on either of the First Degree Murder counts. On January 12, 2016, the United States Supreme Court held in Hurst v. Florida,1 that Florida‘s capital sentencing scheme was unconstitutional because “[t]he
Question One
Under the
The answer to question one is no. In Hurst, the United States Supreme Court held that: “The
In Hurst, the Supreme Court stated: “In Ring, we concluded that Arizona‘s capital sentencing scheme violated Apprendi‘s rule because the State allowed a judge to find the facts necessary to sentence a defendant the death.”8 The relevant inquiry in Hurst, as in Ring, was what maximum sentence the defendant could receive in the absence of judicial fact-finding. The United States Supreme Court answered that inquiry, as follows:
As with Timothy Ring, the maximum punishment Timothy Hurst could have received without any judge-made findings was life in prison without parole. As with Ring, a judge increased Hurst‘s authorized punishment based on her own factfinding. In light of Ring, we hold that Hurst‘s sentence violates the
Sixth Amendment .9
The Florida sentencing statute at issue in Hurst did “not make a defendant eligible for death until ‘findings by the court that such person shall be punished by death.’ ”10 The holding in Hurst means that when a state statute requires a trial judge, instead of a jury, to make factual findings that are necessary before a death sentence can be imposed, the
In Kansas v. Carr11 the United States Supreme Court held that the finding that aggravating circumstances exist is without question a “purely factual determination.”12 Thus, finding the existence of aggravating circumstances is the functional equivalent of a criminal element in support of the ultimate penalty. In Hurst, the United States Supreme Court overruled Spaziano v. Florida13 and Hildwin v. Florida14 and held sentencing schemes that “allow a sentencing judge to find an aggravating circumstance, independent of a jury‘s factfinding, that is necessary for imposition of the death penalty,” is impermissible under the
The Delaware death penalty statutes requires the State to give “[n]otice in writing of any aggravating circumstances [statutory and non-statutory] ... prior to the punishment hearing, and after the verdict on guilt.”16 The Delaware statute requires the judge to instruct the jury that “in
The Delaware statute does not require the jury to be instructed that the existence of non-statutory aggravating circumstances must be found unanimously and beyond a reasonable doubt. It does not require the jury to specifically identify any of the non-statutory aggravating circumstances that it found to exist. It also does not require the jury to report the affirmative and negative votes on any alleged non-statutory aggravating circumstance for which there was not unanimity.
After the jury finds at least one statutory aggravating circumstance, the defendant is death eligible. However, as with Timothy Ring and Timothy Hurst, the maximum punishment a defendant in Delaware can receive without any additional judge-made factual findings is life in prison.19 Under the current Delaware capital sentencing scheme, the judge alone, without knowledge of which, if any, non-statutory aggravating circumstances the jury found unanimously and beyond a reasonable doubt or otherwise, independently finds the existence of non-statutory aggravating circumstances.20 As with the capital sentencing schemes at issue in Ring and Hurst, a Delaware judge alone can increase a defendant‘s jury authorized punishment of life to a death sentence, based on her own additional factfinding of non-statutory aggravating circumstances. In light of Hurst‘s application of Ring, this violates the
Question Two
If the finding of the existence of “any aggravating circumstance,” statutory or non-statutory, that has been alleged by the State for weighing in the selection phase of a capital sentencing proceeding must be made by a jury, must the jury make the finding unanimously and beyond a reasonable doubt to comport with federal constitutional standards?
The answer to question two is yes. First, unanimous verdicts are an essential component of the
Question Three
Does the
The answer to question three is yes. This Court has recognized that the weighing determination in Delaware‘s statutory sentencing scheme is a factual finding necessary to impose a death sentence.29 “[A] judge cannot sentence a defendant to death without finding that the aggravating factors outweigh the mitigating factors....” 30 The relevant “maximum” sentence, for
As in Florida‘s statutory scheme that was held to be unconstitutional in Hurst, in Delaware, the judge alone “must find the facts that sufficient aggravating cir-
This Act will reverse the Delaware Supreme Court‘s judicial misinterpretation of Delaware‘s death penalty statute by repealing the Tedder standard adopted by the Supreme Court in [Garden v State]. It will clarify that it is and has been the intent of the General Assembly that while the sentencing judge must consider a jury‘s recommended finding on the question of whether the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist, he or she shall not be bound by the recommendation, but instead shall give it such weight as he or she deems appropriate under the circumstances present in a given case.33
In Hurst, the Supreme Court explained why Delaware‘s advisory system, in which the jury provides its non-binding recommendation whether or not the aggravating circumstances outweigh the mitigating circumstances, does not qualify as a “finding” by a jury for
tion of a death sentence, it violates
In 2003, in Brice v State,35 this Court held that the Delaware statute did not violate the
The only constitutional infirmity at issue in Ring and Hurst was the judicial determination of aggravating circumstances. On the other hand, Woodward v. Alabama40, involved a challenge to Alabama‘s capital punishment scheme, which allows judges to independently weigh aggravating and mitigating circumstances and impose death sentences, even where a jury has recommended a sentence of life in prison.41 Justice Sotomayor, dissenting from the denial
A defendant is eligible for the death penalty in Alabama only upon a specific factual finding that any aggravating factors outweigh the mitigating factors he has presented. The statutorily required finding that the aggravating factors of a defendant‘s crime outweigh the mitigating factors is therefore necessary to impose the death penalty. It is clear, then, that this factual finding exposes the defendant to a greater punishment than he would otherwise receive: death, as opposed to life without parole. Under Apprendi and Ring, a finding that has such an effect must be made by a jury.42
Justice Sotomayor was the author of Hurst, which held: “The
Question Four
If the finding that the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist must be made by a jury, must the jury make that finding unanimously and beyond a reasonable doubt to comport with federal constitutional standards?
The answer to question four is yes for the same reasons given in response to question two.
Question Five
If any procedure in
The answer to question five is no. The multiple infirmities in the Delaware death penalty statute, as a result of the United States Supreme Court‘s decision in Hurst, must be addressed by the General Assembly.
VALIHURA, Justice, concurring in part and dissenting in part as to the per curiam Opinion:
In light of the United States Supreme Court‘s decision in Hurst v. Florida1, this Court certified five questions from the Superior Court concerning the constitutionality of
- Under the
Sixth Amendment to the United States Constitution, may a sentencing judge in a capital jury proceeding, independent of the jury, find the existence of “any aggravating circumstance,” statutory or non-statutory, that has been alleged by theState for weighing in the selection phase of a capital sentencing proceeding? Answer: Negative. - If the finding of the existence of “any aggravating circumstance,” statutory or non-statutory, that has been alleged by the State for weighing in the selection phase of a capital sentencing proceeding must be made by a jury, must the jury make the finding unanimously and beyond a reasonable doubt to comport with federal constitutional standards? Answer: Negative as to unanimity (as a matter of federal law only, and not Delaware constitutional law, which requires unanimity); affirmative as to the burden of proof.
- Does the
Sixth Amendment to the United States Constitution require a jury, not a sentencing judge, to find that the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist because, under11 Del. C. § 4209 , this is the critical finding upon which the sentencing judge “shall impose a sentence of death“? Answer: Negative. - If the finding that the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist must be made by a jury, must the jury make that finding unanimously and beyond a reasonable doubt to comport with federal constitutional standards? Answer: Given my answer to Question 3, Question 4 is inapplicable.
- If any procedure in
11 Del. C. § 4209‘s capital sentencing scheme does not comport with federal constitutional standards, can the provision for such be severed from the remainder of11 Del. C. § 4209 , and the Court proceed with instructions to the jury that comport with federal constitutional standards? Answer: Negative.
I. CERTIFIED QUESTION 1, AS TO WHETHER A JUDGE, INDEPENDENT OF A JURY, MAY FIND AGGRAVATING CIRCUMSTANCES, SHOULD BE ANSWERED IN THE NEGATIVE
Question 1 should be answered in the negative. In Hurst, the United States Supreme Court concluded that Florida‘s capital sentencing statute did not comport with Ring v. Arizona2. Ring “required a jury to find every fact necessary to render [a defendant] eligible for the death penalty.”3 Because “Florida‘s sentencing scheme ... required the judge alone to find the existence of an aggravating circumstance,” the Supreme Court concluded that it was unconstitutional.4 The Hurst Court held that “[t]he
In my view,
There is no question that the Delaware statute permits the trial court to find aggravating factors that were never found by the jury.11 In addition to the plain language of the statute itself, this Court‘s decision in Ploof v. State12 which cited Ortiz v. State13 with approval, makes this clear.14 Because an aggravating circum-
The following hypothetical illustrates how
In my hypothetical, the court‘s three independent factual findings of aggravating circumstances were “necessary for imposition of the death penalty.”18 Absent factfinding by the court, the maximum punishment the defendant could receive under our statute is life, since the judge was not persuaded that the sole aggravating circumstance found by the jury outweighed the mitigating circumstances.19 The plain language of Hurst provides that “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.”20
Hurst is the next step in a progression of cases that have enhanced the jury‘s role in certain, but not all, aspects of capital cases. In 2000, the United States Su
Four years later, in a non-capital case, Blakely v. Washington,23 Justice Scalia, writing for the Majority, stated that the United States Supreme Court‘s “precedents make clear . . . that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”24 Blakely further stated that “[w]hen a judge inflicts punishment that the jury‘s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ and the judge exceeds his proper authority.”25
In Blakely, the defendant‘s plea supported a maximum sentence of 53 months. But the judge imposed a 90-month sentence after finding the defendant had acted with deliberate cruelty. The State of Washington contended that there was no Apprendi violation because the maximum sentence was not 53 months, but rather the 10-year maximum corresponding to a certain classification of felonies. Rejecting that contention, the Blakely Court stated that “[t]he ‘maximum sentence’ is no more 10 years here than it was 20 years in Apprendi (because that is what the judge could have imposed upon finding a hate crime) or death in Ring (because that is what the judge could have imposed upon finding an aggravator).”26
In 2013, in Alleyne v. United States,27 a non-capital case, the United States Supreme Court overruled its decision in Harris v. United States,28 where the Court declined to extend Apprendi to facts that increased the mandatory minimum sen
In Alleyne, the defendant was charged with using or carrying a firearm in relation to a crime of violence, which carried a five-year mandatory minimum sentence that increased to a seven-year mandatory minimum sentence if the firearm was “brandished.”30 The jury convicted the defendant. The sentencing range supported by the jury‘s verdict was five years’ imprisonment to life, but the judge, rather than the jury, found that the defendant brandished the firearm, increasing the mandatory minimum sentence from five years to seven years. The judge‘s finding that the defendant brandished the firearm, the Alleyne Court held, violated the Sixth Amendment right to a jury trial.31 Alleyne made clear that Apprendi‘s definition of an element of an offense necessarily included not only facts that increased the punishment ceiling, but also those that increased the floor. As Justice Thomas wrote in Alleyne, “[d]efining facts that increase a mandatory statutory minimum to be part of the substantive offense enables the defendant to predict the legally applicable penalty from the face of the indictment,” and “[i]t also preserves the historic role of the jury as an intermediary between the State and criminal defendants.”32 The United States Supreme Court further concluded in Alleyne that
the essential Sixth Amendment inquiry is whether a fact is an element of the crime. When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to a jury. It is no answer to say that the defendant could have received the same sentence with or without that fact.33
Accordingly, the Supreme Court stated that “if a judge were to find a fact that increased the statutory maximum sen
This Court‘s principal case upholding the constitutionality of the post-Ring variant of
II. CERTIFIED QUESTION 2 SHOULD BE ANSWERED IN THE NEGATIVE AS TO UNANIMITY AND IN THE AFFIRMATIVE AS TO THE BURDEN OF PROOF
Question 2 should be answered in the negative with respect to unanimity, as a matter of federal constitutional law—not as a matter of the Delaware Constitution.41
However, Question 2 should be answered in the affirmative as to the burden of proof.
Under Delaware‘s present capital sentencing framework, the jury‘s primary function in the sentencing phase is to make a factual finding concerning the existence of a statutory aggravating circumstance. The jury also makes a sentencing recommendation regarding whether the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist.
In Apodaca v. Oregon,42 the United States Supreme Court held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in State criminal trials.43 There, the Supreme Court considered whether convictions of crimes by less-than-unanimous juries violated the right to trial by jury in criminal cases under the Sixth Amendment. A plurality of the Court “perceive[d] no difference between juries required to act unanimously and those permitted to convict or acquit by votes of 10 to two or 11 to one.”44 The plurality con
In McDonald v. City of Chicago,46 the United States Supreme Court observed that the outcome in Apodaca “was the result of an unusual division among the Justices,” where “four Justices took the view that the
More recently, in Hurst, the petitioner challenged the viability of Apodaca, but the Supreme Court declined to address whether the Sixth Amendment right to trial by jury requires a unanimous jury verdict in State criminal trials.49 Thus, Apodaca remains the federal constitutional law. Apodaca‘s precariousness notwithstanding, as a matter of the Delaware Constitution, the jury must unanimously find beyond a reasonable doubt the existence of at least one statutory aggravating factor as a predicate to the imposition of the death penalty.50 But, as currently interpreted, the Sixth Amendment does not require jury unanimity in State criminal trials.
With respect to the burden of proof, the
III. CERTIFIED QUESTION 3, WHICH ASKS WHETHER THE WEIGHING FUNCTION MUST BE PERFORMED BY A JURY, SHOULD BE ANSWERED IN THE NEGATIVE
As certified to this Court, Question 3 should be answered in the negative. I reach this conclusion for two reasons. First, Hurst overruled Spaziano and Hildwin only in part. Hurst leaves undisturbed the United States Supreme Court‘s clear statement in Spaziano that “the Sixth
Further, Hurst—which does not speak to the weighing function directly—should not be viewed as implicitly overruling the constitutionality of judicial sentencing in capital cases in the face of such clear authority to the contrary, and especially when the author of Hurst, Justice Sotomayor, has explicitly addressed the weighing function in a separate opinion dissenting from the denial of certiorari in Woodward v. Alabama.57 The Hurst decision does not refer to Woodward, where Justice Sotomayor, in her dissent, observed that the Alabama capital sentencing scheme rendered a defendant death eligible upon a
factual finding that any aggravating factors outweigh the mitigating factors he has presented. The statutorily required finding that the aggravating factors of a defendant‘s crime outweigh the mitigating factors is therefore necessary to impose the death penalty. It is clear, then, that this factual finding exposes the defendant to a greater punishment than he would otherwise receive: death, as opposed to life without parole. Under Apprendi and Ring, a finding that has such an effect must be made by a jury.58
Hurst does not hold that a jury determination of the appropriate sentence to be imposed is a necessary element of a constitutional capital sentencing framework. The distinguished author of Hurst could have said so—as she did in Woodward—if that is what the Supreme Court intended in Hurst.
Finally, given that our legislature has, in recent amendments to
A. The United States Supreme Court Has Expressly Approved of Judicial Sentencing, and Hurst Did Not Overrule Those Decisions
1. Prior to Hurst, Judicial Sentencing Was Explicitly Sanctioned
The United States Supreme Court has, on multiple occasions, expressly sanctioned judicial sentencing in capital cases. Prior to Hurst, the Supreme Court “made abundantly clear that a defendant does not enjoy a constitutional right to a jury determination as to the appropriate sentence to be imposed.”59 The Spaziano Court stated
The death penalty is not “frustrated by, or inconsistent with, a scheme in which the imposition of the penalty in individual cases is determined by a judge.”61 Concurring in Ring, Justice Scalia observed that “[t]hose States that leave the ultimate life-or-death decision to the judge may do so—by requiring a prior jury finding of aggravating factor in the sentencing phase or, more simply, by placing the aggravating-factor determination (where it logically belongs anyway) in the guilt phase.”62 Hurst and Ring do not require a jury to make the determination that the aggravating circumstances outweigh the mitigating circumstances.63
2. Hurst Overrules Spaziano Only in “Relevant Part” and Does Not Address Proffitt
Hurst overruled Spaziano and Hildwin “in relevant part” and “to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury‘s factfinding, that is necessary for imposition of the death penalty.”64 The Hurst Court did not hold that the Sixth Amendment requires that a jury must make the determination as to the appropriate sentence to be imposed in capital cases. Nor did Ring address whether “the Sixth Amendment require[s] the jury to make
In Proffitt v. Florida,66 a plurality of the United States Supreme Court did address whether the
Moreover, Justice Breyer‘s concurrence in Hurst—which has not yet garnered majority support on the United States Supreme Court—would not have been necessary if the Court‘s Opinion contemplated weighing by a jury as opposed to a judge. He wrote:
For the reasons explained in my opinion concurring in the judgment in Ring v. Arizona, I cannot join the Court‘s opinion. As in that case, however, I concur in the judgment here based on my view that “the
Eighth Amendment requires that a jury, not a judge, make the decision to sentence a defendant to death.”70
Justice Breyer concurred in the Hurst judgment precisely because the Majority did not hold that jury sentencing was constitutionally required, either by the Sixth or Eighth Amendment, in capital cases.
B. Principles of Federalism and Separation of Powers Call for Judicial Restraint and Favor a Narrower Holding That Judicial Sentencing Remains Permissible
Within our constitutional system of checks and balances, a State statute can be invalidated on the grounds that it violates the United States Constitution.71 However,
To illustrate, in 1991, Delaware‘s legislature amended
This bill would cause the judge to make the final determination as to whether a person convicted of first degree murder should be sentenced to death or life imprisonment. The bill provides a clear statutory framework to guide the judge and the jury would assist in this determination by rendering, after deliberations, as [sic] an advisory sentence to be imposed. This bill generally follows the Florida statute as approved by the United States Supreme Court.73
In 2002, following Ring, our statute was amended to largely reflect its present form.74
These legislative enactments endorsing judicial sentencing are the result of our General Assembly‘s reactions to criminal cases that deeply impacted Delaware‘s citizenry. Particularly because Hurst does not expressly address judicial sentencing, and instead suggests that certain aspects of Spaziano and Hildwin survive, principles of federalism and separation of powers call for judicial restraint so as to not so easily unravel what our State legislature has deemed appropriate on more than one occasion. While the progression of United States Supreme Court jurisprudence discussed in my response to Certified Question 1 may evolve to eventually require jury sentencing, Hurst does not clearly mandate jury sentencing in capital cases.
IV. CERTIFIED QUESTION 4 IS INAPPLICABLE
Given my answer to Question 3, Question 4 is inapplicable.
V. CERTIFIED QUESTION 5, AS TO WHETHER ANY UNCONSTITUTIONAL PROVISION CAN BE SEVERED, SHOULD BE ANSWERED IN THE NEGATIVE
In view [of] the integral nature of the provisions of
VI. CONCLUSION
What we address today is not whether capital punishment is categorically constitutional or not. In this regard, the United States Supreme Court has recently said that, as a matter of federal constitutional law, the death penalty is constitutional. Last year, for example, in Glossip v. Gross,78 the Supreme Court stated that it has “time and again reaffirmed that capital punishment is not per se unconstitutional.”79 Indeed, the
Nor is what the Delaware Constitution may require the subject of the certified questions. Rather, we focus on whether the United States Supreme Court‘s decision in Hurst invalidates any portion of our State death penalty statute as a matter of federal constitutional law only. The constitutional issues addressed in Hurst—and, for that matter, Ring—concerned the judicial determination of aggravating circumstances. Based upon a plain reading of Hurst, I conclude that the only portions of our statute that are adversely impacted concern judicial findings of aggravating circumstances not found by the jury.
From my perspective, Hurst does not reach our statute‘s provision for judicial weighing of aggravating and mitigating circumstances. Judicial restraint calls for leaving the issue of judicial sentencing in capital cases to a day when the United States Supreme Court unambiguously addresses the matter. As the Supreme Court reiterated in Schad v. Arizona,81 “[i]t goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government.”82 The Schad Court further observed that “we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States.”83 Based upon the Supreme Court‘s recent remand of three cases involving Alabama‘s death penalty statute84—a statute which bears some similarity to Delaware‘s—the Court may eventually reconsider the issue of judicial sentencing. But until then, I am persuaded by Justice Scalia‘s observations in his separate concurrence in Glossip, where he stated:
Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide.85
Accordingly, I would leave to the citizens of Delaware to decide certain issues regarding capital punishment not directly addressed by Hurst and I would not declare unconstitutional other aspects of
VAUGHN, Justice, dissenting:
I am not persuaded that Hurst v. Florida1 requires a finding that Delaware‘s death penalty statute violates the Sixth Amendment to the United States Constitution. While I have seen it written that the Florida statute, in effect at the time of Hurst, and the Delaware statute are simi-
For me, the analysis in this case begins with Apprendi v. New Jersey2 and Ring v. Arizona.3 In Apprendi, the U. S. Supreme Court held that a factual determination authorizing an increase in a maximum prison term must be found by a jury be-
yond a reasonable doubt.4 In Ring, the Court applied Apprendi to Arizona‘s death penalty statute.5 The Arizona statute in effect at the time of Ring gave the jury no role in sentencing.6 The law authorized a judge to sentence a defendant to death for the crime of murder if the judge found at least one of certain, enumerated aggravating circumstances to exist and “there [were] no mitigating circumstances sufficiently substantial to call for leniency.”7 This language created a form of a weighing process which the judge engaged in if he or she found that an aggravating circumstance existed.
The U.S. Supreme Court observed that under Arizona‘s statute, a “death sentence may not legally be imposed . . . unless at least one aggravating factor is found to exist beyond a reasonable doubt.”8 It stated that “[t]he question presented was whether that aggravating factor may be found by a judge, as Arizona law specifies, or whether the Sixth Amendment‘s jury trial guarantee, made applicable to the States by the Fourteenth Amendment, requires that the aggravating factor determination be entrusted to the jury.”9 The Court reasoned that a jury must determine “any fact on which the legislature conditions an increase in [a defendant‘s] maximum punishment,”10 and overruled Walton v. Arizona11 “to the extent that it allows a sentencing judge, sitting without a
In his concurrence in Ring, Justice Scalia said that “today‘s judgment has nothing to do with jury sentencing. . . . Those States that leave the ultimate life-or-death decision to the judge may continue to do so. . . .”13 This statement brought no comment from the majority. Justice Breyer concurred in the judgment because of his view that the Eighth Amendment requires jury sentencing. All of the other eight Justices passed on the opportunity to join his concurrence.
It follows, in my view, that in 2002 when Ring was decided, the U.S. Supreme Court held the view that the Sixth Amendment required the jury to find the existence of an aggravating factor, unanimously and beyond a reasonable doubt, in order for a defendant to be sentenced to death, but did not require that all the facts underlying the weighing process be found by a jury, and did not require jury sentencing. Ring stands only for the principle that the jury must find the existence of at least one statutory aggravating factor, unanimously and beyond a reasonable doubt, in order to elevate the defendant‘s maximum punishment from life imprisonment to death. That is the view of Ring which this Court adopted in Brice v. State,14 which I think was correct then and remains correct after Hurst.
The pertinent difference between Arizona‘s statute at the time of Ring and Florida‘s statute was that under Arizona‘s statute the jury had no role in sentencing, whereas under the Florida statute it had only an advisory role. After Ring, that is a distinction without a difference. It is clear that the characteristics of Florida‘s statute failed to comply with Ring‘s requirement that a jury must determine “any fact on which the legislature conditions an increase in [a defendant‘s] maximum punishment.”15 Florida never changed its statute to bring it into compliance with Ring.16 Although Florida attempted to defend its statute before the U. S. Supreme Court in Hurst, the statute‘s failure to comply with Ring is actually quite obvious. I think that after Ring was decided, the eventual overruling of Hildwin v. Florida17 and Spaziano v. Florida,18 which occurred in Hurst, was very predictable.
Much is made of the sentence in Hurst which reads “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.”19 When this sentence is read as supporting a conclusion that the Sixth Amendment requires jury fact finding in the weighing process or jury sentencing, I think it is read out of context. I believe that the most reasonable explanation of Hurst is that it applied Ring without broadening Ring. In Hurst, the majority as much as says so, in my opinion:
The analysis the Ring Court applied to Arizona‘s sentencing scheme applies
equally to Florida‘s. Like Arizona at the time of Ring, Florida does not require the jury to make the critical findings necessary to impose the death penalty.20
Another passage in Hurst recognizes the rule set forth in Ring. Referring to the Florida Supreme Court, the Court stated:
As relevant here, the court rejected Hurst‘s argument that his sentence violated the Sixth Amendment in light of Ring. Ring, the court recognized, “held that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in the maximum punishment.” But the court considered Ring inapplicable in light of this Court‘s repeated support of Florida‘s capital sentencing scheme in pre-Ring cases.21
In responding to the State of Florida‘s arguments, the Court again refers to death eligibility:
Florida concedes that Ring required a jury to find every fact necessary to render Hurst eligible for the death penalty. . . . The State fails to appreciate the central and singular role the judge plays under Florida law. As described above and by the Florida Supreme Court, the Florida sentencing statute does not make a defendant eligible for death until findings by the court that such person shall be punished by death.22
Whether a jury should be required to find the existence of all facts which underlie the weighing process or have a greater role in the weighing process was not before the Court in Hurst. In my opinion, the Court was not discussing the weighing process in Hurst. The question presented in Hurst was simple and straightforward:
Whether Florida‘s death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court‘s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).23
The question presented did not ask whether the jury‘s fact finding role should be broadened. Timothy Lee Hurst‘s attorneys did not argue, as far as I can determine, that the Sixth Amendment requires that the jury must find all facts underlying the weighing process. They did not need to because the Florida statute failed to comply with Ring‘s requirement that the jury make all findings of fact which make a defendant death eligible.
In their opening brief in the U.S. Supreme Court, the attorneys for Timothy Lee Hurst included an argument which I read as an argument that Florida‘s death penalty statute is unconstitutional because it is not like Delaware‘s. After arguing that Hildwin—a case which had previously upheld Florida‘s death penalty statute24—should be overruled, counsel for Timothy Lee Hurst argued:
Tellingly, the three other States that, at the time of Ring, had “hybrid systems, in which the jury renders an advisory verdict but the judge makes the ultimate sentencing determinations,” Ring, 536 U.S. at 608 n.6, 122 S.Ct. 2428, modified their capital sentencing schemes after Ring to ensure that the jury makes all findings necessary for imposition of the death penalty (even if the judge still
selects the sentence). See Brice v. State, 815 A.2d 314, 320 (Del. 2003). . . .25
Timothy Lee Hurst‘s attorneys themselves described Delaware‘s statute as one under which “the jury makes all findings necessary for imposition of the death penalty.”26 In my opinion, they are obviously referring to the death eligibility finding. Notice the similarity of this passage from Timothy Lee Hurst‘s opening brief to the statement in the majority opinion in Hurst that a jury must “find each fact necessary to impose a sentence of death.”
At oral argument before the Court, the first remark made by the attorney representing Timothy Lee Hurst referred to death eligibility:
[Attorney for Timothy Lee Hurst]: Under Florida law, Timothy Hurst will go to his death despite the fact that a judge, not a jury, made the factual finding that rendered—rendered him eligible for death. That violates the Sixth Amendment under Ring.27
Just a question later, he answers a question by again referring to death eligibility:
Justice Scalia: Is there ever a case in which the jury found aggravators and recommended the death sentence, and the judge reversed that finding?
[Attorney for Timothy Lee Hurst]: There may well be. This is principally a case about the finding of death eligibility, not sentence selection.28
Later in the argument, the attorney for Timothy Lee Hurst, in response to another question from Justice Scalia, refers to death eligibility and not the determination of the sentence:
[Attorney for Timothy Lee Hurst]: Justice Scalia—exactly. And, Justice Scalia, leaving aside our Eighth Amendment point in our brief—that followed on Justice Breyer‘s concurrence in Ring, the—this is all about the eligibility, not the determination of what sentence applies.29
I interpret the statement in the majority opinion in Hurst that a jury must find “each fact necessary to impose a death sentence” to mean that the jury must find each fact that is necessary to increase the maximum punishment that the defendant may receive from a sentence of life imprisonment to the death penalty. Those facts are, in this case, with respect to Count I, (1) Rauf caused the death of the victim, (2) he did so intentionally, and (3) at least one, specific statutory aggravating factor exists; and, with respect to Count II, (1) Rauf, while engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit the felony of Robbery in the First Degree, (2) did recklessly cause the death of the victim. Since the elements of Count II contain a statutory aggravating factor within them, no finding of an additional statutory aggravating factor is required with respect to that Count. In my view, those are the facts “necessary” to impose the death penalty. If the U.S. Supreme Court in Hurst had intended to broaden Ring to require that
Recently, in May and June of this year, the U. S. Supreme Court vacated the judgments in three Alabama death penalty cases; and remanded one to the Alabama Supreme Court and two to the Court of Criminal Appeals of Alabama for further consideration in light of Hurst.30 Alabama law is relevant to the Delaware statute. Its statute, like Florida‘s, gives the jury only an advisory role in a death penalty sentencing. After Ring, Alabama did not amend its death penalty statute, but the Alabama Supreme Court performed a judicial “repair” to bring Alabama into compliance with Ring.31 In Ex parte McGriff, it stated as follows:
At no time during a retrial of the charge against McGriff should the jury be told that its decision on the issue of whether the proffered aggravating circumstance exists is “advisory” or “recommending.” Rather, the jury should be instructed that, if it determines that the aggravating circumstance does not exist, the jury must return a verdict, binding on the trial court, assessing life imprisonment without the possibility of parole as the penalty. The jury should further be instructed that, if and only if, it unanimously finds the aggravating circumstance to exist beyond a reasonable doubt, the jury should weigh the aggravating circumstance against the mitigating circumstance or circumstances, if any, and to return a verdict in accordance with § 13A-5-46(e)(2) and (3) and (f). . . .32
The jury‘s verdict in the weighing process, like in Delaware, is advisory.
On June 17, 2016, after the remand orders, the Court of Criminal Appeals of Alabama, in Ex parte State,33 in essence published its reconsideration of Ring after Hurst. It soundly rejected the view that Hurst broadened Ring, stating:
The Court in Hurst did nothing more than apply its previous holdings in Apprendi and Ring to Florida‘s capital-sentencing scheme. The Court did not announce a new rule of constitutional law, nor did it expand its holdings in Apprendi and Ring. As the State correctly argues, ”Hurst did not add anything of substance to Ring.”34
Until the U.S. Supreme Court speaks more clearly otherwise, I agree with this ruling by the Court of Criminal Appeals of Alabama.
Justice Scalia, who at the time of his concurrence in Ring believed the Sixth Amendment allows a State to give death penalty sentencing authority to a judge, is with the majority in Hurst. If he had changed his mind since Ring, I think he would have said so and explained why. Justice Breyer is still just concurring in the judgment only because he believes the Eighth Amendment requires jury sentenc-
I do think that there is ambiguity in Hurst. A concurring judge in the June 17, 2016 Alabama case I mention above suggests that the vagueness may be deliberate, and I wonder the same thing.35 Justice Sotomayor, for instance, states in her dissent from the denial of certiorari in Woodward v. Alabama that a finding that the aggravating factors outweigh the mitigating factors is a finding of fact which must be made by a jury.36 The case would have given the U.S. Supreme Court an opportunity to review the Alabama death penalty statute. However, there apparently were not three other Justices who agreed with her that certiorari should be granted. In Woodward she was writing for herself. In Hurst she was writing for a majority of seven. I read Hurst as stopping short of what Justice Sotomayor stated very clearly in her dissent in Woodward.
Until the U.S. Supreme Court resolves this vagueness, I resolve it by concluding that Hurst applies Ring as interpreted by Brice but does not broaden it. I am satisfied that Delaware‘s death penalty statute complies with the Sixth Amendment as the law on that amendment is currently interpreted by the U.S. Supreme Court. Therefore, I answer the certified questions as follows:
- Yes, so long as the jury has first found the existence of at least one statutory aggravating factor unanimously and beyond a reasonable doubt;
- Given my answer to Number 1, my answer to Number 2 is No;
- No;
- Given my answers to the previous questions, my answer to Number 4 is No; and
- Given my answers to the previous questions, Number 5 is not applicable. I do agree that
11 Del. C. § 4209 is not severable.
Ervin C. OLIVER, Defendant Below-Appellant,
v.
STATE of Delaware, Plaintiff Below-Appellee.
No. 181, 2016
Supreme Court of Delaware.
Submitted: June 6, 2016
Decided: August 2, 2016
Court Below—Superior Court of the State of Delaware. Cr. ID 1401010144.
AFFIRMED.