Lead Opinion
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 ease, 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,
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,
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 11 Del. C. § 4209, this is the critical finding upon which the sentencing judge “shall impose a sentence of death”?
Yes. Because Delaware’s death penalty statute does not require the jury to perform this function,
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 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 of 11 Del. C. § 4209, and the Court proceed with instructions to the jury that comport with federal constitutional standards?
No. Because the respective roles of the judge and jury are so complicated under § 4209, we are unable to discern a method by which to parse the statute so as to preserve it. Because we see no way to sever § 4209, the decision whether to reinstate the death penalty — if our ruling ultimately becomes final — and under what procedures, should be left to the General Assembly.
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.
Notes
. — U.S. -,
. Rauf v. State, No. 39, 2016 (Del. Jan. 28, 2016) (ORDER).
. See 11 Del. C. § 4209(d)(1) (“If a jury has been impaneled and if the existence of at least 1 statutory aggravating circumstance as enumerated in subsection (e) of this section has been found beyond a reasonable doubt by the jury, the Court, after considering the findings and recommendation of the jury and without hearing or reviewing any additional evidence, shall impose a sentence of death if the Court finds by a preponderance of the evidence ... that the aggravating circumstances found by the Court to exist outweigh the mitigating circumstances found by the Court to exist. The jury's recommendation concerning whether the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist shall be given such consideration as deemed appropriate by the Court in light of the particular circumstances or details of the commission of the offense and the character and propensities of the offender as found to exist by the Court. The jury's recommendation shall not be binding upon the Court.”).
. See § 4209(c)(3)(b)(2) (“The jury shall report to the Court by the number of the affirmative and negative votes its recommendation on the question as to whether, by a preponderance of the evidence, after weighing all relevant evidence in aggravation or mitigation which bear upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender, the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist.”).
. See supra note 3.
Concurrence Opinion
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. Florida
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,
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 Ap-prendi v. New Jersey,
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 Fur-man 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 sáfeguard 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 key 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.
At the beginning of our Republic, prisons of the kind we now have, where many defendants spend lengthy periods of their lives, were unknown.
From the beginning of our nation’s history, the jury’s role as the sentencer in capital cases “was unquestioned.”
The starkest way in which juries did this was by acquitting a defendant who was obviously guilty.
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.
About half of the states adopted discretionary statutes by 1900, and even more states followed soon after.
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*440 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.
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 Fur-man 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.
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, Illinois
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.
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*444 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.
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.
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.”
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.”
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 “striking] down virtually every death penalty law nationwide,”
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.
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.
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.
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,
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.”
[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 erimes 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?
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,
What followed Gregg and the other July 2nd cases was another wave of new death penalty statutes that confirmed that Fur-man and its progeny had unsettled, tradition.
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.
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,
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,
And, in Clemons v. Mississippi,
The Supreme Court again rejected a defendant’s argument that the Constitution requires jury sentencing in capital cases in Walton v. Arizona.
Finally, in Harris v. Alabama,
‡ ^
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 Furman
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.
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 Ap-prendi, 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.
Shortly after Apprendi, the Supreme Court decided Ring v. Arizona,
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.
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.”
One year after Ring and the accompanying amendment to § 4209, this Court decided Garden v. State,
Under the current version of § 4209, the Superior Court holds a separate hearing to determine whether a defendant found guilty of first degree murder should be sentenced to death' or life imprisonment without parole. Unless the defendant has waived her right to a jury trial, the jury that found the defendant guilty is charged with ' answering two questions: (1) “[wjhether the evidence shows beyond a reasonable doubt the existence of at least 1 aggravating circumstance [i.e., death eligibility factor] as enumerated in subsection (e)”; and (2) “[w]hether, by a preponderance of the evidence ..., the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist.”
The jury’s answers to the two questions in § 4209(c)(3) are used in the two phases of sentencing described above, the eligibility phase and the ultimate sentencing phase. The eligibility phase involves only the jury, not the judge. Specifically, the jury determines whether at least one death eligibility factor exists beyond a reasonable doubt. “[T]he jury must be unanimous as to the existence of that statutory aggravating circumstance [i.e., death eligibility factor].”
Unlike the eligibility phase, under § 4209 the ultimate sentencing phase involves, both the jury and the judge. The ultimate sentencing “phase does not increase the maximum punishment, but only ensures that the punishment is appropriate and proportional.”
the Court, after considering the findings and recommendation of the jury and without hearing or reviewing any additional evidence, shall impose a sentence of death if the Court finds by a preponderance of the evidence ... that the aggravating circumstances found by the Court to exist outweigh the mitigating circumstances found by the Court to exist.177
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.”
After § 4209 was amended in the wake of Ring, this Court answered four certified questions from the Superior Court in Brice v. State.
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.”
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.
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.’ ”
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.
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”
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.”
The Supreme Court’s use of the term “necessary” in Hurst also has relevance because the author of Hurst, Justice Soto-mayor, 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.”
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.
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.
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.”
A.
The five certified questions are:
(1) 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?
(2) 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?
(3) 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”?
(4) 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?
(5) 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 of 11 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.”
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.
B.
Against this backdrop of § 4209 and the U.S. Supreme Court’s capital sentencing decisions, I explain my answer to the five certified questions. But, rather than addressing the first four questions in piecemeal fashion, I consider the broader implications of the federal Constitution and the Supreme Court’s precedent addressing it on the role of the judge and the jury under § 4209. The Sixth Amendment provides:
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*464 confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.208
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.
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 § 4209 makes other findings necessary. That necessity is in fact dictated by U.S. Supreme Court precedent.
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.”
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.
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.
Obscured in the complexity of the Fur-man 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.
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 irrevocableness 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,
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.
[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.”
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.
But if ever Emerson’s famous maxim had purchase, it would be here. The Supreme "Court has long said that “death is different.”
• 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*470 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 Consti
Although it might be possible to resolve the case before us on the narrow basis we did in Brice by qualifying the broad use of “necessary” in Hurst to mean only necessary to death eligibility, I believe that would involve ignoring the core issue that Hurst and its predecessor cases have laid bare, which is how it can be consistent with the Sixth Amendment (or for that matter the Eighth Amendment) for a state to deny a defendant the right to have a jury make the determination whether he should live or die. It is only by reference to the intricate post-Furman jurisprudence of the U.S. Supreme Court that I can rationalize a justification for current practice.
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 Sixth Amendment in the most compelling of contexts,
[W]hen it comes to capital cases, there is no historical support for the line that Ring attempts to draw between factfind-ing 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.
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 deten-mination to give a death sentence on a determination that the aggravating factors outweigh those mitigating for the comparatively more merciful one.
Not only that, I cannot find in the text of the Constitution any dividing line involving facts necessary to get the “maximum” or “authorized” punishment. Rather, judges have construed this as a notice requirement inherent in the Due Process Clause, and as providing a right to have a jury make the factual determination as to any matter that establishes the maximum authorized sentence.
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.
I recognize that this type of jurisprudential 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.
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.
The U.S. Supreme Court has often drawn lines regarding when constitutional rights come into play and when they are transgressed.
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.
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.
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.
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 pi-ovides against the imposition of the ultimate punishment of death.
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.
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
.
. - U.S. -,
. Id. at 619.
. Id. at 624.
.
. See, e.g., John G. Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 Colum. L. Rev. 1967 (2005); Nancy Gertner, A Short History of American Sentencing: Too Little Law, Too Much Law, or Just Right, 100 J. Crim. L. & Criminology 691 (2010); Morris B. Hoffman, The Case for Jury Sentencing, 52 Duke L.J. 951 (2003); Erik Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About Apprendi, 82 N.C. L. Rev. 621 (2004).
. See United States v, Grayson,
. See Woodson v. North Carolina,
. See Douglass, supra note 6, at 1977-78.
. See Woodson,
. Woodson,
. See Bedau, supra note 11, at 4-5 ("In rapid order most states followed Pennsylvania's lead, so that today every American jurisdiction that authorizes the death penalty for murder does so by limiting it to those convicted of murder in the first degree....”); see also Raymond Taylor Bye, Capital Punishment in The United States 5-6 (1919); 6 Wayne R. LaFave, et al„ Criminal Procedure § 26.1(b), at 670-71 (3d ed. 2007).
. Walton v. Arizona,
. See, e.g., State v. Baynard, 1 Del.Cas. 662 (O. & T. 1794); State v. Donavan, 1 Del.Cas. 168 (O. & T. 1798); see also State v. Jeandell,
. See Lillquist, supra note 6, at 628-29; Nancy J. King, The Origins of Felony Jury Sentencing in the United States, 78 Chi.-Kent L. Rev. 937 (2003).
. Douglass, supra note 6, at 1972.
. See Woodson,
. See Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine 47-48 (2014); White, supra note 13, at 30-31 (“[I]t became accepted that in homicide cases the jury would exercise its nullification power when it believed that the defendants — although they might be technically guilty of the capital offense — did not deserve to die. Thus, in this context, the jury’s fact-finding power has historically been used to temper the application of capital punishment so that it will mirror the community’s perception as to when that punishment is appropriate.”).
. C.F. Adams, The Works of John Adams 255 (1865).
. See supra note 12 and accompanying text.
. See Woodson,
. See Del. C. ch. 127 §§ 1,2 (1852).
. See State v. Reidell,
. See Woodson,
. Winston v. United States,
. E.g., Robert J. Smith & Bidish J. Sarma, How and Why Race Continues to Influence the Administration of Criminal Justice in Louisiana, 72 La. L. Rev. 361, 375-78 (2012).
Regrettably, Delaware was among the many states that embarked on a century-long campaign of resistance to the rights granted to black people by the Fourteenth and Fifteenth Amendments, including those related1 to juries. In justifying the total absence of any black citizens in grand and petit jury pools as “nowise remarkable,” Delaware’s then-Chief Justice said that "the great body of black men residing in this State are utterly unqualified by want of intelligence, experience or moral integrity to sit on juries.” Neal v. Delaware,103 U.S. 370 , 402,26 L.Ed. 567 (1880) (Waite, C.J., dissenting) (quoting the Delaware Supreme Court's opinion) (internal quotation marks omitted). A divided U.S. Supreme Court held that this exclusion violated the Fourteenth Amendment, but dissenters embraced the rationale that categorical exclusion of black people from juiy pools on the basis of their presumed unfitness to serve was constitutional. See id. at 397-98 (Harlan, J.) (finding that Delaware’s practice of restricting juries to '"free white male citizens, of the age of twenty-two years and upwards” was in violation of the Fourteenth Amendment); id. at 407-08 (Waite, C.J., dissenting) (“No one can truly affirm that women, the aged, and the resident foreigner, whether Caucasian or Mongolian, though excluded from acting as jurors, are not as equally protected by the laws of the State as those who are allowed or required to serve in that capacity. To afford equality of protection to all persons by its laws does not require the State to permit all persons to participate equally in the administration of those laws, or to hold its offices, or to discharge the trusts of government,”).
.See Andres v. United States,
. See Joel' Samaha, Criminal Procedure 475 (2011); Corintia Barrett Lain, Furman Fundamentals, 82 Wash. L. Rev. 1, 23 (2007).
. See supra note 7 and accompanying text.
. See Wright, supra note 13, at 1374-75; King, supra note 15, at 985-86.
. See United States v. Moreland,
. See Hoffman, supra note 6, at 965; Lillquist, supra note 6, at 628-29.
. See Powell v. Alabama,
. See, e.g., In re Oliver,
. See Woodson,
. See State v. Dickerson,
. See 29 Del. C. ch. 266 (1917); see also State v. Thomas,
. See Dickerson,
. See id.
. See Woodson,
. See Andres,
. Woodson,
.
. Id. at 519,
. See id. at 525-27 & nn. 2-8,
.
. See id. at 149,
. Stephen F. Smith, The Supreme Court and the Politics of Death, 94 VA. L. REV. 283, 287 (2008); see also Lain, supra note 28, at 18.
.
. Id. at 207-08,
. See Andrea D. Lyon, The Death Penalty, What's Keeping It Alive 7 (2014); Sam Kamin & Justin Marceau, Waking the Furman Giant, 48 U.C. Davis L. Rev. 981, 990 (2015); Lain, supra note 28, at 18-19.
. See Lockett,
. See Furman,
. See id. at 240,
. See id.’, Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699, 716 n.80 (2002).
. Lain, supra note 28, at 16-17.
. Furman,
. Id. at 239-40,
. See Lain, supra note 28, at 10-11.
. See Furman, 408 U.S, at 256-57,
. 6 LaFave, et al,, supra note 12, § 26.1(b), at 671.
. See Furman,
. Gregg,
. Woodson,
. Smith, supra note 48, at 288; Franklin E. Zimring & Gordon Hawkins, Capital Punishment and the American Agenda 41 (1986); Liebman, supra note 52, at 23.
. See Baze v. Rees,
. Lain, supra note 28, at 45; see also Furman,
. See Callins v. Collins,
. See Lain, supra note 28, at 47-49; Smith, supra note 48, at 290; Zimring & Hawkins, supra note 65, at 39.
. See Stephen Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. 1, 17-18, 43 (1980) (eight states switched from jury sentencing to judge sentencing after Furman).
. See Lain, supra note 28, at 56-57.
. See Poulos, supra note 10, at 186.
. See Liebman, supra note 52, at 10.
. See id.) Douglass, supra note 6, at 1994.
.
. See Liebman, supra note 52, at 28.
. Lain, supra note 28, at 55 n.317.
. See Gregg,
. See id.
. Id. at 169,
. Gregg,
.
. Id. at 289, 293,
. Id. at 303,
. Id.
. Id. at 304-05,
. See id. at 287 n.7,
. See Sumner v. Shuman,
. See, e.g., Margaret Jane Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 126 U. Pa. L. Rev. 989, 999 (1978); Death Penalty, 90 Harv. L. Rev. 63, 64, 69 (1976).
.
. Id. at 271,
. Jurek,
.
. Id. at 252,
. See supra note 47 and accompanying text.
. See Johnson v. Texas,
. See Douglass, supra note 6, at 2024-25 (discussing this issue).
. See supra notes 82-89 and accompanying text.
. See supra notes 63-64 and accompanying text.
. Douglass, supra note 6, at 1995; see also id. at 2020.
. See Gregg,
. See, e.g., Coker v. Georgia,
. See Douglass, supra note 6, at 1984; Stevenson, supra note 45, at 1140.
. See Liebman, supra note 52, at 30-34.
.
. See id. at 451,
. Id. at 457-58,
. See, e.g., Strickland v. Washington,
. Spaziano,
. Id. at 458-59,
. Spaziano,
.
. White, supra note 13, at 18.
. Hildwin,
. Id. at 640,
.
. See id. at 745,
. See id.
.
. See id. at 648,
. Id. at 649,
. See id. at 650,
.
. Id. at 505,
. Id. at 509,
. See id. at 511,
. Id. at 515,
. See supra note 15 and accompanying text.
. See Harris,
. See supra notes 85-92 and accompanying text.
. See, e.g., Zant,
. See, e.g., Kansas v. Can, — U.S. -,
.
.
. See Godfrey,
. See Garvey, supra note 45, at 1035; Smith, supra note 48, at 297-98.
. See Brown v. Sanders,
. See Robert J. Smith, Forgetting Furman, 100 Iowa L. Rev. 1149, 1160 (2015); Jeffrey L. Kirchmeier, Casting a Wider Net: Another Decade of Legislative Expansion of the Death Penalty in the United States, 34 PEPP. L. REV. 1, 25 (2006); James S. Liebman & Lawrence C. Marshall, Less is Better: Justice Stevens and the Narrowed Death Penalty, 74 Fordham L. Rev, 1607, 1649 (2006).
. See 11 Del. C. § 4209(e)(1).
. Smith, supra note 48, at 364-65.
. See Douglass, supra note 6, at 1994-95.
. See supra notes 83-84 and accompanying text.
. See Hans et al., supra note,36, at 75 (the General Assembly eliminated the unanimity requirement from § 4209 because the jury in a highly publicized murder case could not agree unanimously on death for any of the four defendants); Joseph T. Walsh, The Limits of. Proportionality Review in Death Penalty Cases, 21 Del. Law. 13, 14 (2004). This Court upheld that amendment in State v. Cohen,
. Johnson et al., supra note 40, at 1954.
. See Apprendi,
. See id. at 470-71,
. Id. at 469,
. See id. at 471,
. See id. at 469,
. Id. at 490,
.
. Id. at 303-04,
.
. See W. David Ball, Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment, 109 Co-lum. L. Rev. 893, 896-97 (2009).
. See supra notes 119-122 and accompanying text.
. Ring,
. Id. at 602,
. Id. at 609,
. Id. (internal citation omitted) (quoting Apprendi,
. See Brice v. State,
. See 11 Del. C. § 4209(d) (1991); S.B. 79, 137th Gen. Assemb., Reg. Sess. (Del. 1991); S.B. 449, 141st Gen. Assemb., Reg. Sess. (Del. 2002).
. See 11 Del. C. § 4209(d)(1)(a) (1991).
. See id. § 4209(d)(1)(b).
. See id. § 4209(g).
. Ring, 536 U.S, at 608 n.6,
. Brice v. State,
.
. Id. at 343.
. See supra note 143 and accompanying text.
. Michael L. Radelet, Overriding Jury Sentencing Recommendations in Florida Capital Cases: An Update and Possible Half-Requiem, 2011 Mich. St. L. Rev. 793, 800.
. 11 Del. C. § 4209(c)(3).
. Id. § 4209(c)(3)(b)(l); see also id. § 4209(e)(1).
. Id. § 4209(d)(2).
. Id. § 4209(d)(1).
. Swan v. State,
. 11 Del. C. § 4209(c)(3)(a)(2).
. Id. § 4209(d)(1).
. Id.
.
. Id. at 322 (internal citations omitted); see also Swan,
. Brice,
. Id.
. Ring,
. See Hurst,
. Id. at 620 (quoting Fla. Stat. § 921.141(2) (2015)); see also Robin Maher, Hurst v. Florida: How Much Does the Sixth Amendment Really Protect?, Geo. Wash. L. Rev. Docket (Jan. 17, 2016), http://www.gwlr.orgdiurst-v-florida-how-much-does-the-sixth-amendment-reallyprotect/; Judith L. Ritter, Time to Rethink Delaware’s Death Penalty?, 34 Del. Law. 1, 15 (2016).
. See 11 Del. C. § 4209(c)-(d).
. Ritter, supra note 185, at 16.
. Hurst,
. Hurst,
. Id. at 621.
. Id. at 622 (emphasis added).
. Id. at 623.
. Id. (internal quotation marks omitted),
. See, e.g., Woodward v. Alabama, — U.S. -,
. Hurst,
. Id. at 619 (emphasis added).
. See Woodward,
. See Apprendi,
. Hurst,
. See Ring,
. See id. at 616,
. See Hurst,
. Id.
. Johnson v. Alabama, — U.S. -,
. Woodward,
. Hurst,
. See, e.g., Br. of Charles Hamilton Houston Institute for Race and Justice at 9-12 (hereinafter "C. H. Houston Br.”).
. U.S. Const, amend. VI.
. See ll Del C. § 4209(c)-(d).
. Id. § 4209(c)(3).
. See, e.g., Zebroski v. State,
. Cunningham v. California,
. Hurst,
. See Woodson,
. Because I admit that Hurst can be read more than one way, I understand why my respected colleague in dissent views Hurst as simply an application of Ring, and as a case-specific ruling that a jury must make all findings necessary to make a defendant eligible for the death penalty.
. See Kleinstuber, supra note 205, at 329; see also The Declaration of Independence para. 3 (U.S. 1776) (listing among the reasons for separation from England: "For depriving us in many cases, of the benefits of Trial by Jury.”); Letter from Thomas Jefferson to Thomas Paine (1789) ("I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.”); Thomas Jefferson, Notes on the State of Virginia 140 (J.W. Randolph ed., 1853) ("[I]f the question relate to any point of public liberty, or if it be one in which the judges may be suspected of bias, the jury undertake to decide both law and fact.”); Statement of John Adams (1774) ("Representative government and trial by jury are the heart and lungs of liberty.”); The Federalist No. 83 (Alexander Hamilton) ("The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury.... ”); Georgia v. Brailsford,
. See Woodward,
. See, e.g., Ring,
. See supra note 84 and accompanying text.
. See supra notes 85, 91-92 and accompanying text.
.
. See Garvey, supra note 45, at 997-98; Liebman, supra note 52, at 28; supra and accompanying text.
. See Johnson et al., supra note 40, at 1931; Hans et al., supra note 36, at 73-78 (same).
. See supra notes 13-15, 45 and accompanying text.
. See, e.g., Smith, supra note 52, at 287-91; Lillquist, supra note 6, at 641-52; The Changing Role of the Jury in the Nineteenth Century, 74 Yale L.J. 170, 170-74 (1964).
. See, e.g., Woodson,
.
. Id. at 313,
. See supra note 44 and accompanying text.
. Witherspoon,
. See Winston,
. 2 The Miscellaneous Essays and Occasional Writings of Francis Hopkinson, Esq. 101-02 (1792).
. 6 LaFave, et al., supra note 12, § 26.2(b), at 699.
. Proffitt,
. Proffitt,
. See Carr,
. See 24 C.J.S. Criminal Law § 2374 West-law (database updated 2016); see also Caldwell v. Mississippi, 472 U.S, 320, 340 n.7,
. See Gregg,
. E.g., Quick Facts: Mandatory Minimum Penalties,
. Many cases stand for this proposition. E.g., Streetman v. Lynaugh,
. See Glossip v. Gross, - U.S. -,
. See Gilmore v. Taylor,
. See Williams v. Taylor,
. See Coker v. Georgia,
. See Eberheart v. Georgia,
. See Enmund,
. See Kennedy v. Louisiana,
. Ford v. Wainwright,
. Atkins v. Virginia,
. See Roper v. Simmons,
. See Green v. Georgia,
. See Lockett v. Ohio,
. See Beck,
. For an overview of how the review of capital sentences is treated differently than the review of non-capital sentences, a topic which the U.S. Supreme Court has not directly spoken about but which state courts have addressed, see 24 C.J.S. Criminal Law §§ 2374-75 Westlaw (database updated 2016); see also Arthur W. Campbell, Law of Sentencing § 14.4, at 579-82 (3d ed. 2004).
. See Gillers, supra note 70, at 18 ("[Ejach of the eight states currently opting for judge sentencing made that choice after Furman. Each had previously embraced jury sentencing in some form. Their adoption of judge sentencing is an apparent attempt to meet Furmans unclear commands.”); Ritter, supra note 185, at 16 (“There is a rational argument that Apprendi requires jury verdicts for all aggravating circumstances because these factual findings expose a defendant to a death rather than a life sentence.”).
. See Stevenson, supra note 45, at 1103 (“Looking back on the entire line of pre-Ring cases on the right to juiy sentencing in capital cases, it is apparent that the die was indelibly cast in Proffitt [v. Florida,
. See David A. Strauss, Foreword: Does the Constitution Mean What It Says?, 129 Harv. L. Rev. 1, 29 (2015) (“Implicit in all of this [discussion of constitutional interpretation] is Chief Justice Marshall's famous statement that 'it is a constitution we are expounding.’ We should not expect to treat the Constitution as if it were any ordinary text. But Chief Justice Marshall's dictum is just the starting point. The idea is to see, as best we can, what we are doing when we ‘expound’ the Constitution. Expounding the U.S. Constitution means operating in a mixed system that comprises precedent as well as the text, and in which provisions of the Constitution often, as I have suggested, seem to function roughly in the same way as precedents.” (quoting McCulloch v. Maryland,
. See Douglass, supra note 6, at 1985 (“The Court’s Sixth Amendment ruling is remarkable for its brevity and, I suggest, for its shallow analysis. The portion of the opinion dealing with the Sixth Amendment occupies only two paragraphs. It makes no mention of the constitutional text. It says nothing of the history, origin, and purpose of the Sixth Amendment right to a jury. It makes no attempt to explain, distinguish, or limit Witherspoon.... [T]he sum of Spaziano's Sixth Amendment analysis is merely that (a) the principal issue in capital sentencing is essentially the same as ordinary sentencing, and (b) there has never been a right to a jury for ordinary sentencing.”).
. See Proffitt,
. See, e.g., Hoffman, supra note 6, at 985-90; Iontcheva, supra note 17, at 356-60. As our own state's experience since Funnan shows, reductions in the role of the jury have not been inspired by any error-reducing motive, but instead to make it easier for the state to obtain a death a sentence, See supra note 143 and accompanying text. Scholars suggest that this has also been a factor in other states’ impingement on juries’ ability to make the ultimate life or death decision. See, e.g., Smith, supra note 48, at 294.
. Douglass, supra note 6, at 2022.
. See Smith, supra note 48, at 364-65 (“Theoretically, capital sentencing proceedings can be disaggregated into two discrete issues: whether the defendant's crime is eligible for the death penalty (aggravation) and, if so, whether the defendant nonetheless lacles the moral culpability necessary for the ultimate sanction (mitigation). In the real world of litigation, however, the two issues are not so neatly divided. Rather, the issue at any capital sentencing hearing is the singular one of whether or not the defendant should be put
.See Douglass, supra note 6, at 1972-73 ("Unitary capital trials were,pie norm when the Sixth Amendment was created.... Bifurcation — separating the guilt determination from the choice of an appropriate penalty— was a procedure that evolved after the founding, initially for noncapital sentencing. Bifurcation spread as popular resistance to the death penalty and the corresponding rise of a prison system gave judges new options and new powers in fixing sentences. Bifurcation came to capital cases quite late in our history, primarily in response to the Court’s Eighth Amendment decisions in the mid-1970s, My point in reviewing this history is not that bifurcation is a bad idea, nor that we must try capital cases today as we did in 1791. My point is simply that the separation of trial from capital sentencing is a post-constitutional idea that was born from a movement away from capital punishment, not as a means to implement it. We cannot assume, as the Court seems to have done, that separation of trial and sentencing is part of the natural order of things, or that the ‘trial rights’ of the Sixth Amendment were conceived with such a separation in mind.”); supra notes-52, 96, 218 and accompanying text.
. See Eddings,
. See supra note 240 and accompanying text.
. See Furman,
. See, e.g., Bell v. Cone,
. See, e.g., Mitchell v. United States,
. See Woodward,
. See Apprendi,
. Compare Harris,
. — U.S. -,
. See id, at 2158..
. See id. at 2161.
. See Hurst,
. In concluding this for myself, I again acknowledge that Hurst can be read in different ways, and respect that one of my learned colleagues who concurs in part in the result we reach views Hurst as extending only to those findings that aggravate in favor of a death sentence, and not to those that mitigate against them. Our difference in this respect is not as important as the effect of our shared agreement, which is that findings beyond the mere eligibility stage are necessary before a defendant can be sentenced to death under our statute, and that those findings must be made by a jury under the logic of Hurst. My principle disagreement with my colleague is that I believe that the role of the jury in the death penalty process has long encompassed all the factors bearing on the appropriate punishment, and that frequent references to the role of the jury in exercising its conscience and sense of mercy cannot be explained solely by the jury’s role in deciding facts in the strict sense of'how a crime was committed. Instead, I believe it extended to all factors, including those personal to the defendant, bearing on the jury’s sense of the blame-worthiness of the crime and the fitting punishment for it. See, e.g., Winston,
. Blakely,
. For example, it is possible to form this gotcha syllogism that has the effect of grounding a holding that a unanimous jury verdict
.See, e.g., Hoffman, supra note 6; Iontche-va, supra note 17; Sam ICamin & Justin Marceau, The Facts About Ring v. Arizona and the Jury's Role in Capital Sentencing, 13 U. Pa, J, Const. L. 529 (2011); Betrall L. Ross II, Reconciling the Booker Conflict: A Substantive Sixth Amendment in a Real Offense Sentencing System, 4 Cardozo Pub. L. Pol'y & Ethics J. 725 (2006).
.
. Id. at 178-79,
. This, of course, is exactly why several Justices have focused on death eligibility factors being considered as an element of a crime, and that the jury right only extends to having the jury decide all the facts necessary to make a defendant eligible to be executed. They rationalize this by saying that all are on notice of the criminal laws, and if the criminal laws say that if you do X crime, the range of punishment is Y, then your jury trial right is fully preserved if you are not exposed to Y until a jury says you should be. See supra note 218 (discussing Justice Scalia’s view on this
. See, e.g., Hoffman, supra note 6, at 1009-10 (advocating for jury sentencing in capital cases without the arbitrary sentencing in death cases that existed before Furman).
. See, e.g., Ring,
. See supra note 240 and accompanying text.
. See, e.g., South Dakota v. Dole,
. See, e.g., Crawford v. Washington,
. See Spaziano,
. Douglass, supra note 6, at 1974; see also id. at 2012-15; Lillquist, supra note 6, at 650; Hoffman, supra note 6, at 964.
. Adriaan Lanni, Jury Sentencing in Non-capital Cases: An Idea Whose Time Has Come (Again)?, 108 Yale L.J. 1775, 1800 (1999).
. James Wilson, Lectures of James Wilson, in 2 Collected Works of James Wilson 1008-09 (Kermit L. Hall & Mark David Hall, eds., 2007)
. See Hurst,
. As amicus points out, the requirement of a unanimous jury was settled as of the time of our founding as a nation. See C. H. Houston Br. at 4-5; see also 1 John Adams, A Defence of the Constitutions of Government of the United States of America 376 (1797) (“[I]t is the unanimity of the jury that preserves the rights of mankind...James Wilson, The Works of the Honourable James Wilson, L.L.D. 350 (1804) ("To the conviction of a crime, the undoubting and the unanimous sentiment of the twelve jurors is of indispensable necessity. ... [T]he consequence unquestionably is, that a single doubt or single dissent must produce a verdict of acquittal.”); Claudio v. State,
. See Parker v. Dugger,
. The Delaware statute in its current form also has another potential problem, which is related to these two points. That is, it distances the role of the jury from the actual decision about life or death, by stating the juty only has to make a-finding of whether a certain aggravator exists and whether the aggravating factors outweigh the mitigating factors, under a preponderance standard. An academic study of the reflections of actual jurors in eight Delaware death penalty cases found that Delaware's approach of having the jurors simply vote on whether the aggravating or mitigating factors predominate had the effect of distancing jurors from having a sense of responsibility that their vote was actually one about life or death. The scholars believed the data “suggest[ed] that capital jurors in Delaware are not taking their sentencing responsibilities seriously” and “take mental strides to effectively distance themselves as much as possible from the sentencing decision." Kleinstuber, supra note 205, at 340; see also id. at 325 ("Further divesting Delaware capital jurors of a sense of responsibility for their decisions, they are not actually asked whether or not the defendant should be sentenced to death.”). For these reasons, it is arguable under the Sixth Amendment that a jury must deliver a sentencing verdict, in which it specifically imposes either a death sentence or the altera-tive prison sentence. Either that, or the jury must be told that it always has an option to exercise mercy and that if its sense of mercy counsels for the less harsh penalty, it may and should find that the mitigators outweigh the aggravators. Consistent with that, the
. See Capano v. State,
. See supra notes 27, 42 and accompanying text.
. See Smith, supra note 48, at 244 ("More than four decades of social science research indicates that unanimous juries deliberate longer, discuss and debate the evidence more thoroughly, and are more tolerant and respectful of dissenting voices. Non-unanimous decision rules also tend to promote perilous racial dynamics.”); see also Zylstra,
. The unanimity requirement has long been celebrated as an important protective safeguard for a defendant’s rights, precisely because it makes every voice in the juiy room of critical importance, and thereby has been seen as ensuring that the ultimate outcome is a good proxy for how the larger community would decide the matter if that were feasible. See Andres,
.I acknowledge the odd cases of Apodaca v. Oregon,
. See Linda E. Carter, A Beyond a Reasonable Doubt Standard in Death Penalty Proceedings: A Neglected Element of Fairness, 52 Ohio St. L.J. 195, 204-05 (1991); Erik Lillquist, Absolute Certainty and the Death Penalty, 42 Am. Crim. L. Rev. 45, 47-53 (2005).
. See supra notes 17-19 and accompanying text (jury’s historical role in acquitting guilty defendants they believed should not suffer death when that was the penalty); supra notes 20t23 and accompanying text (degrees of murder and lesser included offenses arose in part to give the jury an option to convict a defendant of a lesser crime when guilty of a first degree murder for which death was the mandatory penalty, when they could not reach an agreement unanimously and beyond a reasonable doubt that death was the fitting punishment).
. See United States v. Gabrion,
. In so concluding, I acknowledge that ;•post-Furman case law does not apply the beyond a reasonable doubt standard, to the ultimate sentencing phase of a capital trial, and that this Court's own decision in State v. Cohen took that approach. See Cohen,
. -U.S. -,
.
. Spaziano,
Concurrence Opinion
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,
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?
The answer to question one is no. In Hurst, the United States Supreme Court held that: “The Sixth Amendment requires a jury, not a judge, to find each fact neces
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.”
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.’”
In Kansas v. Carr,
The Delaware death penalty statutes requires the State to give “[njotice in writing of any aggravating circumstances [statutory and non-statutory] ... prior to the punishment hearing, and after the verdict on guilt.”
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.
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 Sixth Amendment guarantee to the right to a trial by jury: “[T]he historical foundation for our recognition of these principles extends down centuries into the common law. ‘[T]o guard against a spirit of oppression and tyranny,’ ... trial by jury has been understood to require that ‘the truth of every accusation ... be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbours..., ”
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 11 Del. C. § 4209, this is the critical finding upon which the sentencing judge “shall impose a sentence of death”?
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.
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 Sixth Amendment purposes.
In 2003, in Brice v State,
The only constitutional infirmity at issue in Ring and Hurst was the judicial determination of aggravating circumstances. On the other hand, Woodward v. Alabama,
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 Ap-prendi 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 Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.”
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 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 of 11 Del. C. § 4209, and the Court proceed with instructions to the jury that comport with federal constitutional standards?
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. Florida,
1. 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-statu-toiy, that has been alleged by the*488 State for weighing in the selection phase of a capital sentencing proceeding? Answer. Negative.
2. 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 (asa matter of federal law only, and not Delaware constitutional law, which requires unanimity); affirmative as to the burden of proof.
3. 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”? Answer: Negative.
4. 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 k is inapplicable.
5.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 of 11 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. Arizona.
In my view, 11 Del. C. § 4209 complies with the Sixth Amendment to the United States Constitution so long as the judge finds and relies upon only those aggravating circumstances found by the jury beyond a reasonable doubt. To the extent that it permits the death penalty to be imposed as a result of aggravating circumstances found only by the judge, and not the jury, then our statute runs afoul of Hurst.
There is no question that the Delaware statute permits the trial court to find aggravating factors that were never found by the jury.
The following hypothetical illustrates how 11 Del. C. § 4209 may run afoul of Hurst in the instance where a judge finds an aggravating factor, or multiple aggravating factors, not found by the jury. Assume the defendant is convicted of first-degree murder by a jury that later finds the existence of one statutory aggravating factor unanimously and beyond a reasonable doubt. The jury recommends a life sentence. The judge, without hearing any new evidence, finds three aggravating circumstances not found by the jury and gives de minimis or no weight to the aggravating factor found by the jury. She concludes that the aggravating circumstances that she found outweigh the mitigating circumstances. The judge imposes a sentence of death, ovemding the jury’s advisory recommendation primarily on the basis of the three aggravators that she found.
In my hypothetical, the court’s three independent factual findings of aggravating circumstances were “necessary for imposition of the death penalty.”
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,
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).”
In 2013, in Alleyne v. United States,
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.”
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 the 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 ease upholding the constitutionality of the post-Amy variant of 11 Del. C. § 4209, Brice v. State;
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,
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,
In McDonald v. City of Chicago,
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
With respect to the burden of proof, the Sixth Amendment, as interpreted in Ap-prendi, Ring, and Hurst, requires that “[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.”
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 Hild-win only in part. Hurst leaves undisturbed the United States Supreme Court’s clear statement in Spaziano that “the Sixth Amendment does not require jury sentenc
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 Sotoma-yor, has explicitly addressed the weighing function in a separate opinion dissenting from the denial of certiorari in Woodward v, Alabama.
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 Ap-prendi 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 11 Del. C. § 4209, stated that weighing is a judicial function under our statutory scheme, I cannot embrace a reading of Hurst — in the face of unambiguous United States Supreme Court precedent to the contrary — that would subvert our General Assembly’s clear intent to have judges be the ultimate sentencing authority. I explain each of these points more fully below.
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.”
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.”
2. Hurst Overrules Spaziano Only in “Relevant Part” and Does Not Address Proffitt
Hurst overruled Spaziano and Hildmn “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.”
In Proffitt v. Florida,
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.
To illustrate, in 1991, Delaware’s legislature amended 11 Del. C. § 4209 to effect a change from jury sentencing to judge sentencing. The synopsis of that amendment to the statute states:
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.
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.
IY. 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 the integral nature of the provisions of 11 Del. C. § 4209 that involve the findings of aggravating circumstances, the needed correction cannot be adequately addressed with jury instructions.
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,
Nor is what the Delaware Constitution may require the subject of the certified
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 Schád v. Arizona,
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 con-troveisial 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 11 Del. C. § 4209 without a clear directive from the United States Supreme Court.
. Id. at 619.
. Rauf v. State, No. 39, 2016 (Del. Jan. 28, 2016) (ORDER).
. Hurst,
.
. Hurst,
. Id.
. Id. at 622.
. Id. (quoting Fla. Stat. § 775.082(1)).
. — U.S. —-,
. Id. at 642.
.
.
. Hurst,
. llDeZ. C. § 4209(c).
. 11 Del. C. § 4209(c)(3)(b.l) (emphasis added).
. Id. (emphasis added),
. See id.; Hurst,
. 11 Del. C. § 4209(d)(1),
. Apprendi,
.
. Johnson v. Louisiana, 406 U.S. 356, 369-80,
. See McDonald v. City of Chicago,
. Apprendi,
. Claudio v. State,
. Hurst,
. Ring,
. Brice v. State,
. Id.
. Hurst,
. Id., (internal quotations marks and alterations omitted). Accord 11 Del. C. § 4209(d)(1).
. Del. H.B. 287 syn., 142nd Gen. Assem., 74 Del. Laws ch. 174 (2003).
. See Hurst,
.
. Id. at 322.
. Id.
. Id. at 319.
. Hurst,
. -U.S.-,
. Id. at 406.
. Id. at 410-11 (Sotomayor, J., dissenting).
. Hurst,
. Id. at 622.
. — U.S. -,
.
. Hurst,
. Id. at 624.
. Id. at 619.
. Id. at 621-22. The Hurst Court summarized Ring as follows:
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 to death. An Arizona jury had convicted Timothy Ring of felony murder. Under state law, “Ring could not be sentenced to death, the statutory maximum penalty for first-degree murder, unless further findings were made.” Specifically, a judge could sentence Ring to death only after indepen*489 dently finding at least one aggravating circumstance. Ring’s judge followed this procedure, found an aggravating circumstance, and sentenced Ring to death.
The Court had little difficulty concluding that " ‘the required finding of an aggravated circumstance exposed Ring to a greater punishment than that authorized by the jury’s guilty verdict.’ ” Had Ring’s judge not engaged in any factfinding, Ring would have received a life sentence. Ring’s death sentence therefore violated his right to have a jury find the facts behind his punishment.
Id. at 621 (internal citations omitted).
.
.
. Hurst,
. Id. at 624 (emphasis added).
. See id. at 619. The United States Supreme Court has made clear that the determination as to whether aggravating circumstances exist is “purely factual.” Kansas v. Carr, — U.S. -,
. Under 11 Del. C. § 4209, the sentencing judge cannot impose the sentence of death unless the jury "first finds unanimously and beyond a reasonable doubt the existence of at least 1 statutory aggravating circumstance. ...” 11 Del. C. § 4209(d)(1). However, if a jury finds unanimously and beyond a reasonable doubt the existence of at least one statutory aggravating circumstance, the court, "after considering the findings and recommendation of the jury and without hearing or reviewing any additional evidence, shall impose a sentence of death if the Court finds by a preponderance of the evidence” that the "aggravating circumstances found by the Court to exist outweigh the mitigating circumstances found by the Court to exist.” Id. (emphasis added). "Otherwise, the Court shall impose a sentence of imprisonment for the .remainder of the defendant's natural life without benefit of probation or parole or any other reduction.” 11 Del. C. § 4209(d)(2)..
.
.
. See Ploof,
. Apprendi v. New Jersey,
. Hurst,
. Hurst,
. See 11 Del. C. § 4209(d)(l)-(2).
. Hurst,
.
. Id. at 490,
.
. Id. at 303,
. Id. at 304,
. Id.
. — U.S.-,
.
. Alleyne,
. Id. at 2155 (quoting 18 U.S.C. § 924(c)(1)(A)) (internal quotation marks omitted).
. The Alleyne Court was careful to point out that their ruling “does not mean that any fact that influences judicial discretion must be found by a jury,” since the Supreme Court has “long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment,” Id. at 2163 (citing Dillon v. United States,
. Id. at 2161 (internal citations omitted).
. Id. at 2162; see also id. at 2162-63 ("The essential point is that the aggravating fact produced a higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and aggravated crime. It must, therefore, be submitted to the jury and found beyond a reasonable doubt.”).
. Id. at 2162 (citations omitted); see also Blakely,
. See Alleyne,
.
. Id. at 322.
. Hurst,
. See supra note 12.
. Hurst,
. See Claudio v. State,
.
. See Johnson v. Louisiana,
. Apodaca,
. Id.
.
. Id. at 766 n.14,
. Id.; see also Richardson v. United States,
. See Brief for Petitioner at 45-47, Hurst v. Florida, - U.S. -,
. This Court has provided that "it is untenable to conclude that the right to trial by jury in the Delaware Constitution means exactly the same thing as that right in the United , States Constitution.” Claudio,
. Ring,
. Hurst,
. Carr,
. See Ring,
. Compare Hurst,
. — U.S.-,
. Id. (emphasis added) (internal citations omitted).
. Libretti v. United States,
. Spaziano,
. Id. at 462-63,
. Ring,
. Various concurring and dissenting opinions have expressed support for jury sentencing in capital cases, but, to date, jury sentencing has not garnered majority support on the United States Supreme Court. See, e.g., Hurst,
.Hurst,
. Ring,
.
. See id. at 252,
. Id. (citing Witherspoon v. Illinois,
. See, e.g., Clemons,
. Hurst,
. Indeed, the Supremacy Clause of Article VI of the United States Constitution makes clear that federal constitutional rights supersede any contrary State laws: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2.
.A requirement of such clarity before mandating State officials to alter their statutory schemes exists, relatedly, in other contexts, such as addressing ambiguities in federal statutes. See Bond v. United States, —— U.S.-,
. S.B. 79, 136th Gen. Assemb., 2d Sp. Sess., 68 Del. Laws ch. 189 (Del. 1991) (citing Proffitt,
. S.B. 449,, 141st Gen. Assemb., 2d Reg. Sess., 73 Del. Laws ch. 423 (Del. 2002) ("This Act will conform Delaware’s death penalty sentencing procedures to the new rule announced by the United States Supreme Court in Ring v. Arizona." (italics added)).
. H.B, 287, 142nd Gen. Assemb,, 1st Reg. Sess., 74 Del, Laws ch, 174 (Del, 2003).
. Id.
. Cf. 1 Del. C. § 308 ("If any provision of this Code or amendments hereto, or the application thereof to any person, thing or circumstances is held invalid, such invalidity shall not affect the provisions or application of this Code or such amendments that can be given effect without the invalid provisions or application, and to this end the provisions of this Code and such amendments are declared to be severable,”).
. — U.S.-,
. Id. at 2739 (citing Baze v. Rees, 553 U.S, 35, 47,
. U.S. Const, amend. V ("No person shall ... be deprived of life ... without due process of law_”); see also Glossip,
.
. Id. at 638,
. Id. (quoting Patterson v. New York,
. Kirksey v. Alabama, — U.S. -,
. Glossip,
Dissenting Opinion
dissenting:
I am not persuaded that Hurst v. Florida
For me, the analysis in this case begins with Apprendi v. New Jersey
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.”
In his concurrence in Ring, Justice Sca-lia 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....”
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,
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.”
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.”
The analysis the Ring Court applied to Arizona’s sentencing scheme applies*504 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 juiy 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 statute
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*505 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.”
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 . Sealia: 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 Sealia, refers to death eligibility and not the determination of the sentence:
[Attorney for Timothy Lee Hurst]: Justice Sealia — exactly. And, Justice Sealia, 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.
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,
The Court in Hurst did nothing more than apply its previous holdings in Ap-prendi 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.
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:
1. Yes, so long as the jury has first found the existence of at least one statutory aggravating factor unanimously and beyond a reasonable doubt;
2. Given my answer to Number 1, my answer to Number 2 is No;
3. No;
4. Given my answers to the previous questions, my answer to Number 4 is No; and
5. Given my answers to the previous questions, Number 5 is not applicable. I do agree that 11 Del. C. § 4209 is not severable.
. — U.S. -,
.
.
. Apprendi,
. Ring,
.Id. at 592,
. Id. at 593,
. Id. at 597,
. Id.
. Id. at 589,
.
. Ring,
. Id. at 612,
.
. Ring,
. Hurst,
.
.
. Hurst,
. Id. at 621-22.
. Id. at 620-21 (citations omitted).
. Id. at 622 (internal quotation marks omitted).
. Hurst v. Florida, — U.S. ——,
. Hildwin,
. Brief of Petitioner at 25, Hurst v. Florida, -U.S.-,
. Id.
. Transcript of Oral Argument at 3, Hurst v. Florida, — U.S. -,
. Id. at *4.
. Id. at *12.
. See Kirksey v. Alabama, — U.S.-,
. Ex parte McGriff,
. Id. at 1038.
.
.Id. at *6.
. Id. at *13.
. Woodward v. Alabama, — U.S.-,