EFiled: Aug 02 2016 02:35PM EDT
Filing ID 59361522
Case Number 39,2016

IN THE SUPREME COURT OF THE STATE OF DELAWARE
BENJAMIN RAUF,
Defendant-Appellant,
v.
STATE OF DELAWARE,
Plaintiff-Appellee.

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No. 39, 2016
Certification of Question of Law
from the Superior Court
of the State of Delaware
Cr. ID No. 1509009858

Submitted: June 15, 2016
Decided:
August 2, 2016
Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and
SEITZ, Justices, constituting the Court en Banc.
Certification of questions of law from the Superior Court. Questions answered.
Santino Ceccotti, Esquire (Argued), Ross A. Flockerzie, Esquire, David C.
Skoranski, Esquire, Office of the Public Defender, Wilmington, Delaware for
Appellant.
Elizabeth R. McFarlan, Esquire, John R. Williams, Esquire, Sean P. Lugg, Esquire
(Argued), Delaware Department of Justice, Wilmington, Delaware for Appellee.
Elena C. Norman, Esquire, Kathaleen St. J. McCormick, Esquire, Nicholas J.
Rohrer, Esquire, Young Conaway Stargatt & Taylor LLP, Wilmington, Delaware;
Marc Bookman, Esquire, Atlantic Center for Capital Representation, Philadelphia,
Pennsylvania, Amicus Curiae for the Atlantic Center for Capital Representation.
Jeffrey S. Goddess, Esquire, Rosenthal, Monhait & Goddess, P.A., Wilmington,
Delaware; G. Ben Cohen, Esquire, The Promise of Justice Initiative, New Orleans,
Louisiana, Amicus Curiae for the Charles Hamilton Houston Institute for Race and
Justice.
Richard H. Morse, Esquire, American Civil Liberties Union Foundation of
Delaware, Wilmington, Delaware; Cassandra Stubbs, Esquire, Brian W. Stull,

 Esquire, American Civil Liberties Union Capital Punishment Project, Durham,
North Carolina, Amicus Curiae for the American Civil Liberties Union Foundation
of Delaware and the American Civil Liberties Union Capital Punishment Project.

 PER CURIAM of Chief Justice Strine, Justice Holland, and Justice Seitz:
The State has charged the Defendant, Benjamin Rauf with one count of First
Degree Intentional Murder, one count of First Degree Felony Murder, Possession
of a Firearm During those Felonies, and First Degree Robbery. The State has
expressed its intention to seek the death penalty if Rauf is convicted on either of
the First Degree Murder counts. On January 12, 2016, the United States Supreme
Court held in Hurst v. Florida that Florida‘s capital sentencing scheme was
unconstitutional because ―[t]he Sixth Amendment requires a jury, not a judge, to
find each fact necessary to impose a sentence of death.‖1 On January 25, 2016, the
Superior Court certified five questions of law to this Court for disposition in
accordance with Supreme Court Rule 41.

On January 28, 2016, this Court

accepted revised versions of the questions certified by the Superior Court and
designated Rauf as the appellant and the State as the appellee.2
In this case, we are asked to address important questions regarding the
constitutionality of our state‘s death penalty statute. The Superior Court believed
that Hurst reflected an evolution of the law that raised serious questions about the
continuing validity of Delaware‘s death penalty statute.

Specifically, Hurst

prompted the question of whether our death penalty statute sufficiently respects a
defendant‘s Sixth Amendment right to trial by jury.
1
2

136 S. Ct. 616, 619 (2016).
Rauf v. State, No. 39, 2016 (Del. Jan. 28, 2016) (ORDER).

1

 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?

2

 No. Because Delaware‘s capital sentencing scheme allows the judge to do
this,3 it is unconstitutional.
Question Two
If the finding of the existence of ―any aggravating circumstance,‖ statutory
or non-statutory, that has been alleged by the State for weighing in the selection
phase of a capital sentencing proceeding must be made by a jury, must the jury
make the finding unanimously and beyond a reasonable doubt to comport with
federal constitutional standards?
Yes. The jury must make the finding unanimously and beyond a reasonable
doubt.

Because the Delaware death penalty statute does not require juror

unanimity,4 it is unconstitutional.

3

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.‖).
4
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.‖).

3

 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,5 it is unconstitutional.
Question Four
If the finding that the aggravating circumstances found to exist outweigh the
mitigating circumstances found to exist must be made by a jury, must the jury
make that finding unanimously and beyond a reasonable doubt to comport with
federal constitutional standards?
Yes. We answer question four in the identical manner in which we have
answered question two.
Question Five
If any procedure in 11 Del. C. § 4209‘s capital sentencing scheme does not
comport with federal constitutional standards, can the provision for such be

5

See supra note 3.

4

 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.

5

 STRINE, Chief Justice, concurring in the Majority per curiam, with whom Justice
HOLLAND and Justice SEITZ join:
I.
I join with a majority of my colleagues in concluding that Delaware‘s
current death penalty statute conflicts with the Sixth Amendment of the United
States Constitution. The importance and complexity of the subject before us is
illustrated by the somewhat different ways that each of us approach how the
questions put to us should be answered and why they should be answered ―yes,‖
―no,‖ or not answered in part. I agree with the succinct answers given to the five
certified questions before us in the Majority‘s per curiam opinion, in which I
happily and fully join.

The questions posed involve the application of a

fundamental constitutional right that is easy to state—the right to a trial by a jury—
but that has been the subject of complex judicial explication during the past
forty-four years since Furman v. Georgia1 made the administration of the death
penalty a constant subject of federal constitutional rulings. Given these decisions
and the compelling importance of the subjects we now must address, I therefore
burden the interested reader with an explanation of how I reached the answers I
did. The core of my reasoning, however, is as follows.
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
1

408 U.S. 238 (1972).

1

 the factual findings in capital sentencing—including balancing those factors for
itself in assessing whether death is the appropriate punishment—and, if so, whether
the jury must make such findings unanimously and beyond a reasonable doubt.
Although I acknowledge that the meaning of Hurst v. Florida2 is contestable, it
states that ―[t]he Sixth Amendment requires a jury, not a judge, to find each fact
necessary to impose a sentence of death.‖3 A combination of settled U.S. Supreme
Court cases makes it impossible for a state to enact a statute under which a
defendant must receive the death penalty if he is convicted. Rather, even if a jury
unanimously finds that a defendant is guilty of a crime that is punishable by
death—by for example, finding that a defendant has committed a particular type of
murder for which the legislature has said death is a possible penalty—additional
findings must be made. To sentence a defendant to death, the sentencing authority
must consider all relevant factors bearing on whether the defendant should live or
die, weigh those factors rationally against each other, and make an ultimate
determination of whether the defendant should die or receive a comparatively more
merciful sentence, typically life in prison. The option for the sentencing authority
to give a prison sentence, rather than a death sentence, must always exist. After
consideration of these factors and a determination that the balance of the relevant

2
3

136 S. Ct. 616 (2016).
Id. at 619.

2

 factors weighs in favor of a death sentence, the defendant cannot receive a death
sentence.
For these reasons, if the core reasoning of Hurst is that a jury, rather than a
judge must make all the factual findings ―necessary‖ for a defendant to receive a
death sentence,4 then Delaware‘s statute cannot stand.

Because our General

Assembly has acted with alacrity to address the mandates of the U.S. Supreme
Court, our statute necessarily mandates a fact-intensive inquiry at the ultimate
stage of sentencing, in which the factors that aggravate toward a death sentence
and mitigate against it are considered and weighed.

This application of the

sentencing authority‘s judgment, conscience, and experience to the facts of record
is what drives the ultimate decision whether the defendant should live or die.
Without that exercise, no defendant can receive a death sentence consistent with
the principles established by U.S. Supreme Court cases pre-dating Hurst.
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

4

Id. at 624.

3

 the central reasoning of Hurst and its predecessors such as Apprendi v. New
Jersey,5 embraces this narrow approach.
For myself, however, I find it impossible to embrace a reading of Hurst that
judicially draws a limit to the right to a jury in the death penalty context to having
the jury make only the determinations necessary to make the defendant eligible to
be sentenced to death by someone else, rather than to make the determinations
itself that must be made if the defendant is in fact to receive a death sentence. I am
unable to discern in the Sixth Amendment any dividing line between the decision
that someone is eligible for death and the decision that he should in fact die. The
post-Furman jurisprudence has created a regime governing death penalty cases that
is intricate in design and often in tension with itself.

Candor requires an

acknowledgment that that jurisprudence, although no doubt well-intended, has
helped impel a reduction in the historical role of American juries in the death
sentencing process in a small number of states, including our own.
At the beginning of our Republic and throughout most of its history,
defendants did not go to the gallows unless juries said they should. And the role of
the jury was seen as especially important when a defendant‘s life was in the
balance, because it made sure that a defendant would suffer the ultimate
punishment only if twelve members of the community deliberated together and

5

530 U.S. 466 (2000).

4

 unanimously concluded that should be so. To me, Hurst and its predecessors
surface a reality that had been somewhat obscured in the development of the law in
the decades since Furman, which is that the Sixth Amendment right to a jury is
most important and fundamental when the issue is whether a defendant should live
or die. As the U.S. Supreme Court has long recognized, death is different. The
proposition that any defendant should go to his death without a jury of his peers
deciding that should happen would have been alien to the Founders, and starkly out
of keeping with predominant American practices as of the time of Furman itself.
The cost of useful precedent mandating that each defendant who commits a capital
offense must also be accorded a rational sentencing proceeding that must include a
careful consideration of those factors weighing in favor of mercy does not have to
include depriving the defendant of the fundamental protection of a jury having to
make the final judgment about his fate. If the right to a jury means anything, it
means the right to have a jury drawn from the community and acting as a proxy for
its diverse views and mores, rather than one judge, make the awful decision
whether the defendant should live or die.
I therefore give Hurst its plain meaning and concur in the per curiam
opinion‘s answers to the questions before us. Under our statute that faithfully
respects the requirement to consider all relevant sentencing factors and allow a
death penalty only after those factors are weighed and the option for mercy is
5

 considered, findings beyond the eligibility stage are necessary if a defendant is to
receive a death sentence. Thus, our statute cannot stand. And to put my opinion in
more basic terms, I embrace the notion that the Sixth Amendment right to a jury
extends to all phases of a death penalty case, and specifically to the ultimate
sentencing determination of whether a defendant should live or die. Although
states may give judges a role in tempering the harshness of a jury or in ensuring
proportionality, they may not execute a defendant unless a jury has unanimously
recommended that the defendant should suffer that fate.
I also note that this same result can be reached by a more oblique and
alternative route, which is holding that the practice of executing a defendant
without the prior unanimous vote of a jury is so out of keeping with our history as
to render the resulting punishment cruel and unusual. The jury‘s historical role as
an important safeguard against overreaching in this most critical of contexts was
recognized at the founding, and prevails in most states today, making our own state
one of the few outliers. Hurst recognizes the centrality of the jury‘s historic role,
and my opinion gives effect to that recognition.
Consistent with this reasoning, I also conclude that the Delaware death
penalty statute is inconsistent with the Sixth Amendment to the extent that it does
not require a unanimous jury to make the key discretionary findings necessary to
impose a death sentence by employing a beyond a reasonable doubt standard.
6

 From the inception of our Republic, the unanimity requirement and the beyond a
reasonable doubt standard have been integral to the jury‘s role in ensuring that no
defendant should suffer death unless a cross section of the community
unanimously determines that should be the case, under a standard that requires
them to have a high degree of confidence that execution is the just result.
II.
To explain how I address the certified questions and the U.S. Supreme Court
cases that occasion the certified questions before us, it is critical to understand, at
least in rough outline, how we as a nation and state got to where we are in the
administration of the death penalty, and how different things look from when our
nation was founded. By necessity, my recitation of this process is truncated,
involves some simplification of a very complicated subject, and is compromised by
the reality that I am a judge, and do not claim to be a historian. That said, I am
aided by the many scholars and lay commentators who have lucidly outlined the
basic directional facts.6

6

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).

7

 At the beginning of our Republic, prisons of the kind we now have, where
many defendants spend lengthy periods of their lives, were unknown.7 Instead,
nearly all felonies carried mandatory death sentences,8 as was traditional in
England—the primary example upon which our criminal justice system was built. 9
Because of greater American antipathy toward the death penalty, however,
American criminal statutes had already begun to narrow the long list of crimes for
which death was the mandatory sentence.10

For example, in the 1790s,

Pennsylvania became the first state ―to alleviate the undue severity of the law by
confining the mandatory death penalty to ‗murder of the first degree,‘‖ 11 a trend
that would gain momentum.12

7

See United States v. Grayson, 438 U.S. 41, 45 (1978), superseded by statute, Sentencing
Reform Act of 1984, 18 U.S.C. § 3551 et seq., 28 U.S.C. §§ 991–998, as recognized in Barber v.
Thomas, 560 U.S. 474 (2010); Lillquist, supra note 6, at 641–43.
8
See Woodson v. North Carolina, 428 U.S. 280, 289 (1976); EVAN J. MANDERY, CAPITAL
PUNISHMENT IN AMERICA: A BALANCED EXAMINATION xxi (2d ed. 2012).
9
See Douglass, supra note 6, at 1977–78.
10
See Woodson, 428 U.S. at 289; John W. Poulos, The Supreme Court, Capital Punishment and
the Substantive Criminal Law: The Rise and Fall of Mandatory Capital Punishment, 28 ARIZ. L.
REV. 143, 200 (1986).
11
Woodson, 428 U.S. at 290; see also HUGO ADAM BEDAU, THE DEATH PENALTY IN AMERICA:
CURRENT CONTROVERSIES 4 (1997).
12
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).

8

 From the beginning of our nation‘s history, the jury‘s role as the sentencer in
capital cases ―was unquestioned.‖13 This was true in Delaware, where juries made
the life or death decision at the beginning of our history. 14 And, without any
exception I have been able to identify, no defendant was put to death in the early
stages of our nation‘s history without a jury making all the necessary
determinations required.15 Of course, it is a bit of a misnomer to say that juries
―sentenced‖ defendants to death. Capital trials were not bifurcated, and ―[t]he
question of guilt and the question of death both were decided in a single jury
verdict at the end of a single proceeding conducted as an adversarial trial.‖ 16 But,
it would be even more inaccurate to say that the jury did not have an important role
in exercising its discretion and conscience in a manner that determined whether the
defendant should live or die.
The starkest way in which juries did this was by acquitting a defendant who
was obviously guilty.17 By this crude action of nullification, a jury could exercise
13

Walton v. Arizona, 497 U.S. 639, 710–11 (1990) (Stevens, J., dissenting) (quoting Welsh S.
White, Fact-Finding and the Death Penalty: The Scope of a Defendant’s Right to Jury Trial, 65
NOTRE DAME L. REV. 1, 10–11 (1989)) (internal quotation marks omitted); see also Ronald F.
Wright, Rules for Sentencing Revolutions, 108 YALE L.J. 1355, 1373 (1999).
14
See, e.g., State v. Baynard, 1 Del. Cas. 662 (O. & T. 1794); State v. Donovan, 1 Del. Cas. 168
(O. & T. 1798); see also State v. Jeandell, 5 Del. 475, 483 (Gen. Sess. 1854).
15
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).
16
Douglass, supra note 6, at 1972.
17
See Woodson, 428 U.S. at 293; see also Roberts v. Louisiana, 428 U.S. 325, 360 (1976)
(White, J., dissenting); Furman v. Georgia, 408 U.S. 238, 298 (1972) (Brennan, J., concurring);
JEFFREY B. ABRAMSON, WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY 217
(1994); VALERIE P. HANS & NEIL VIDMAR, JUDGING THE JURY 149–58 (1986); Jenia Iontcheva,

9

 its conscience by refusing to convict a guilty defendant precisely because the jury
thought that death was too harsh a punishment for the crime. Rather than this
practice of nullification leading to hostility to juries by our founding generation, it
was seen as an example of the bedrock importance of the jury in securing the
liberties of our citizens.18 John Adams, for example, wrote: ―It is not only [the
juror‘s] right, but his duty . . . to find the verdict according to his own best
understanding, judgment, and conscience, though in direct opposition to the
direction of the court.‖19
The practice of nullification also exposed an important community
viewpoint that statute writers began to recognize, which is that crimes could be
serious but yet not be considered so injurious to society as to always warrant a
death sentence. Therefore, as Pennsylvania had done, states increasingly narrowed
the felonies for which death was a mandatory sentence.20 Degrees of murder were
in large measure introduced to allow juries to convict a defendant of a degree of
homicide while not exposing the defendant to death.

And over time, jury

Jury Sentencing as Democratic Practice, 89 VA. L. REV. 311, 321–22 (2003); see also Rachel E.
Barkow, Recharging the Jury: The Criminal Jury’s Constitutional Role in an Era of Mandatory
Sentencing, 152 U. PA. L. REV. 33, 79 (2003); Thomas A. Green, The Jury and the English Law
of Homicide 1200–1600, 74 MICH. L. REV. 413, 430–31 (1976).
18
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.‖).
19
C.F. ADAMS, THE WORKS OF JOHN ADAMS 255 (1865).
20
See supra note 12 and accompanying text.

10

 discretion over sentencing was more candidly introduced, as several states moved
to statutory regimes under which even a defendant convicted of the most serious of
crimes—such as intentional murder—could nonetheless be given a sentence other
than death. In the 1830s and 40s, the first states abandoned mandatory death
sentences even in first degree murder cases and granted juries discretion in capital
sentencing.21 Our own General Assembly divided murder into two degrees in
1852, with first degree murder carrying a mandatory death sentence and second
degree murder carrying various harsh, non-capital sentences.22 This gave the jury
an option to convict, but to exempt the defendant from death if its sense of mercy
moved in that direction.23
About half of the states adopted discretionary statutes by 1900, and even
more states followed soon after.24

In 1899, the U.S. Supreme Court itself

well-summarized some of the key developments:
The hardship of punishing with death every crime coming within the
definition of murder at common law, and the reluctance of jurors to
concur in a capital conviction, have induced American legislatures, in
modern times, to allow some cases of murder to be punished by
imprisonment, instead of by death. That end has been generally
attained in one of two ways: First. In some states and territories,
statutes have been passed establishing degrees of the crime of murder,
requiring the degree of murder to be found by the jury, and providing
that the courts shall pass sentence of death in those cases only in
21

See Woodson, 428 U.S. at 291.
See Del. C. ch. 127 §§ 1, 2 (1852).
23
See State v. Reidell, 14 A. 550, 550 (Del. 1888).
24
See Woodson, 428 U.S. at 291; BEDAU, supra note 11, at 5–6; BYE, supra note 12, at 7–8.
22

11

 which the jury return a verdict of guilty of murder in the first degree,
and sentence of imprisonment when the verdict is guilty of murder in
the lesser degree. . . . Second. The difficulty of laying down exact
and satisfactory definitions of degrees in the crime of murder,
applicable to all possible circumstances, has led other legislatures to
prefer the more simple and flexible rule of conferring upon the jury, in
every case of murder, the right of deciding whether it shall be
punished by death or by imprisonment.25
Some exceptions to the jury tradition emerged, albeit in an unsavory context
that actually underscores the importance of the right to a jury. A few states,
unhappy with the rights accorded to black citizens by the Fourteenth and Fifteenth
Amendments, cut back on unanimity requirements for juries, in order to mute the
voice of newly eligible black jurors.26 But even with these exceptions, the overall
picture was remarkably consistent:

Defendants received death sentences only

25

Winston v. United States, 172 U.S. 303, 310–12 (1899).
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 related 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
(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 jury 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.‖).
26

12

 when the jury determined they should. And that jury determination had to be
unanimous.27
One byproduct of the jury‘s more explicit role in exercising sentencing
discretion over whether a defendant should live or die was the emergence of a
greater judicial role in sentencing defendants convicted by juries of committing a
crime for which death was not a possible sentence. Early in our history, those few
crimes that did not carry the death penalty had relatively short, if any, prison
sentences attached to them.28 As mentioned, the term ―prison‖ was itself not the
right word, as we did not have an institutionalized system for incarcerating
defendants.29 In England and then in the early stages of our Republic, there was a
tradition of sentencing by judges in non-capital, misdemeanor cases.30 As society
determined through law that not all serious crimes should subject defendants to
death and that there needed to be other serious sentencing options to fulfill
objectives such as retribution and even loftier goals such as rehabilitation,
27

See Andres v. United States, 333 U.S. 740, 748 (1948) (―In criminal cases this requirement of
unanimity extends to all issues—character or degree of the crime, guilt and punishment—which
are left to the jury.‖); id. at 763 (Frankfurter, J., concurring) (―The fair significance to be drawn
from State legislation and the practical construction given to it is that it places into the jury‘s
hands the determination whether the sentence is to be death or life imprisonment, and, since that
is the jury‘s responsibility, it is for them to decide whether death should or should not be the
consequence of their finding that the accused is guilty of murder in the first degree. Since the
determination of the sentence is thus, in effect, a part of their verdict, there must be accord by the
entire jury in reaching the full content of the verdict.‖).
28
See JOEL SAMAHA, CRIMINAL PROCEDURE 475 (2011); Corinna Barrett Lain, Furman
Fundamentals, 82 WASH. L. REV. 1, 23 (2007).
29
See supra note 7 and accompanying text.
30
See Wright, supra note 13, at 1374–75; King, supra note 15, at 985–86.

13

 institutions such as so-called ―penitentiaries‖ where defendants could do penance
for their misdeeds emerged.31 Consistent with the tradition that judges had often
decided on the appropriate punishment when life or death was not the binary
choice, judicial sentencing for non-capital offenses became more prevalent.32 And,
when the question was not the stark one of life or death, but the more nuanced one
of what number of years a defendant should spend in prison, judicial expertise was
perhaps seen as valuable.
Before fast-forwarding to the status of these trends in practice as of when
Furman was decided in 1972, another important factor must be considered. This
evolution of practices emerged without intrusion by the federal Judiciary or the
federal Constitution. One cannot find U.S. Supreme Court cases addressing the
constitutionality of the various state approaches to these issues. That is because it
was not until 1932 that the U.S. Supreme Court first began to apply the provisions
in the Bill of Rights protecting criminal defendants to the states.33 And the wave of
cases holding that the Fourteenth Amendment incorporated the procedural
protections of criminal defendants and that the states had to abide by those

31

See United States v. Moreland, 258 U.S. 433, 448 (1922); see also ARTHUR W. CAMPBELL,
LAW OF SENTENCING § 1.2, at 6–9 (3d ed. 2004); Douglass, supra note 6, at 2018.
32
See Hoffman, supra note 6, at 965; Lillquist, supra note 6, at 628–29.
33
See Powell v. Alabama, 287 U.S. 45, 71 (1932).

14

 protections to the same extent as the federal government rose in the era after World
War II and crested in the 1960s.34
Coincident with this wave was a general trend toward making the death
penalty rarer in application. Some states went so far as to abolish the death
penalty.35

Delaware even did that for a brief period, from 1958 to 1961.36

34

See, e.g., In re Oliver, 333 U.S. 257, 271–73 (1948) (incorporating the Sixth Amendment right
to a public trial and to notice of accusations); Wolf v. Colorado, 338 U.S. 25, 27–28, 33 (1949)
(―[T]he security of one‘s privacy against arbitrary intrusion by the police—which is at the core
of the Fourth Amendment—is basic to a free society [and i]t is therefore implicit in ‗the concept
of ordered liberty‘ and as such enforceable against the States through the Due Process Clause.‖),
overruled in part by Mapp v. Ohio, 367 U.S. 643 (1961); Mapp, 367 U.S. at 655–56 (further
incorporating the Fourth Amendment exclusionary rule by holding that ―all evidence obtained by
searches and seizures in violation of the Constitution is . . . inadmissible in a state court‖);
Robinson v. California, 370 U.S. 660, 667 (1962) (incorporating the Eighth Amendment
protection against cruel and unusual punishment); Gideon v. Wainwright, 372 U.S. 335, 342
(1963) (incorporating the Sixth Amendment guarantee of counsel for indigent defendants in
felony cases); Ker v. California, 374 U.S. 23, 34 (1963) (confirming that the Fourth Amendment
protection against unreasonable searches and seizures apply to the states); Malloy v. Hogan, 378
U.S. 1, 10–11 (1964) (incorporating the Fifth Amendment protection against compelled
self-incrimination); Aguilar v. Texas, 378 U.S. 108, 110 (1964) (―[T]he standard for obtaining a
search warrant is [] ‗the same under the Fourth and Fourteenth Amendments.‘‖ (quoting Ker, 374
U.S. at 33)), abrogated by Illinois v. Gates, 462 U.S. 213 (1983); Pointer v. Texas, 380 U.S. 400,
403 (1965) (incorporating the Sixth Amendment right of an accused to confront prosecution
witnesses); Parker v. Gladden, 385 U.S. 363, 364 (1966) (incorporating the Sixth Amendment
right to trial by an impartial jury); Klopfer v. North Carolina, 386 U.S. 213, 222–23 (1967)
(incorporating the Sixth Amendment right to a speedy trial); Washington v. Texas, 388 U.S. 14,
19–20 (1967) (incorporating the Sixth Amendment right to have compulsory process for
obtaining defense witnesses); Duncan v. Louisiana, 391 U.S. 145, 149, 158 (1968)
(incorporating the Sixth Amendment right to a trial by jury in all criminal cases, except for
―petty‖ offenses); Benton v. Maryland, 395 U.S. 784, 796 (1969) (incorporating the Fifth
Amendment protection against double jeopardy); see also Jerold H. Israel, Selective
Incorporation: Revisited, 71 GEO. L.J. 253, 296 (1982) (―The decisions of the 1960‘s had
selectively incorporated all but four of the Bill of Rights guarantees relating to the criminal
justice process: public trial, notice of charges, prohibition of excessive bail, and prosecution by
indictment.‖).
35
See Woodson, 428 U.S. at 291.
36
See State v. Dickerson, 298 A.2d 761, 764 n.6 (Del. 1972); Hugo Adam Bedau, The Death
Penalty in America, 35 FED. PROBATION 32, 32 (1971); Valerie P. Hans et al., The Death
Penalty: Should the Judge or the Jury Decide Who Dies, 12 J. EMPIRICAL L. STUD. 70, 73

15

 Although Delaware then reenacted the death penalty, it did so only for first degree
murder. And the Delaware statute made a death sentence for first degree murder
mandatory but with a safety valve involving the jury. The jury could not only use
the traditional means of convicting of a lesser degree of murder as a way of
avoiding the imposition of a death sentence, but could convict of first degree
murder and recommend mercy and a non-capital sentence to the judge37—a choice
juries did not have in the early years of Delaware‘s death penalty.38 This mercy
safety valve was first instituted in Delaware for murder cases in 1917.39 In giving
juries discretion to exercise mercy, Delaware was consistent with the overall trends
in states that retained the death penalty in the twentieth century.40 But, by allowing
the sentencing judge to disregard that mercy recommendation and instead impose
death, Delaware was nearly alone.41 ―By the end of World War I, all but eight
States, Hawaii, and the District of Columbia either had adopted discretionary death
penalty schemes or abolished the death penalty altogether. By 1963, all of these
(2015); Glenn W. Samuelson, Why Was Capital Punishment Restored in Delaware?, 60 J. CRIM.
L. & CRIMINOLOGY 148, 148 (1969).
37
See 29 Del. C. ch. 266 (1917); see also State v. Thomas, 111 A. 538, 539 (Del. 1920); State v.
Carey, 178 A. 877, 878 (Del. O. &. T. 1935).
38
See Dickerson, 298 A.2d at 764 n.6.
39
See id.
40
See Woodson, 428 U.S. at 289; see also Sheri Lynn Johnson et al., The Delaware Death
Penalty: An Empirical Study, 97 IOWA L. REV. 1925, 1929 (2012).
41
See Andres, 333 U.S. at 758 (Frankfurter, J., concurring) (―In three States a jury‘s
recommendation of life imprisonment is not binding on the trial court: Delaware, New Mexico,
and Utah.‖). It appears that there was only one instance in which a trial judge imposed death
when a jury recommended mercy, and that sentence was overturned on other grounds, depriving
this Court of the chance to address whether that judicial override was proper. See Jenkins v.
State, 230 A.2d 262, 265 & n.1 (Del. 1967).

16

 remaining jurisdictions had replaced their automatic death penalty statutes with
discretionary jury sentencing.‖42
Given the continued centrality of the jury in capital sentencing in the United
States, it was perhaps mundane for the Supreme Court to say in Witherspoon v.
Illinois43 in 1968 that capital juries ―express the conscience of the community on
the ultimate question of life or death.‖44 After all, as of the time Witherspoon was
decided, jury sentencing in capital cases was not only the norm, but was used in all
but two states.45 By contrast, judicial sentencing for non-capital cases had become
prevalent, with prison sentences the primary form of punishment for most serious
crimes. Importantly, it was only in this same time period that the Supreme Court
held in Duncan v. Lousiana46 that the Fourteenth Amendment incorporates the
Sixth Amendment‘s right to a jury trial.47
As of that time, the U.S. Supreme Court had still not held that the
Constitution placed any particular limits on states‘ imposition of the death penalty.
42

Woodson, 428 U.S. at 291–92; see also Andres, 333 U.S. at 759 (Frankfurter, J., concurring);
Brief for the United States as Amicus Curiae at 36, McGautha v. California, 402 U.S. 183
(1971).
43
391 U.S. 510 (1968).
44
Id. at 519.
45
See id. at 525–27 & nn. 2–8; Bryan A. Stevenson, The Ultimate Authority on the Ultimate
Punishment, 54 ALA. L. REV. 1091, 1140 (2003); see also Johnson v. Texas, 509 U.S. 350, 359
(1993); Lockett v. Ohio, 438 U.S. 586, 597–98 (1978); Stephen P. Garvey, ―As the Gentle Rain
From Heaven‖: Mercy in Capital Sentencing, 81 CORNELL L. REV. 989, 996 (1996); Susan R.
Klein & Jordan M. Steiker, The Search for Equality in Criminal Sentencing, 2002 SUP. CT. REV.
223, 262–65; Lillquist, supra note 6, at 648; infra note 228 and accompanying text.
46
391 U.S. 145.
47
See id. at 149; see also Parker, 385 U.S. at 364.

17

 Before then, ―the death penalty was widely authorized‖ and states were not
required by any judicial mandate implementing the federal Constitution to narrow
the class of defendants eligible for death or to otherwise ensure that the death
penalty was not applied in an arbitrary or discriminatory manner.48 Consistent
with the traditional lack of a federal role in these areas, the Supreme Court issued a
decision in 1971 in McGautha v. California,49 holding that a state did not need to
provide capital sentencing juries with any kind of guidance or list of considerations
to use in making the life-or-death determination. The Court explained why:
In light of history, experience, and the present limitations of human
knowledge, we find it quite impossible to say that committing to the
untrammeled discretion of the jury the power to pronounce life or
death in capital cases is offensive to anything in the Constitution. The
States are entitled to assume that jurors confronted with the truly
awesome responsibility of decreeing death for a fellow human will act
with due regard for the consequences of their decision and will
consider a variety of factors, many of which will have been suggested
by the evidence or by the arguments of defense counsel.50
By the beginning of the 1970s, the death penalty was being more sparingly
applied than at any previous time in our nation‘s history, and public support for the
death penalty was relatively low.51 McGautha seemed to signal the Supreme
Court‘s view that juries could, as a general matter, be trusted to exercise the
48

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.
49
402 U.S. 183 (1971), overruled by Crampton v. Ohio, 408 U.S. 941 (1972).
50
Id. at 207–08.
51
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.

18

 awesome power historically entrusted to them of making the life or death decisions
put to them without prescriptive federal judicial guideposts. Likewise, McGautha
seemed to signal that the Supreme Court would allow death penalty law to
continue to evolve based on determinations by state legislatures. But that, of
course, did not turn out to be the case.
III.
The very next year, in 1972, Furman v. Georgia upset the traditions and
destabilized the foundations on which state death penalty statutes stood, causing
some states to respond with approaches that reduced the jury‘s role in the death
penalty sentencing process.52

In Furman, the Supreme Court reviewed two

Georgia Supreme Court decisions, which affirmed death sentences for a defendant
convicted of murder and a defendant convicted of rape, and one Texas Supreme
Court decision, which affirmed a death sentence for a defendant convicted of
rape.53 In each of the death statutes at issue, ―the determination of whether the
penalty should be death or a lighter punishment was left by the State to the
discretion of the judge or of the jury.‖54 Because there was a jury trial in each of

52

See Lockett, 438 U.S. at 598; Smith, supra note 48, at 288–91; Kamin & Marceau, supra note
51, at 986–87; James S. Liebman, Slow Dancing With Death: The Supreme Court and Capital
Punishment, 1963–2006, 107 COLUM. L. REV. 1, 23 (2007).
53
See Furman, 408 U.S. at 239.
54
See id. at 240 (Douglas, J., concurring).

19

 the three cases, under the Georgia and Texas statutes a jury ultimately sentenced
each of the defendants to death.55
The defendants in Furman argued that the Georgia and Texas statutes
contained ―unbridled discretion [that] made it impossible to rationally distinguish
between those who would live and those who would die.‖56

―Certiorari was

granted limited to the following question: ‗Does the imposition and carrying out of
the death penalty in (these cases) constitute cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments?‘‖ 57 The splintered Court
held that it did.
Although the Court struck down death sentences in the cases on appeal, it
stopped short of holding the death penalty unconstitutional as a categorical matter.
In a one-paragraph per curiam opinion, the Furman majority held ―that the
imposition and carrying out of the death penalty in these cases constitute cruel and
unusual punishment in violation of the Eighth and Fourteenth Amendments.‖58
But, like the situation we find ourselves in today, the Court‘s majority could not
agree on exactly why that was so.59 Three Justices, each authoring a separate
concurring opinion, voted to strike down the death sentences because the death
55

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).
56
Lain, supra note 28, at 16–17.
57
Furman, 408 U.S. at 239.
58
Id. at 239–40 (emphasis added).
59
See Lain, supra note 28, at 10–11.

20

 penalty statutes in question did not provide sufficient protections to ensure that the
death penalty was not imposed in an arbitrary and capricious manner, and as a
result, were applied in a racially discriminatory manner.60

As one respected

treatise explains it, the Furman plurality ―held that the death penalty was so
arbitrarily and randomly imposed that it violated the Eighth Amendment.‖ 61 The
views of the two other Justices who voted to overturn the convictions is easier to
state: They viewed any imposition of the death penalty to any defendant to be
cruel and unusual punishment, and therefore as unconstitutional under the Eighth
and Fourteenth Amendments.62
Despite the lack of consensus, Furman clarified that a capital sentencing
scheme must meet a basic hurdle to avoid violating the Eighth Amendment:
―Furman mandates that where discretion is afforded a sentencing body on a matter
so grave as the determination of whether a human life should be taken or spared,
that discretion must be suitably directed and limited so as to minimize the risk of
wholly arbitrary and capricious action.‖63

60

In other words, what Furman

See Furman, 408 U.S. at 256–57 (Douglas, J., concurring); id. at 308, 310 (Stewart, J.,
concurring); id. at 310–11, 313 (White, J., concurring).
61
6 LAFAVE, ET AL., supra note 12, § 26.1(b), at 671.
62
See Furman, 408 U.S. at 305 (Brennan, J., concurring); id. at 369 (Marshall, J., concurring).
63
Gregg, 428 U.S. at 189; see also Zant v. Stephens, 462 U.S. 862, 876–77 (1983); Douglass,
supra note 6, at 1994.

21

 established is that the sentencer in a capital case cannot have ―unbridled
discretion‖ in sentencing a defendant.64
IV.
Given that the common practice in the states before Furman was to give to
the jury the discretion to impose a life or death sentence, Furman had the practical
effect of ―str[iking] down virtually every death penalty law nationwide,‖ 65 and
creating a de facto moratorium on executions.66 In fact, ―[w]hen the Supreme
Court decided Furman in 1972, almost everyone—including the Justices
themselves—believed that America had seen its last execution.‖67

But after

Furman, the prior trends in the states reversed course. Instead of reacting to
Furman by abolishing death penalty statutes as most people had expected, states
responded by passing new death penalty statutes that they thought would satisfy
the requirements Furman established.68 Indeed, after Furman defendants again
began being given death sentences at very high rates.69

64

Woodson, 428 U.S. at 285 (emphasis added); see also Eddings v. Oklahoma, 455 U.S. 104,
110–12 (1982); Douglass, supra note 6, at 1995.
65
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.
66
See Baze v. Rees, 553 U.S. 35, 88 (2008) (Scalia, J., concurring); Lain, supra note 28, at 19.
67
Lain, supra note 28, at 45; see also Furman, 408 U.S. at 313 (White, J., concurring); LEE
EPSTEIN & JOSEPH F. KOBYLKA, THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE
DEATH PENALTY 81 (1992); Arthur J. Goldberg, The Death Penalty and the Supreme Court, 15
ARIZ. L. REV. 355, 367 (1973).
68
See Callins v. Collins, 510 U.S. 1127, 1144 (1994) (Scalia, J., concurring).
69
See Lain, supra note 28, at 47–49; Smith, supra note 48, at 290; ZIMRING & HAWKINS, supra
note 65, at 39.

22

 To avoid arbitrariness and comply with the Eighth Amendment as
interpreted in Furman, states experimented. Some states changed their capital
sentencing schemes after Furman to allow the trial judge to make the ultimate
life-or-death decision.70

Many other states enacted mandatory statutes, which

outlined a specific category of crimes for which the death penalty was the required
sentence.71

The rationale behind these statutes was an obvious response to

Furman‘s concern about arbitrariness and discrimination: If every defendant who
committed a capital offense was subject to death, there would be no discrimination
or arbitrariness in the sentencing process. Conviction would invariably equal
death.72
Still other states took a different approach. To rationally narrow the crimes
for which death was a possibility, states began to adopt more specific statutes
under which a defendant would be eligible for a death sentence only if he was
found to have committed, for example, not just a homicide, but a type of homicide
that the statute identified as especially egregious and deserving of harsh
punishment.73 Thus, the post-Furman capital sentencing statutes often included

70

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).
71
See Lain, supra note 28, at 56–57.
72
See Poulos, supra note 10, at 186.
73
See Liebman, supra note 52, at 10.

23

 lists of aggravating factors intended to narrow the scope of death eligible crimes
and defendants.74
V.
By the bicentennial, this period of legislative reaction had resulted in cases
ripe for Supreme Court consideration.

On July 2, 1976, the Supreme Court

decided four cases that addressed the constitutional adequacy of several states‘
attempts to comply with Furman. The most famous of these so-called ―July 2nd
cases‖ was, of course, Gregg v. Georgia.75

At issue in Gregg was the

constitutionality of Georgia‘s capital sentencing scheme that was structurally
similar to that which had been struck down in Furman,76 but which attempted to
address Furman‘s requirements by ―provid[ing] some sort of criteria to guide the
jury‘s discretion in determining whether to impose death.‖77 The Supreme Court
upheld Georgia‘s new capital sentencing scheme and clarified that its holding in
Furman was limited to the imposition of the death penalty in the specific Georgia
and Texas cases at issue in Furman under the then-existing statutes.78 In keeping
with what it then viewed as the popular opinion in the United States,79 the Court
held in Gregg ―that the punishment of death does not invariably violate the
74

See id.; Douglass, supra note 6, at 1994.
428 U.S. 153 (1976).
76
See Liebman, supra note 52, at 28.
77
Lain, supra note 28, at 55 n.317.
78
See Gregg, 428 U.S. at 168–69.
79
See id. 179.
75

24

 Constitution,‖ and specifically the Eighth Amendment.80 And, the Court held that
capital punishment is not a cruel and unusual punishment for the crime of murder,
but is ―an extreme sanction, suitable to the most extreme of crimes.‖81
Of equal importance to Gregg‘s validation of state approaches involving
what some have called ―guided discretion‖ was the Supreme Court‘s rejection of
mandatory statutes as an answer to its concerns over capricious imposition of the
death penalty. In Woodson v. North Carolina,82 the Court reviewed the death
sentences of four defendants who had been convicted of first degree murder
resulting from their participation in an armed robbery. North Carolina was one of
the states that amended their capital sentencing schemes after Furman to make
death the mandatory sentence for eligible crimes. After ―sketching the history of
mandatory death penalty statutes in the United States,‖ the Court noted that its
findings ―reveal[] that the practice of sentencing to death all persons convicted of a
particular offense has been rejected as unduly harsh and unworkably rigid.‖ 83 And,
the Court observed, ―a mandatory death penalty statute . . . does not fulfill
Furman‘s basic requirement by replacing arbitrary and wanton jury discretion with

80

Id. at 169; see also Jurek v. Texas, 428 U.S. 262, 268 (1976).
Gregg, 428 U.S. at 187; see also Kansas v. Marsh, 548 U.S. 163, 173–74 (2006).
82
428 U.S. 280.
83
Id. at 289, 293; see also Roberts v. Louisiana, 428 U.S. 325, 335–36 (1976) (same).
81

25

 objective standards to guide, regularize, and make rationally reviewable the
process for imposing a sentence of death.‖84
Woodson then observed that an additional ―constitutional shortcoming of the
North Carolina statute is its failure to allow the particularized consideration of
relevant aspects of the character and record of each convicted defendant before the
imposition upon him of a sentence of death.‖85 The Court explained:
[I]n capital cases the fundamental respect for humanity underlying the
Eighth Amendment requires consideration of the character and record
of the individual offender and the circumstances of the particular
offense as a constitutionally indispensable part of the process of
inflicting the penalty of death. This conclusion rests squarely on the
predicate that the penalty of death is qualitatively different from a
sentence of imprisonment, however long. Death, in its finality, differs
more from life imprisonment than a 100-year prison term differs from
one of only a year or two. Because of that qualitative difference, there
is a corresponding difference in the need for reliability in the
determination that death is the appropriate punishment in a specific
case.86
After Woodson, it was widely believed that states could not specify by
statute a list of crimes for which conviction would automatically result in a death
sentence. Although the Supreme Court had supposedly left open that the murder
of a prison guard by a prisoner might be an exception87—a possibility the Supreme

84

Id. at 303.
Id.
86
Id. at 304–05.
87
See id. at 287 n.7; id. at 292 n.25.
85

26

 Court later expressly rejected in 198788—commentators viewed the mandatory
approach as having been soundly rejected.89
And in Jurek v. Texas,90 the Supreme Court reviewed the conviction of a
Texas man sentenced to death for murder. The Texas statute at issue required the
sentencing jury to consider the aggravating factors during sentencing, but did not
allow consideration of mitigating factors. The Supreme Court invalidated that
statute, holding that ―in order to meet the requirement of the Eighth and Fourteenth
Amendments, a capital-sentencing system must allow the sentencing authority to
consider mitigating circumstances.‖91 ―A jury,‖ the Court reasoned, ―must be
allowed to consider on the basis of all relevant evidence not only why a death
sentence should be imposed, but also why it should not be imposed.‖92
In the final July 2nd case, the Supreme Court upheld the capital sentencing
schemes that were amended after Furman to switch from jury to judge sentencing
in capital cases from an Eighth Amendment challenge. In Proffitt v. Florida,93 the
Court recognized ―that jury sentencing in a capital case can perform an important
societal function,‖ but nevertheless explained that the Court had ―never suggested
88

See Sumner v. Shuman, 483 U.S. 66, 77–78 (1987).
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).
90
428 U.S. 262.
91
Id. at 271; see also Woodson, 428 U.S. at 303–04; Lockett, 438 U.S. at 605; Douglass, supra
note 6, at 1994–95.
92
Jurek, 428 U.S. at 271.
93
428 U.S. 242 (1976).
89

27

 that jury sentencing is constitutionally required.‖94 Of course, Proffitt was decided
only in 1976, less than a decade after the Court had first held that the Sixth
Amendment right to a jury applied against the states.95

And Proffitt never

examined that there had not been much basis as of 1976 to ponder the question of
whether a defendant had a right to have a jury make the final decision as to death,
given the overwhelming historical prevalence of jury sentencing authority in that
most sensitive of realms.
What followed Gregg and the other July 2nd cases was another wave of new
death penalty statutes that confirmed that Furman and its progeny had unsettled
tradition.96 Perhaps unsurprisingly, the complexity of the procedures necessary for
states to implement the death penalty in a manner consistent with the Supreme
Court‘s evolving case law raised new questions regarding the respective roles of
judge and jury.97 One consequence of the Supreme Court‘s jurisprudence was
clear, which is that it was no longer practicable for a capital defendant to be subject
to a singular proceeding after which his guilt and punishment were determined
simultaneously, because states could not establish a mandatory death sentence
regime.98 And, states were required to take steps to limit the arbitrariness in the

94

Id. at 252.
See supra note 47 and accompanying text.
96
See Johnson v. Texas, 509 U.S. 350, 360 (1993).
97
See Douglass, supra note 6, at 2024–25 (discussing this issue).
98
See supra notes 82–89 and accompanying text.
95

28

 application of the death penalty.99

Thus, ―all death-penalty states abandoned

unitary trials in favor of bifurcated proceedings that separate the case into a ‗guilty‘
phase and a ‗penalty‘ phase.‖100 By and large, this meant that states had to set up a
process for the consideration of all relevant factors bearing on whether a particular
defendant deserved the death penalty, including mitigating factors relevant only to
sentencing and not to guilt or innocence. Likewise, it meant having a process to
try to ensure proportionality in the imposition of the death penalty, by making sure
that it was not imposed for crimes that were not sufficiently egregious. 101 This
proportionality review necessarily required a consideration of not just the case at
hand, but of other similar cases, and was more fitting for judicial rather than jury
performance.102
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
99

See supra notes 63–64 and accompanying text.
Douglass, supra note 6, at 1995; see also id. at 2020.
101
See Gregg, 428 U.S. at 173; Enmund v. Florida, 458 U.S. 782, 815 (1982) (same); Weeks v.
State, 653 A.2d 266, 270 (Del. 1995).
102
See, e.g., Coker v. Georgia, 433 U.S. 584, 596 (1977); Clark v. State, 672 A.2d 1004, 1010
(Del. 1996).
100

29

 increasingly shifted the locus of authority for capital sentencing determinations
away from juries and toward judges.103 In effect then, Furman and the July 2nd
cases set in motion a historically unprecedented period in which sentencing in
capital cases was distinct from the conviction phase, in which judges in some states
came to have a more critical role, and in which it was not even clear that juries had
to have a role at all.104
When the U.S. Supreme Court reviewed these capital sentencing statutes
that state legislatures enacted or revised in the wake of Furman and Gregg, the
Court also addressed cases focused on defendants‘ rights under the Sixth
Amendment. More specifically, after the states enacted statutory approaches to
satisfy Furman‘s key mandates, the U.S. Supreme Court issued a number of
decisions addressing various issues regarding the respective roles of judges and
juries in capital sentencing.
In Spaziano v. Florida,105 for example, the Supreme Court reviewed
Florida‘s capital sentencing scheme, which allowed the sentencing judge to
override a jury‘s recommendation of life imprisonment and impose a death
sentence.106

This is precisely what happened at Spaziano‘s sentencing, and

Spaziano contended ―that allowing a judge to override a jury‘s recommendation of
103

See Douglass, supra note 6, at 1984; Stevenson, supra note 45, at 1140.
See Liebman, supra note 52, at 30–34.
105
468 U.S. 447 (1984), overruled by Hurst v. Florida, 136 S. Ct. 616 (2016).
106
See id. at 451.
104

30

 life violates the Eighth Amendment‘s proscription against ‗cruel and unusual
punishments,‘‖ and ―that the [judicial override] practice violates the Sixth
Amendment.‖107 Despite the fact that the Supreme Court had recently held in a
number of cases that procedural protections from the guilt stage of a criminal
case—including those guaranteed by the Sixth Amendment—also applied at the
penalty stage,108 the Court rejected Spaziano‘s arguments and upheld Florida‘s
capital sentencing scheme, holding ―that there is no constitutional imperative that a
jury have the responsibility of deciding whether the death penalty should be
imposed.‖109

As to Spaziano‘s Sixth Amendment argument, the Court‘s

reasoning—echoing its slight Eighth Amendment discussion in Proffitt—was so
cursory that it can be quoted in full:
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
107

Id. at 457–58.
See, e.g., Strickland v. Washington, 466 U.S. 668, 686–87 (1984) (holding that criminal
defendants have a right to effective assistance of counsel at ―[a] capital sentencing proceeding‖
because such a proceeding ―is sufficiently like a trial in its adversarial format and in the
existences of standards for decision‖); Mempa v. Ray, 389 U.S. 128, 134 (1967) (explicitly
extending the Sixth Amendment right to counsel to sentencing); see also White, supra note 13, at
18 n.145 (―Prior to Spaziano, the Court had decided a series of cases holding that procedural
protections at the guilt stage are also applicable at the penalty stage. See, e.g., Estelle v. Smith,
451 U.S. 454 (1981) (privilege against self-incrimination and right to counsel under Massiah);
Bullington v. Missouri, 451 U.S. 430 (1981) (double jeopardy); Gardner v. Florida, 430 U.S.
349 (1977) (right to confront and rebut government evidence).‖).
109
Spaziano, 468 U.S. at 465; see also id. at 464.
108

31

 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
Turning to Spaziano‘s Eighth Amendment argument, the Court explained that the
fact that the only three states allowed a judge to override a jury‘s recommendation
of life does not mean that those states‘ capital sentencing schemes are
unconstitutional because ―[t]he Eighth Amendment is not violated every time a
State reaches a conclusion different from a majority of its sisters over how best to
administer its criminal laws.‖111
The Court reaffirmed and extended its holding in Spaziano in several later
cases, many of which also involved Florida‘s capital sentencing scheme.

110

In

Id. at 458–59 (citations omitted) (quoting Bullington v. Missouri, 451 U.S. 430, 445 (1981))
(internal quotation marks omitted).
111
Spaziano, 468 U.S. at 464.

32

 Hildwin v. Florida,112 for example—―a per curiam decision without briefing,
argument, or plenary consideration‖113—the Court held that ―the Sixth Amendment
does not require that the specific findings authorizing the imposition of the
sentence of death be made by the jury.‖114 Using Spaziano as a springboard, the
Court reasoned that because ―the Sixth Amendment permits a judge to impose a
sentence of death when the jury recommends life imprisonment, . . . it follows that
it does not forbid the judge to make the written findings that authorize imposition
of a death sentence when the jury unanimously recommends a death sentence.‖115
And, in Clemons v. Mississippi,116 the U.S. Supreme Court reaffirmed its
view that the Constitution did not require jury sentencing or that a jury make all
factual findings that are necessary to sentence a defendant to death.117 The Court
also explained in Clemons that a state appellate court may uphold a death sentence
that is based in part on an invalid statutory aggravating factor—or, as I refer to it
for the sake of simplicity and functional clarity, a ―death eligibility factor‖—as
long as that error is harmless because, for example, a different death eligibility
factor existed.118

112

490 U.S. 638 (1989), overruled by Hurst v. Florida, 136 S. Ct. 616 (2016).
White, supra note 13, at 18.
114
Hildwin, 490 U.S. at 640–41.
115
Id. at 640 (emphasis added); see also White, supra note 13, at 18–19.
116
494 U.S. 738 (1990).
117
See id. at 745.
118
See id.
113

33

 The Supreme Court again rejected a defendant‘s argument that the
Constitution requires jury sentencing in capital cases in Walton v. Arizona.119
There, a capital defendant challenged Arizona‘s capital sentencing scheme under
both the Sixth and Eighth Amendments.

The Court first rejected Walton‘s

argument that Arizona‘s capital sentencing scheme, which required the trial judge
to make all factual findings involved in capital sentencing and gave the jury no
advisory role, was sufficiently distinct from the Florida scheme the Court had
upheld in Spaziano and Hildwin scheme, which did give the jury at least an
advisory role, to make the Arizona statute more vulnerable under the Sixth
Amendment.120

The Court was not troubled by any lesser role for the jury.

Instead, relying on Spaziano, Hildwin, and Clemons, the Court then held ―that the
Arizona capital sentencing scheme does not violate the Sixth Amendment.‖121
Second, the Court rejected Walton‘s Eighth Amendment argument, concluding that
a death penalty statute does not violate the Eighth Amendment solely because it
puts the burden of proving mitigating factors by a preponderance of the evidence
on the defendant.122

119

497 U.S. 639, overruled by Ring v. Arizona, 536 U.S. 584 (2002).
See id. at 648.
121
Id. at 649.
122
See id. at 650.
120

34

 Finally, in Harris v. Alabama,123 the Supreme Court held that a capital
sentencing scheme that ―vests capital sentencing authority in the trial judge, but
requires the judge to consider an advisory jury verdict‖ was not unconstitutional.124
The Court noted the similarities between the Florida and Alabama schemes, and
observed that the key difference was that the Florida scheme which it had
previously upheld in the cases discussed above, unlike its Alabama counterpart,
required a trial judge to ―give ‗great weight‘ to the jury‘s recommendation
and . . . not override the advisory verdict of life unless ‗the facts suggesting a
sentence of death [are] so clear and convincing that virtually no reasonable person
could differ.‘‖125 Harris argued that the failure of Alabama‘s statute to provide
similar guidelines for considering the jury‘s advisory verdict rendered the statute
unconstitutional.126 But the Court disagreed: ―The Constitution permits the trial
judge, acting alone, to impose a capital sentence. It is thus not offended when a
State further requires the sentencing judge to consider a jury‘s recommendation
and trusts the judge to give it the proper weight.‖127
*

*

*

In sum, as the law stood at the turn of the twentieth century, the Supreme
Court itself held that jury sentencing was not required in capital cases, even though
123

513 U.S. 504 (1995).
Id. at 505.
125
Id. at 509 (quoting Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975)).
126
See id. at 511.
127
Id. at 515.
124

35

 jury sentencing in death penalty cases had been predominant throughout our
nation‘s history before Furman128 and continued to be so.129 But, the Supreme
Court had placed some limits on death sentences, such as holding mandatory death
sentences unconstitutional and requiring that the sentencer consider mitigating
factors.130 And, the Supreme Court itself had recognized that its own jurisprudence
had essentially required at least two different stages within a case if a state was to
impose the death penalty consistent with the Constitution.

To address the

requirement of Furman that capital sentencing discretion be narrowed to help
avoid arbitrary results, there must first be a phase that the Supreme Court has at
different times called the ―definition stage‖131 and the ―eligibility phase,‖132 the
latter of which I adopt as the more appropriate term. I refer to it as the eligibility
phase because that is the phase in which the defendant is found eligible for the
death penalty, typically as a result of a finding that one or more aggravating factors
exists that qualify his crime as making death an authorized punishment. This
eligibility phase responds to the requirements of Furman and its progeny, such as
Godfrey v. Georgia133 and Maynard v. Cartwright134 that there be a meaningful

128

See supra note 15 and accompanying text.
See Harris, 513 U.S. at 516–17 (Stevens, J., dissenting).
130
See supra notes 85–92 and accompanying text.
131
See, e.g., Zant, 462 U.S. at 879.
132
See, e.g., Kansas v. Carr, 136 S. Ct. 633, 642 (2016); Jones v. United States, 527 U.S. 373,
381 (1999).
133
446 U.S. 420 (1980).
134
486 U.S. 356 (1988).
129

36

 ―narrowing‖ of the class of offenders eligible for the death penalty.135

The

statutory eligibility factors are typically referred to as aggravating factors, because
they are seen as special circumstances that take a very serious crime, such as an
unlawful homicide, and make it particularly blameworthy and thus subject to the
perpetrator to a possible death sentence. Common aggravators include killing a
victim who is a peace officer and committing murder in the course of another
felony.136 As the U.S. Supreme Court itself has done for precision at times, I use
the term ―death eligibility factor‖ to describe these circumstances because it more
clearly articulates what they are, and distinguishes them from the broader use of an
aggravating circumstance in the next required phase.137 Although having their
origins in Furman‘s mandate that the circumstances in which the death penalty be
imposed be narrowed, death eligibility factors have proliferated. 138 In Delaware,

135

See Godfrey, 446 U.S. at 433; Maynard, 486 U.S. at 363–64; see also White, supra note 13, at
20 n.160.
136
See Garvey, supra note 45, at 1035; Smith, supra note 48, at 297–98.
137
See Brown v. Sanders, 546 U.S. 212, 216 n.2 (2006) (―Our cases have frequently employed
the terms ‗aggravating circumstance‘ or ‗aggravating factor‘ to refer to those statutory factors
which determine death eligibility in satisfaction of Furman‘s narrowing requirement. This
terminology becomes confusing when, as in this case, a State employs the term ‗aggravating
circumstance‘ to refer to factors that play a different role, determining which defendants eligible
for the death penalty will actually receive that penalty. To avoid confusion, this opinion will use
the term ‗eligibility factor‘ to describe a factor that performs the constitutional narrowing
function.‖ (emphasis in original) (citations omitted)).
138
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).

37

 for example, there are now twenty-two circumstances that can make a defendant
death eligible.139
That next phase, which has been referred to among other things as the
―weighing phase,‖ the ―selection phase,‖ or in my view, the ―ultimate sentencing
phase,‖ is when there is an individualized determination of the sentence for the
defendant.140 This phase was required because the Supreme Court made clear that
even if a state had narrowed the circumstances for which death was the authorized
punishment to address the concerns raised in Furman, it still could not make death
a mandatory sentence.141 Instead, Furman and the July 2nd cases taken together
mandated that a sentencing phase occur during which all relevant factors bearing
on whether the defendant should live or die must be considered, and during which
the defendant has a constitutional right to effective representation in presenting
evidence mitigating against the imposition of death. In all circumstances, the state
must afford the option for the defendant to be given the comparatively more
merciful option of a lengthy prison sentence as opposed to death.142 As discussed,
these developments and their complexity gave rise to a small number of statutes
that cabined the jury‘s historical role in the death penalty sentencing process. A
notable example was the amendment to Delaware‘s capital sentencing scheme in
139

See 11 Del. C. § 4209(e)(1).
Smith, supra note 48, at 364–65.
141
See Douglass, supra note 6, at 1994–95.
142
See supra notes 83–84 and accompanying text.
140

38

 1991, which eliminated the unanimous jury requirement in capital sentencing as a
direct response to the failure of prosecutors to convince an entire jury to vote for
death in a high-profile case.143 As scholars observed, ―the presumption that judges
would be more willing to than juries to impose capital punishment appeared to
motivate the statutory change to judge sentencing.‖144
With the intricacy of this two-stage process arose further questions about the
respective role of judge and jury in the sentencing phase process, questions that
came to the fore early in this century in an important non-capital case, which I now
discuss.
VI.
In 2000, the Supreme Court decided Apprendi, which marked a major shift
in the U.S. Supreme Court‘s Sixth Amendment jurisprudence and created the
momentum behind the line of cases leading directly to Hurst. The relevant facts of
that non-death penalty case were simple. Apprendi, who was white, had pled
guilty to multiple felonies arising from an event in which he fired several bullets
into the home of a black family.145

After holding an evidentiary hearing on

Apprendi‘s intent, the trial judge concluded that Apprendi had been motivated by
143

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, 604 A.2d 846 (Del. 1992).
144
Johnson et al., supra note 40, at 1954.
145
See Apprendi, 530 U.S. at 469–70.

39

 racial bias.146 Under New Jersey law, if a defendant ―acted with a purpose to
intimidate an individual or group of individuals because of race, color, gender,
handicap, religion, sexual orientation or ethnicity,‖ he could be deemed to have
committed a ―hate crime‖ and be eligible for a longer sentence. 147 Thus, the trial
judge found that the ―hate crime‖ sentencing enhancement applied, and the judge
increased Apprendi‘s sentence accordingly.148 The issue the U.S. Supreme Court
faced in Apprendi was whether a judge, as opposed to a jury, could find facts that
increased the defendant‘s maximum sentence.149 The Court held that ―[o]ther than
the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.‖150

In extending Apprendi into the sentencing guidelines

context in Blakely v. Washington,151 the Supreme Court explained ―that the
‗statutory maximum‘ for Apprendi purposes is that maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant. . . . In other words, the relevant ‗statutory maximum‘ is not the

146

See id. at 470–71.
Id. at 469 (quoting N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 1999–2000)) (internal quotation
marks omitted).
148
See id. at 471.
149
See id. at 469.
150
Id. at 490.
151
542 U.S. 296 (2004).
147

40

 maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.‖152
Shortly after Apprendi, the Supreme Court decided Ring v. Arizona,153 which
applied Apprendi for the first time to the death penalty sentencing process.154 Ring
was a case in which the Court was again faced with the constitutionality of the
Arizona capital sentencing scheme that it had upheld against both Sixth and Eighth
Amendment challenges in Walton.155 Ring confirmed that Apprendi‘s rule extends
to the death context, reasoning that ―[c]apital defendants, no less than noncapital
defendants . . . , are entitled to a jury determination of any fact on which the
legislature conditions an increase in their maximum punishment.‖156 In other
words, the Court explained, ―[i]f a State makes an increase in a defendant‘s
authorized punishment contingent on the finding of a fact, that fact—no matter
how the State labels it—must be found by a jury beyond a reasonable doubt.‖157
And then, recognizing that Walton and Apprendi were irreconcilable, Ring
―overrule[d] Walton to the extent that it allows a sentencing judge, sitting without a
jury, to find an aggravating circumstance necessary for imposition of the death

152

Id. at 303–04 (emphasis in original).
536 U.S. 584.
154
See W. David Ball, Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and
the Meaning of Punishment, 109 COLUM. L. REV. 893, 896–97 (2009).
155
See supra notes 119–122 and accompanying text.
156
Ring, 536 U.S. at 589.
157
Id. at 602.
153

41

 penalty.‖158 The Court held that ―[b]ecause Arizona‘s enumerated aggravating
factors operate as ‗the functional equivalent of an element of a greater offense,‘ the
Sixth Amendment requires that they be found by a jury.‖159
VII.
A.
Ring occasioned one of the last major changes to Delaware‘s own death
penalty statute, and is the logical point at which to explain what our current statute
provides. As of Ring, the Delaware statute had last been amended in relevant part
in 1991 and provided that the jury‘s findings as to whether any death eligibility
factors existed and whether the aggravating factors outweighed the mitigating
factors were just advisory.160 The sentencing judge had the final say in both the
eligibility and ultimate sentencing stages.161 Delaware‘s approach was logical in
light of the post-Furman decisions. By providing that only certain homicides that
involved statutorily defined circumstances would make a defendant eligible for the
death penalty,162 the statute addressed the need to narrow the class of defendants
who could be executed. By providing for a sentencing phase during which those
factors that aggravated toward the death penalty and those that mitigated against it
158

Id. at 609.
Id. (internal citation omitted) (quoting Apprendi, 530 U.S. at 494 n.19).
160
See Brice v. State, 815 A.2d 314, 320 (2003).
161
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).
162
See 11 Del. C. § 4209(d)(1)(a) (1991).
159

42

 would be rationally considered,163 the Delaware statute addressed the constitutional
mandate that a death sentence not be mandatory, and instead be the product of a
rational, individualized process whereby any mitigating factor could be considered.
And, the statute also provided for an appellate process of proportionality review as
a further safeguard against the arbitrary imposition of the death penalty. 164
In Ring itself, the U.S. Supreme Court took note that Delaware‘s
then-existing capital sentencing scheme was different from the Arizona statute it
was addressing. The Ring Court explained that Delaware was one of four ―hybrid
systems, in which the jury renders an advisory verdict but the judge makes the
ultimate sentencing determinations.‖165 But Ring seemed to make Delaware‘s
statute vulnerable because the jury‘s determination as to eligibility was not
necessary, just advisory. Thus, the General Assembly amended Delaware‘s death
penalty statute, § 4209, to reflect its current form. The amendment changed the
jury‘s role in the eligibility phase ―from one that was advisory under the 1991
version of § 4209 into one that is now determinative as to the existence of any
statutory aggravating circumstances [i.e., death eligibility factors].‖166

163

See id. § 4209(d)(1)(b).
See id. § 4209(g).
165
Ring, 636 U.S. at 608 n.6.
166
Brice v. State, 815 A.3d 314, 320 (Del. 2003); see also House Debate on S.B. 449, 141st Gen.
Assembly (Del. 2002) (statement on behalf of the Delaware Department of Justice); Senate
Debate on S.B. 449, 141st Gen. Assembly (Del. 2000) (statement on behalf of the Delaware
Department of Justice).
164

43

 One year after Ring and the accompanying amendment to § 4209, this Court
decided Garden v. State,167 which impelled an amendment that went in the other
direction and reduced the jury‘s role in the death penalty sentencing process even
further. In Garden, this Court reviewed the Superior Court‘s imposition of a death
sentence despite the jury‘s recommendation of life sentences by ten-to-two and
nine-to-three votes on intentional murder and felony murder charges, respectively.
In response to that judicial override, Garden reversed the sentence of death and
held ―that a trial judge must give a jury recommendation of life ‗great weight‘ and
may override such a recommendation only if the facts suggesting a sentence of
death are so clear and convincing that virtually no reasonable person could
differ.‖168 As was the case with the legislation in 1991 eliminating the unanimity
requirement for § 4209,169 the failure of the State to obtain a death sentence
because juror opposition prevented that result led to legislation to diminish the
influence of the cross-section of the community empanelled to decide whether the
defendant was guilty.

To wit, to overrule Garden‘s ―great weight‖ standard,

§ 4209 was amended ―to provide that the jury‘s recommendation shall only be
‗given such consideration as deemed appropriate.‘‖170

167

815 A.2d 327 (Del. 2003).
Id. at 343.
169
See supra note 143 and accompanying text.
170
Michael L. Radelet, Overriding Jury Sentencing Recommendations in Florida Capital Cases:
An Update and Possible Half-Requiem, 2011 MICH. ST. L. REV. 793, 800.
168

44

 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) ―[w]hether 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.‖171
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].‖172 If the jury
finds that no death eligibility factor exists, the judge must sentence the defendant
to life imprisonment.173 But, if the jury finds that at least one death eligibility

171

11 Del. C. § 4209(c)(3).
Id. § 4209(c)(3)(b)(1); see also id. § 4209(e)(1).
173
Id. § 4209(d)(2).
172

45

 factor exists, then the defendant is death eligible and the process moves on to the
ultimate sentencing phase.174
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.‖175

First, the jury decides ―[w]hether, by a

preponderance of the evidence, after weighing all relevant evidence in aggravation
or mitigation . . . , the aggravating circumstances found to exist outweigh the
mitigating circumstances found to exist.‖176 Then,
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.‖178 The
trial judge thus has the final say in deciding whether a capital defendant is
sentenced to death and need not give any particular weight to the jury‘s view.
174

Id. § 4209(d)(1).
Swan v. State, 28 A.3d 362, 390 (Del. 2011); see also Reyes v. State, 819 A.2d 305, 317 (Del.
2003).
176
11 Del. C. § 4209(c)(3)(a)(2).
177
Id. § 4209(d)(1).
178
Id.
175

46

 B.
After § 4209 was amended in the wake of Ring, this Court answered four
certified questions from the Superior Court in Brice v. State.179 Brice found that
the jury‘s finding of a death eligibility factor in the eligibility phase—not the
judge‘s determination in the ultimate sentencing phase—is what makes a defendant
eligible for a death sentence under § 4209:
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

179

815 A.3d 314.
Id. at 322 (internal citations omitted); see also Swan, 28 A.3d at 390; Ortiz v. State, 869 A.2d
285, 305–06 (Del. 2005); Reyes, 819 A.2d at 316; Norcross v. State, 816 A.2d 757, 767 (Del.
2003).
180

47

 the sentencing judge could rely on aggravating factors in addition to whatever
death eligibility factors were found by the jury. These factors—which I have
defined as aggravating factors for clarity—need not have been found by the jury.
But, the Court did not view that feature of Delaware‘s capital sentencing scheme as
problematic: ―Ring does not . . . require that the jury find every fact relied upon by
the sentencing judge in the imposition of the sentence.‖181 Thus, as long as the
jury has already found one death eligibility factor as required by Ring, the reality
that a sentencing judge under our statute may consider aggravating factors that the
jury does not find beyond a reasonable doubt ―does not ‗increase‘ the maximum
penalty that a defendant can receive.‖182 In other words, Brice embraced the
reading of Ring summarized by Justice Scalia in his concurrence in that case, in
which he stated:
What today‘s decision says is that the jury must find the existence of
the fact that an aggravating factor [i.e., a death eligibility] existed.
Those States that leave the ultimate life-or-death decision to the judge
may continue to do so—by requiring a prior jury finding of [an]
aggravating factor [i.e., a death eligibility factor] in the sentencing
phase or, more simply, by placing the aggravating-factor
determination [i.e., death eligibility determination] (where it logically
belongs anyway) in the guilt phase.183

181

Brice, 815 A.2d at 322.
Id.
183
Ring, 536 U.S. at 612–13 (Scalia, J., concurring).
182

48

 VIII.
This lengthy tour has now arrived at Hurst, the new decision of the U.S.
Supreme Court that our Superior Court considered such a materially new addition
to our nation‘s constitutional jurisprudence to certify us questions covering
essentially the same issues as we confronted in Brice. The reason our learned
colleague did so is obvious from a close reading of Hurst, because Hurst can either
be seen, as I candidly admit, either as a plain application of Ring to a state, Florida,
that did not respond to Ring‘s mandate, or as signaling the recognition that a jury‘s
role in the death penalty process cannot be rigidly confined to the eligibility phase.
As is now widely known, Hurst held that Florida‘s capital sentencing
scheme was unconstitutional.184 The Florida scheme evaluated in Hurst differed
from Delaware‘s in three material ways. First, Florida‘s statute charged the jury
with deciding by a majority vote both (1) whether a death eligibility factor exists;
and (2) whether the aggravating circumstances outweigh the mitigating
circumstances. Second, Florida‘s statute did not require the jury to decide whether
a death eligibility factor exists beyond a reasonable doubt. And third, a jury under
Florida‘s statute made ―an ‗advisory sentence‘ of life or death without specifying
the factual basis of its recommendation.‖185 In Delaware, by contrast, a jury must

184

See Hurst, 136 S. Ct. at 619.
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,
185

49

 find a death eligibility factor unanimously and beyond a reasonable doubt. The
jury in Delaware is then charged with making a non-unanimous decision of
whether the aggravating factors outweigh the mitigating factors, under a
preponderance of the evidence standard. That recommendation, like in Florida, is
advisory,186 but unlike Florida, does not ask jurors to specifically vote whether they
believe death is the appropriate punishment. Despite these differences, there are
important similarities between the capital sentencing scheme struck down in Hurst
and § 4209: ―Both Florida‘s invalidated law and Delaware‘s leave the ultimate
sentencing phase and the final sentencing decision in the hands of a judge. Both
have a jury make a recommendation to the court, but this is merely advisory.‖ 187
In finding that the Florida capital sentencing scheme was unconstitutional,
the Supreme Court focused on the fact that it required the judge to find facts
because the jury‘s ―recommendation‖ was just that—a recommendation that was
advisory and to which the judge was not bound. The Court explained that ―the
Florida sentencing statute does not make a defendant eligible for death until
‗findings by the court that such person shall be punished by death.‘‖188 That
statute was unconstitutional, the Court explained, because ―[t]he Sixth Amendment

2016),
http://www.gwlr.org/hurst-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).
186
See 11 Del. C. § 4209(c)–(d).
187
Ritter, supra note 185, at 16.
188
Hurst, 136 S. Ct. at 620 (quoting Fla. Stat. § 775.082(1)) (emphasis in original).

50

 requires a jury, not a judge, to find each fact necessary to impose a sentence of
death.‖189
In explaining its understanding of Ring, the Hurst Court observed that
―Ring‘s death sentence . . . violated his right to have a jury find the facts behind his
punishment‖ because ―[h]ad Ring‘s judge not engaged in factfinding, Ring would
have received a life sentence.‖190 The Court then explained:
As with Timothy Ring, the maximum punishment Timothy Hurst
could have received without any judge-made findings was life in
prison without parole. As with Ring, a judge increased Hurst‘s
authorized punishment based on her own factfinding. In light of Ring,
we hold that Hurst‘s sentence violates the Sixth Amendment.191
In holding that Florida‘s capital sentencing scheme was unconstitutional, Hurst
expressly overruled its prior decisions addressing Florida‘s death penalty statute in
Spaziano and Hildwin ―in relevant part‖192—both cases in which the Court had
rejected a defendant‘s argument that jury sentencing is constitutionally required in
capital cases: ―Spaziano and Hildwin summarized earlier precedent to conclude
that the Sixth Amendment does not require that the specific findings authorizing
the imposition of the sentence of death be made by the jury. Their conclusion was
wrong, and irreconcilable with Apprendi.‖193 This was a move that some Justices

189

Hurst, 136 S. Ct. at 619.
Id. at 621.
191
Id. at 622 (emphasis added).
192
Id. at 623.
193
Id. (internal quotation marks omitted).
190

51

 had been advocating for some time.194 But, by overruling those cases only ―in
relevant part,‖ the Court left open the notion that they were problematic only
insofar as Florida had not required a jury to make every fact finding required to
render the defendant eligible for death. The use of the term ―authorizing‖ could be
read as supporting that view, although the term could also be seen as ambiguous
and functionally indistinct from the term ―necessary.‖
That is, the meaning of Hurst is contestable because it uses language at
critical points in a way that is not necessarily consistent. For example, there is a
portion of Hurst that seems to be a vanilla application of Ring.

The Court

explained that ―[t]he analysis the Ring Court applied to Arizona‘s sentencing
scheme applies equally to Florida‘s.‖195 But, there are other portions of Hurst
which use broader, or at least less narrowly cabined language, and I understand
these portions to be those which largely motivate the questions posed to us and the
contesting positions of the parties. For example, the Court couched its holding in
broader language, explaining that a jury must ―find each fact necessary to impose a
sentence of death.‖196
The Supreme Court‘s use of the term ―necessary‖ in Hurst also has
relevance because the author of Hurst, Justice Sotomayor, had earlier issued a
194

See, e.g., Woodward v. Alabama, 134 S. Ct. 405, 407 (2013) (Sotomayor, J., dissenting from
denial of cert.) (calling for reconsideration of Spaziano); Harris, 513 U.S. at 524–26 (Stevens, J.,
dissenting).
195
Hurst, 136 S. Ct. at 621–22.
196
Id. at 619 (emphasis added).

52

 dissenting opinion from a denial of certiorari, in which she wrote that the ―required
finding that the aggravating factors of a defendant‘s crime outweigh the mitigating
factors is . . . necessary to impose the death penalty.‖ 197 In other words, if by
―necessary‖ in Hurst, the Supreme Court in fact meant what it said in an
unqualified way, these factors would include the findings that its own
jurisprudence mandate must be made at the ultimate sentencing phase before a
defendant can be given a death sentence. If these necessary findings must be made
by a jury, then the approach taken by Delaware would be problematic.
Notably, Hurst was not a unanimous decision. It generated a concurrence
from Justice Breyer, who is a passionate defender of judicial sentencing discretion
in the context of non-capital cases, and dissented in both Apprendi and Ring.198 At
the same time, Justice Breyer takes the position, which he anchors in the Eighth
Amendment, that no death penalty sentence can be imposed without ―a jury, not a
judge, mak[ing] the decision to sentence a defendant to death.‖199 ―[T]he danger of
unwarranted imposition of the [death] penalty,‖ Justice Breyer believes, ―cannot be
avoided unless ‗the decision to impose the death penalty is made by a jury rather
than by a single governmental official.‖200 ―Even in jurisdictions where judges are
197

See Woodward, 134 S. Ct. at 410–11 (Sotomayor, J., dissenting from denial of cert.).
See Apprendi, 530 U.S. at 555 (Breyer, J., dissenting); Ring, 536 U.S. at 613 (Breyer, J.,
dissenting).
199
Hurst, 136 S. Ct. at 624 (quoting Ring, 536 U.S. at 614 (Breyer, J., dissenting)).
200
See Ring, 536 U.S. at 618 (Breyer, J., dissenting) (quoting Spaziano, 468 U.S. at 469
(Stevens, J., concurring in part and dissenting in part))).
198

53

 selected directly by the people, the jury remains uniquely capable of determining
whether, given the community‘s views, capital punishment is appropriate in the
particular case at hand.‖201 One can summarize Justice Breyer‘s position this way.
He believes that it is so vital to the fairness, regularity, and non-cruelty of any
administration of the death penalty that it must be preceded by a unanimous
determination by a jury that the defendant should die. He believes that without a
cross-section of the community unanimously agreeing a defendant should die, the
resulting penalty is cruel and unusual, because it so drastically departs from the
American tradition. As I note later, this sounds like an oblique way of saying that
there is a fundamental right to have a jury say you should die before the state can
execute you.
Finally, Justice Alito dissented in Hurst.

Most importantly for present

purposes, Justice Alito called for reconsideration of Ring because he believes that
there is no Sixth Amendment right to have a jury decide any fact other than those
necessary to guilt.202 Justice Alito then explained that ―even if Ring is assumed to
be correct,‖ he would not extend it to Florida‘s capital sentencing scheme because
of the differences between Florida‘s and Arizona‘s at the time of Ring.203

201

See id. at 616.
See Hurst, 136 S. Ct. at 625 (Alito, J., dissenting).
203
Id.
202

54

 After the Supreme Court decided Hurst—and after we accepted the certified
question before us—the Court vacated three Alabama death penalty convictions
―in light of Hurst.‖204 Although these orders provide no extensive guidance on
why or how Hurst affected the Alabama convictions, the obvious connection
between these cases and Hurst is that they collectively involve two of the three
capital sentencing schemes that permitted a judge to override a jury‘s
recommendation of a life sentence before Hurst—those of Florida and Alabama.205
The third such scheme is our own.
IX.
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?

204

Johnson v. Alabama, 136 S. Ct. 1837 (2016); Wimbley v. Alabama, __ S. Ct. __, 2016 WL
410937 (May 31, 2016); Kirksey v. Alabama, __ S. Ct. __, 2016 WL 378578 (June 6, 2016).
205
Woodward, 134 S. Ct. at 407 (Sotomayor, J., dissenting from denial of cert.); Ross
Kleinstuber, ―Only a Recommendation‖: How Delaware Capital Sentencing Law Subverts
Meaningful Deliberations and Jurors’ Feelings of Responsibility, 19 WIDENER L. REV. 321, 325
(2013).

55

 (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
56

 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 simply, the State
argues that Hurst should be seen as a clean-up case, where a state, Florida—that
did not view Ring as applying to its statute because the Supreme Court had not
overruled its decisions in Spaziano and Hildwin, in which it had upheld Florida‘s
capital sentencing scheme—was informed that it had to abide by Ring. The bright
line for the Sixth Amendment, in the State‘s conception, is that a jury must find
any fact necessary to authorize a form of punishment, for the narrow purpose of
making a defendant eligible for that punishment. By making the defendant eligible
to receive that punishment, though, a jury need not play any role in the ultimate
sentencing phase, even in a capital case. In other words, the State embraces the
reading of Ring given in Justice Scalia‘s concurrence in that case, and argues that
his joinder in the Hurst majority opinion is further evidence of its limited meaning.

57

 By contrast, counsel for Rauf (and several of the amicus curiae) view Hurst
as going beyond Ring, and as standing for the proposition that if any finding of fact
is necessary as a pre-condition to a death sentence, the Sixth Amendment requires
that finding of fact to be made by a unanimous jury. Rauf argues from the plain
language of the Delaware statute that findings of fact that go beyond the existence
of guilt and of a death eligibility factor are ―necessary‖ for a death sentence to be
imposed in Delaware.

Absent factual findings that the aggravating factors

outweigh the mitigating factors, a defendant must be given a life sentence under
the Delaware statute. Thus, these sentencing stage findings are literally ―necessary
to impose a death sentence.‖206 Rauf‘s argument builds on other U.S. Supreme
Court case law, which prevents states from having a statute whereby a death
sentence is the automatic consequence of a guilty verdict, and which requires states
to have a sentencing phase in which all mitigating factors must be rationally
considered and after which the option of giving a non-capital sentence must exist.
Rauf is joined by amicus curiae, who echo his arguments, but who also make
a more fundamental argument, which is that there is no more fundamentally
important role for a jury fairly drawn from the community than determining
whether a defendant should live or die.207 They read Hurst as recognizing a more

206

Hurst, 136 S. Ct. at 619.
See, e.g., Br. of Charles Hamilton Houston Institute for Race and Justice at 9–12 (hereinafter
―C. H. Houston Br.‖).
207

58

 essential consideration that has been obscured in the complexity of the
post-Furman world, which is that the Sixth Amendment right to a jury has perhaps
its most powerful importance when the question is whether the defendant should
live or die.
B.
Against this backdrop of § 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 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
208

U.S. Const. amend. VI.

59

 is clearly so under our own statute, which plainly requires that a specific finding be
made before a death sentence can be issued.209 That finding is whether ―the
aggravating circumstances found to exist outweigh the mitigating circumstances
found to exist.‖210 Our prior decisions have often noted that sentencing decisions,
including those in the death penalty context, involve an exercise of discretion
based on a weighing of facts.211 In doing so, we broke no ground, but simply
recognized an obvious reality reflected broadly in American jurisprudence that the
weighing of aggravating and mitigating factors is ―a clear factfinding directive to
which there is no exception.‖212 Thus, the question in this context is not whether
factual determinations are involved in the weighing phase of capital sentencing,
but whether the Sixth Amendment requires those factual judgments to be made by
a jury.
In one sense, the answer to the certified questions could be simple. If when
Hurst said ―necessary,‖ it meant that, then Delaware‘s death penalty statute is
209

See 11 Del. C. § 4209(c)–(d).
Id. § 4209(c)(3).
211
See, e.g., Zebroski v. State, 715 A.2d 75, 84 (Del. 1998) (―The balancing of aggravating and
mitigating circumstances is not a quantitative exercise, but rather a reasoned judgment as to what
factual situations require the imposition of death and which can be satisfied by life imprisonment
in light of the totality of the circumstances present.‖ (emphasis added) (internal quotation marks
omitted)); Ferguson v. State, 642 A.2d 772, 782 (Del. 1994) (―The weighing of aggravating and
mitigating circumstances involves a qualitative rather than a quantitative consideration of the
circumstances to determine the appropriate punishment. That qualitative process requires that
the jury and the judge carefully consider the specific facts of each case and, when appropriate,
not to give one or more aggravating factors independent weight.‖ (internal quotation marks
omitted) (footnotes omitted)).
212
Cunningham v. California, 549 U.S. 270, 279 (2007); see also CAMPBELL, supra note 31,
§ 9.3 at 354–59.
210

60

 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.‖213 If those words mean what they say,
they extend the role of a death penalty jury beyond the question of eligibility.
Even more, these words seem to be the latest spade work in the judicial unearthing
of an unattractive byproduct of a lengthy period of judicial innovation.
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

213

Hurst, 136 S. Ct. at 619.

61

 a unanimous jury does not believe that is the correct penalty. 214 What has emerged
is a system whereby there is a strange admixture of the role of judge and jury in
this most sensitive of areas—an admixture that allows a defendant to go to his
death without a jury of his peers unanimously concluding that he should do so.
Although perhaps not compelled to do so by the formal logic of Hurst,215 I am
persuaded that it is not tenable under the broader logic of the case, and a
consideration of related provisions of the Constitution, including the Eighth
Amendment, to pretend any longer that this admixture is consistent with the
fundamental guarantee of a jury trial as it was understood throughout most of our
history—one in which ―[t]he Founders viewed juries as so fundamental to the
democratic experience that the right to a jury in criminal trials is the only right
expressly included twice in the Constitution‖216—and as most states still
understand it today.217

214

See Woodson, 428 U.S. at 289–93; McGautha v. California, 402 U.S. at 200 nn. 10, 11; see
also Green, supra note 17, at 421–25.
215
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.
216
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

62

 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 nonarbitrary way.218 In Furman and the decisions that followed it, the Supreme Court
said that states could not find that certain crimes, such as intentional murder, were

value they set upon the trial by jury . . . .‖); Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4 (1794)
(Chief Justice John Jay instructed the jury: ―It may not be amiss, here, Gentlemen, to remind
you of the good old rule, that on questions of fact, it is the province of the jury, on questions of
law, it is the province of the court to decide. But it must be observed that by the same law,
which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to
take upon yourselves to judge of both, and to determine the law as well as the fact in
controversy. On this, and on every other occasion, however, we have no doubt, you will pay that
respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that
juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best
judges of law. But still both objects are lawfully, within your power of decision.‖); Zylstra v.
Corp. of Charleston, 1 S.C.L. (1 Bay) 382, 389 (1794) (―[T]he trial by jury is a common law
right; not the creature of the constitution, but originating in time immemorial; it is the inheritance
of every individual citizen, the title to which commenced long before the political existence of
this society; and which has been held and used inviolate by our ancestors in succession from that
period to our own time; having never been departed from, except in the instances before
mentioned. This right then, is as much out of the reach of any law, as the property of the citizen;
and the legislature has no more authority to take it away, than it has to resume a grant of land
which has been held for ages.); Klein & Steiker, supra note 45, at 265 (―Throughout this
country‘s history, judge sentencing has been the norm in the non-capital context, and jury
sentencing has been the norm in capital cases.‖); Hoffman, supra note 6, at 967; Roger Roots,
The Rise and Fall of the American Jury, 8 SETON HALL CIRCUIT REV. 1, 6 (2011) (―‗When courts
exercised their properly judicial (as opposed to administrative) functions, the decision-makers
were juries. The most striking feature of colonial sentencing was the bare modicum of authority
that judges actually exercised.‘‖ (quoting JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND
THE IDEAS IN THE MAKING OF THE CONSTITUTION 30 (1996))).
217
See Woodward, 134 S. Ct. at 407 (Sotomayor, dissenting from denial of cert.) (citations
omitted)); 6 LAFAVE, ET AL., supra note 12, § 26.2(b), at 699; see also Lillquist, supra note 6, at
650.
218
See, e.g., Ring, 536 U.S. at 610 (Scalia, J. concurring).

63

 so heinous that a verdict of guilt automatically resulted in a death sentence. 219
Instead, each defendant, regardless of whether he committed an intentional murder,
had a right to have the sentencing authority consider all mitigating factors and
weigh them against the aggravating factors.220 And, of course, the full bite of
Strickland v. Washington221 enforced the duty of counsel to present those factors
with effectiveness. Not only that, to avoid arbitrariness, statutes were revised to
include procedures such as the proportionality review as a way to ensure that
capital punishment was meted out non-capriciously.222 It was these and other
mandates that states like Delaware reacted to in shaping their current death penalty
statutes. Even my long earlier account of the evolution of past death penalty
jurisprudence slights the complexity of the law in this area. For present purposes,
what must be acknowledged is that much effort has been expended by many states
since Furman, including by our own,223 to design procedures that complied with
the intricate Supreme Court case law designed to ensure that capital sentences
would only issue in conformity with the Constitution.
Obscured in the complexity of the Furman line of cases, however, was
something fundamental:

The overwhelming trend before 1972 was that a

219

See supra note 84 and accompanying text.
See supra notes 85, 91–92 and accompanying text.
221
466 U.S. 668 (1984).
222
See Garvey, supra note 45, at 997–98; Liebman, supra note 52, at 28; supra note 69 and
accompanying text.
223
See Johnson et al., supra note 40, at 1931; Hans et al., supra note 36, at 73–78 (same).
220

64

 defendant was not sentenced to death without the support of a unanimous jury of
the defendant‘s peers determining that was appropriate.224

Scholars225 and

judges226 have set forth this history in compelling terms. In fact, the U.S. Supreme
Court itself expressed the importance of jury sentencing in capital cases in Winston
v. United States227 in 1899:
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,229 the Supreme Court in 1968 described the jury‘s role in
capital cases as ―express[ing] the conscience of the community on the ultimate
question of life or death.‖230

224

See supra notes13–15, 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).
226
See, e.g., Woodson, 428 U.S. at 289–93 (Stewart, J.); Hoffman, supra note 6, at 963–68.
227
172 U.S. 303 (1899).
228
Id. at 313.
229
See supra note 44 and accompanying text.
230
Witherspoon, 391 U.S. at 519; see also Furman, 408 U.S. at 439–40 (Powell, J., dissenting);
Gregg, 428 U.S. at 181.
225

65

 That juries historically acted as the sentencing authorities in capital cases is
not an anomaly. Rather, it makes sense. After all, it was the jury‘s role as the
conscience of the community on issues of proportionality and mercy that was
recognized as making its role in capital sentencing so vital. 231 As Declaration of
Independence signee and future federal judge Francis Hopkinson wrote in 1786:
[The authority to sentence] can no where be lodged so safely as with
the jury who find the fact. The proportion of punishment, equitably
due according to the nature of the offence, is not a question involved
in the technical subtleties of the law; but arises from the particular
circumstances of the case, . . . and an honest, impartial, and
conscientious jury, are as competent to this purpose, as the most
profound judge. They will necessarily have heard the state of the
whole matter, with the arguments for the prosecution, and in behalf of
the prisoner; and being a temporary body, accidentally brought
together, and impaneled for the occasion, are more likely to do
substantial justice, than a judge who is so hackneyed in criminal
prosecutions. . . .232
Given the significance that jury sentencing has historically had, then, it should
come as no surprise that ―jury sentencing is . . . the norm for capital cases.‖233
Further, one need look no further than the aggravating and mitigating factors
that the U.S. Supreme Court approved for use in making capital sentencing
determinations to see the factual nature of questions involved and how they came
to bear on the issue of what punishment the defendant should suffer. As to
231

See Winston, 172 U.S. at 313; see also Carr, 136 S. Ct. at 642; Andres, 333 U.S. at 753–54
(Frankfurter, J., concurring); Garden, 815 A.2d at 344; White, supra note 13, at 30–31.
232
2 THE MISCELLANEOUS ESSAYS AND OCCASIONAL WRITINGS OF FRANCIS HOPKINSON, ESQ.
101–02 (1792).
233
6 LAFAVE, ET AL., supra note 12, § 26.2(b), at 699.

66

 aggravating factors, for example, the sentencing authority may consider ―whether
the crime was committed in the course of one of several enumerated felonies,
whether it was committed for pecuniary gain, whether it was committed to assist in
an escape from custody or to prevent a lawful arrest, and whether the crime was
especially heinous, atrocious, or cruel.‖234 As to mitigating factors, approved
considerations include ―whether the defendant has a prior criminal record, whether
the defendant acted under duress or under the influence of extreme mental or
emotional disturbance, whether the defendant‘s role in the crime was that of a
minor accomplice, and whether the defendant‘s youth argues in favor of a more
lenient sentence than might otherwise be imposed.‖235 The core of each of these
questions is a factual inquiry that a cross-section of the community is best suited to
make.236

And on an even more basic level that extends beyond the capital

sentencing context, appellate courts give enormous deference to a judge‘s or jury‘s
sentencing determination precisely because of the factual nature of the issues
involved in sentencing generally and the inescapable requirement for the

234

Proffitt, 428 U.S. at 251; see also Schriro v. Summerlin, 542 U.S. 348, 361–62 (2004)
(Breyer, J., dissenting).
235
Proffitt, 428 U.S. at 251.
236
See Carr, 136 S. Ct. at 642; Stevenson, supra note 45, at 1121.

67

 sentencing authority to apply its discretionary sense of conscience and mercy to the
case at hand.237
In my view, Hurst has starkly revealed a perverse result of some of the
post-Furman efforts to adopt capital sentencing schemes that are constitutionally
satisfactory, which is that perhaps the most fundamental protection of the Sixth
Amendment has been dropped from the panoply of rights accorded to the
defendant—the right to be put to death only if twelve members of his community
agree that should happen.238 There are, of course, reasons why this fundamental
issue has been elided. They include the reality that for most crimes, judges make
the key sentencing determination. Times have changed greatly since the founding,
when prison sentences were rare, and with changing times has come a diminution
(although by no means an elimination)239 of statutorily mandated sentences. Some
cognitive dissonance can be caused by holding that, unlike other sentencing
options, a sentence of death may only be issued consistent with the Sixth
Amendment if the jury itself believes that is appropriate.
237

See 24 C.J.S. Criminal Law § 2374 Westlaw (database updated 2016); see also Caldwell v.
Mississippi, 472 U.S. 320, 340 n.7 (1985); Dorszynski v. United States, 418 U.S. 424, 431
(1974); 3 CHARLES ALAN WRIGHT ET AL., FED. PRAC. & PROC. CRIM. § 552 (4th ed. 2016).
238
See Gregg, 428 U.S. at 190; Ring, 536 U.S. at 616 (Breyer, J., concurring); Harris, 513 U.S.
at 526 (Stevens, J., dissenting); Gillers, supra note 70, at 89; MANDERY, supra note 8, at 164
(internal quotation marks omitted)); see also Woodward, 134 S. Ct. at 410 (Sotomayor, J.,
dissenting from denial of cert.).
239
E.g., Quick Facts: Mandatory Minimum Penalties, 28 FED. SENT. R. 217, 217 (2016) (of the
nearly 76,000 cases reported to the U.S. Sentencing Commission in 2014, offenders in 23.6% of
cases were ―convicted of an offense carrying a mandatory minimum penalty,‖ and at sentencing,
13.6% of offenders ―remained subject to a mandatory minimum penalty‖).

68

 But if ever Emerson‘s famous maxim had purchase, it would be here. The
Supreme Court has long said that ―death is different.‖240 Furman was based on
that notion, and however Balkanized the five votes in Furman were, that case has
remained part of our nation‘s jurisprudence for forty-four years.241 Many cases
recognize that the Constitution‘s protections apply with special force to capital
cases, because of their uniquely high stakes.242 No doubt there are Justices who
have disclaimed any explicit reliance on the distinction between a case involving a
potential for a death sentence and one involving only potential incarceration. Still,
it is easy to say that the approach taken in, for example, Strickland cases—which
suggest that what an attorney must do to be effective in a death penalty case
involves greater effort than in a non-capital case243—arises from the recognized
principle that when what is at stake is of greater importance, what is a reasonable
effort must be measured against that reality. Of course, that is another way in this

240

Many cases stand for this proposition. E.g., Streetman v. Lynaugh, 484 U.S. 992, 995 (1988);
Ford v. Wainwright, 477 U.S. 399, 411 (1986); see also Beck v. Alabama, 447 U.S. 625, 637
(1980); Rummel v. Estelle, 445 U.S. 263, 272 (1980); Gardner v. Florida, 430 U.S. 349, 357–58
(1977); Harmelin v. Michigan, 501 U.S. 957, 993–94 (1991); Pennell v. State, 604 A.2d 1368,
1375 (Del. 1992); see also Scott W. Howe, The Futile Quest for Racial Neutrality in Capital
Selection and the Eighth Amendment Argument for Abolition Based on Unconscious Racial
Discrimination, 45 WM. & MARY L. REV. 2083, 2157 (2004).
241
See Glossip v. Gross, 135 S. Ct. 2726, 2759–64 (2015); Wright v. State, 633 A.2d 329, 336–
37 (Del. 1993) (same).
242
See Gilmore v. Taylor, 508 U.S. 333, 342 (1993); Murray v. Giarratano, 492 U.S. 1, 8–9
(1989) (quoting Lockett, 438 U.S. at 604) (internal citations omitted)); Ake v. Oklahoma, 470
U.S. 68, 86 (1985) (Burger, C.J., concurring); Walton, 497 U.S. at 657 (Scalia, J., dissenting).
243
See Williams v. Taylor, 529 U.S. 362, 396–99 (2000); Wiggins v. Smith, 539 U.S. 510, 523–
25 (2003); Rompilla v. Beard, 545 U.S. 374, 388–89 (2005); Douglass, supra note 6, at 1986–87.

69

 context of taking into account that death is different, a point the Supreme Court has
made by:
 Narrowing the class of crimes for which the death penalty may be
imposed by holding that death may not be imposed for rape of an
adult woman,244 kidnapping,245 murder where the defendant had not
killed, attempted to kill, or intended to kill anyone,246 and rape of a
child that does not result in the child‘s death;247
 Narrowing the class of defendants eligible for the death penalty by
holding that the death penalty may not be imposed upon defendants
who are insane,248 mentally retarded,249 or minors;250 and
 Continually explaining that capital sentencing requires special
considerations and rules that are not applicable in non-capital
sentencing, including special hearsay considerations,251 special
consideration of mitigating aspects of a defendant‘s character,252 and
mandatory consideration of lesser-included offenses.253
244

See Coker v. Georgia, 433 U.S. 584, 592 (1977).
See Ebheart v. Georgia, 433 U.S. 917, 917 (1977).
246
See Enmund, 458 U.S. at 798–801; see also Harmelin, 501 U.S. at 994.
247
See Kennedy v. Louisiana, 554 U.S. 407, 412 (2008).
248
Ford v. Wainwright, 477 U.S. 399, 410 (1986).
249
Atkins v. Virginia, 536 U.S. 304, 321 (2002).
250
See Roper v. Simmons, 543 U.S. 551, 568 (2005); see also Thompson v. Oklahoma, 487 U.S.
815, 838 (1988).
251
See Green v. Georgia, 442 U.S. 95, 97 (1979).
252
See Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality).
253
See Beck, 447 U.S. at 627; see also Powell v. Alabama, 287 U.S. 45, 71 (1932) (―[I]n a capital
case, where the defendant is unable to employ counsel, and is incapable adequately of making
his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of
the court, whether requested or not, to assign counsel for him as a necessary requisite of due
process of law; and that duty is not discharged by an assignment at such a time or under such
circumstances as to preclude the giving of effective aid in the preparation and trial of the case.‖);
Williams v. Florida, 399 U.S. 78, 103 (1970) (holding that the Sixth Amendment does not
require the use of a jury of twelve in noncapital cases); Gardner, 430 U.S. at 362 (holding that a
death sentence imposed even in part upon information which the offender had no opportunity to
deny or explain violates the defendant‘s due process); Roberts v. Louisiana, 431 U.S. 633, 637–
38 (1977) (holding that mandatory death penalty for a particular crime violates the Eighth
Amendment); Presnell v. Georgia, 439 U.S. 14, 15–17 (1978) (per curiam) (holding that death
sentence cannot be based on an aggravating factor that was previously used to establish guilt);
245

70

 For present purposes, the precise reason why that inspires the differential approach
is immaterial. The important thing is the undisputed reality that the Supreme Court
often applies the protections of the Constitution differently to death penalty cases
than to other criminal cases.254
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
Godfrey v. Georgia, 446 U.S. 420, 428–29 (1980) (because of the death penalty‘s unique nature,
the Constitution requires that states clearly define the aggravating factors that can result in death
sentences); Caldwell v. Mississippi, 472 U.S. 320, 341 (1985) (the Eighth Amendment prohibits
a death sentence determination to be made by a jury which is told that the ultimate responsibility
for determining the appropriateness of death rests with appellate courts); Turner v. Murray, 476
U.S. 28, 36–37 (1986) (because of ―the special seriousness of the risk of improper sentencing in
a capital case,‖ ―a capital defendant accused of an interracial crime is entitled to have prospective
jurors informed of the race of the victim and questioned on the issue of racial bias‖); Sumner,
483 U.S. at 77 (answering question that was expressly reserved in Roberts v. Louisiana and
holding that the Eighth Amendment prohibits a mandatory death sentence for murder in prison
by an inmate serving a life sentence); Burger v. Kemp, 483 U.S. 776, 785 (1987) (―Our duty to
search for constitutional error with painstaking care is never more exacting than it is in a capital
case.‖); Mills v. Maryland, 486 U.S. 367, 377 (1988) (―In reviewing death sentences, the Court
has demanded even greater certainty that the jury‘s conclusions rested on proper grounds.‖);
Lankford v. Idaho, 500 U.S. 110, 127 (1991) (defendant‘s ―lack of adequate notice that the judge
was contemplating the imposition of the death sentence‖ violated the defendant‘s constitutional
rights); Simmons v. South Carolina, 512 U.S. 154, 168–69 (1994) (when a capital defendant‘s
future dangerousness is at issue and the only alternative sentence to death is life imprisonment
without possibility of parole, the defendant has the right to inform the jury of her ineligibility of
parole); see also 1 LAFAVE, ET AL., supra note 12, § 1.8(e), at 415–17; 6 LAFAVE, ET AL., supra
note 12, § 26.1(b), at 673–76.
254
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).

71

 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.255

That rationalization is this unsatisfactory one:

Having

interpreted the Constitution to make states comply with procedures after Furman
that were not recognized before it, it would be unfair to make states do so while
requiring them to condition any death sentence on a unanimous jury verdict to that
effect.
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,256 a consideration of the Constitution itself and its purposes is more
important.257

And the cursory rejection of the Sixth Amendment claims in

255

See Gillers, supra note 70, at 18 (―[E]ach 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 Furman‘s 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.‖).
256
See Stevenson, supra note 45, at 1103 (―Looking back on the entire line of pre-Ring cases on
the right to jury sentencing in capital cases, it is apparent that the die was indelibly cast in
Proffitt [v. Florida, 428 U.S. 242 (1976)] and Spaziano.‖).
257
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

72

 Spaziano and Hildwin by conclusory language without persuasive reasoning for
support is a gruel too thin to sustain the failure to recognize the vital importance of
the jury‘s role in the capital sentencing process.

Hurst, of course, overruled

Spaziano and Hildwin only in relevant part, but I cannot discern interpretive
wisdom in those cases that survives Hurst, if it was ever existent.258 And to the
extent early post-Furman cases like Proffitt were grounded in the hypothesis that
judges would be better positioned to ensure the proportional, non-discriminatory
application of the death penalty than unanimous juries drawn from the

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, 17 U.S. (4 Wheat.) 316, 407 (1819)) (emphasis in original)); see also
Duncan, 391 U.S. at 155–56 (―The guarantees of jury trial in the Federal and State Constitutions
reflect a profound judgment about the way in which law should be enforced and justice
administered. A right to jury trial is granted to criminal defendants in order to prevent
oppression by the Government. Those who wrote our constitutions knew from history and
experience that it was necessary to protect against unfounded criminal charges brought to
eliminate enemies and against judges too responsive to the voice of higher authority. The
framers of the constitutions strove to create an independent judiciary but insisted upon further
protection against arbitrary action. Providing an accused with the right to be tried by a jury of
his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and
against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense
judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge,
he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions
reflect a fundamental decision about the exercise of official power—a reluctance to entrust
plenary powers over the life and liberty of the citizen to one judge or to a group of judges.‖).
258
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.‖).

73

 community,259 empirical evidence since then seems to have contradicted that
prediction.260 As one scholar has explained:
[W]hen it comes to capital cases, there is no historical support for the
line that Ring attempts to draw between factfinding to establish death
eligibility, on the one hand, and the ultimate sentencing, or selection
decision, on the other. There simply was no eighteenth-century
practice that limited juries to a purely factfinding role, while granting
judges the ultimate power to choose a death sentence. To the
contrary, in 1791—and indeed for more than a century thereafter—the
unified nature of capital trials left the ultimate decision of life or death
in the hands of juries.261
To my mind, the deeper logic of Apprendi, Ring, and Hurst cannot be
confined neatly to the death eligibility stage of a capital case.262 That confinement

259

See Proffitt, 428 U.S. at 252 (―[I]t would appear that judicial sentencing should lead, if
anything, to even greater consistency in the imposition at the trial court level of capital
punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is
better able to impose sentences similar to those imposed in analogous cases.‖ (internal citation
omitted)).
260
See, e.g., Hoffman, supra note 6, at 985–90; Iontcheva, supra note 17, at 356–60. As our
own state‘s experience since Furman 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.
261
Douglass, supra note 6, at 2022.
262
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 lacks 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 to death.‖); White, supra note 13, at
30 (―[F]rom a functional perspective, the content of the specific aggravating circumstances
enumerated in a sentencing statute is not critical. Regardless of the specific aggravating and
mitigating circumstances to be determined, the sentencer is required to make an essentially moral
judgment as to whether the defendant should live or die. Thus, it may be argued that the capital
defendant's right to jury trial should not vary depending on the particular aggravating
circumstances to be determined.‖); Hoffman, supra note 6, at 982 (―The Court [in Apprendi and

74

 can be done only by accepting an admixture of the historical understanding of the
role of the jury, based on the (understandable, but not ultimately satisfying) notion
that states have to be given wiggle room after Furman, because Furman unsettled
long-standing practices.263
Likewise, I do not find convincing an attempt to draw fine lines between the
role of the jury as a fact-finder and the role played by the sentencing authority.
Since Furman, it has been understood that whatever authority is given the power to
determine the sentence in a capital case must consider the relevant aggravating and
mitigating factors, balance them, have an option to give life, and base any
determination to give a death sentence on a determination that the aggravating

Ring] seems balanced on an impossibly difficult saddlepoint: if the Sixth Amendment means
anything, it must mean that legislatures cannot deprive criminal defendants of their right to a jury
trial by the simple artifice of labeling elements as ‗sentencing factors‘; yet there seems to be no
principled basis upon which to truly distinguish elements from sentencing factors. This dilemma
is so sharp that the slightest change of perspective or wording by one or two Justices seems to
have a magnified effect on the outcomes in these cases.‖); id. at 1000 (―Of course, the very
reason Apprendi leads to the threshold of jury sentencing is because of the impossible
distinctions it forces the system to make between the jury‘s role in deciding ‗elements‘ and the
judge‘s role in deciding ‗sentencing factors.‘‖).
263
See Douglass, supra note 6, at 1972–73 (―Unitary capital trials were the 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.

75

 factors outweigh those mitigating for the comparatively more merciful one. 264 Not
only does this involve a consideration of the facts, it results in a decision of
existential fact: Whether the defendant should live or die. If U.S. Supreme Court
jurisprudence has and therefore can turn on a determination that death is
different,265 it is certainly appropriate to recognize that the decision to give death or
life is the most important one that can be made in any criminal trial, and that the
Sixth Amendment right was understood as of its adoption and for much of our
history as allocating that authority to the jury.266
As this discussion suggests, the intricacy of the judicially built regime for
capital sentencing has contributed to legal arguments, and even judicial opinions,
built on non-bearing foundations. Perhaps fearing that determining that the Sixth
Amendment requires that any death sentence be predicated at minimum on a
unanimous jury verdict would somehow require a determination that the Sixth
Amendment also requires that a jury determine any criminal sentence, judicial
opinions have taken the view that it is only those fact findings that make a

264

See Eddings, 455 U.S. at 117; Gregg, 428 U.S. at 206–07.
See supra note 240 and accompanying text.
266
See Furman, 408 U.S. at 449 (Powell, J., dissenting) (quoting McGautha, 402 U.S. at 207));
see also Witherspoon, 391 U.S. at 518–22 (explaining the vital role a jury plays in capital
sentencing and holding that a jury that excludes jurors opposed to capital punishment violates the
defendant‘s Sixth and Fourteenth Amendment right to an impartial sentencer); supra note 45 and
accompanying text.
265

76

 defendant eligible to receive a death sentence that must be made by a jury.267 In
other words, they read the Sixth Amendment jury right as extending only up to
those findings they view as necessary to establish the minimum and maximum
sentences, even though other trial rights in the Constitution persist throughout the
full sentencing process, whether the sentence is imposed by a judge or jury. 268 The
logic these opinions are missing, however, is that because the U.S. Supreme Court
has held that a consideration of mitigating factors, and a balancing of the
aggravating and mitigating factors are prerequisites to death, the weighing stage of
capital sentencing will always be ―necessary‖ for the imposition of a death
sentence.269 That is, because the constitutionally required weighing phase comes
after the finding of a death eligibility factor, a step necessary for the imposition of
death will always remain after the eligibility phase occurs and no state will be able

267

See, e.g., Bell v. Cone, 543 U.S. 447, 454 n.6 (2005); United States v. Gabrion, 719 F.3d 511,
533 (6th Cir. 2013); People v. Montour, 157 P.3d 489, 498 (Colo. 2007); Brice, 815 A.2d at 322;
see also Jeffrey Abramson, Death-Is-Different Jurisprudence and the Role of the Capital Jury
OHIO ST. J. CRIM. L. 117, 121 (2004).
268
See, e.g., Mitchell v. United States, 526 U.S. 314, 327 (1999) (the Fifth Amendment right
against compelled self-incrimination extends to sentencing); McConnell v. Rhay, 383 U.S. 2, 3–4
(1968) (―[The Sixth Amendment right to counsel extends through sentencing and] must . . . be
treated like the right to counsel at other stages of adjudication.‖).
269
See Woodward, 134 S. Ct. at 411 (Sotomayor, dissenting from denial of cert.); Blystone v.
Pennsylvania, 494 U.S. 299, 322 n.15 (1990) (Brennan, J., dissenting); see also Douglass, supra
note 6, at 2004; Criminal Procedure—Confrontation Clause—Fourth Circuit Finds No Right to
Confrontation During Sentence Selection Phase of Capital Trial, 128 HARV. L. REV. 1027, 1032
(2015); Margery Malkin Koosed, Averting Mistaken Executions by Adopting the Model Penal
Code’s Exclusion of Death in the Presence of Lingering Doubt, 21 N. ILL. U. L. REV. 41, 101
(2001).

77

 to draft a statute in which the factual findings that occur after the eligibility phase
are not necessary for death.
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.270 This judicial interpretation led to Justices tussling over whether it is
applicable only to the maximum, or also to the minimum, 271 a debate resolved only
in 2013 in Alleyne v. United States272 in favor of it applying it to both. This
approach is often justified as considering factual findings necessary to set a range
of sentence as an element of the crime itself,273 even though that is formally not the
case. They treat the factors making the defendant eligible for a higher punishment
as essentially ―elements‖ of an ―aggravated‖ version of the underlying crimes. 274
And as to this point, it is not clear what constitutional line exists involving facts
that aggravate toward greater punishment or those that mitigate toward leniency.

270

See Apprendi, 530 U.S. at 475–76.
Compare Harris, 536 U.S. at 565–66 (finding that juries need only determine any fact that
increases a maximum authorized sentence, and not a fact that increases a minimum sentence),
with id. at 577–78 (Thomas, J., dissenting) (arguing that juries must also determine any fact that
increases a minimum sentence).
272
133 S. Ct. 2151 (2013) (overruling Harris, 536 U.S. 545).
273
See id. at 2158.
274
See id. at 2161.
271

78

 These are both key factual components, and yet only the former are even
considered in Ring and Hurst.275 Perhaps that is because mitigating factors do not
go the maximum sentence. But, a consideration of the mitigating factors is every
bit as crucial—as necessary—to the determination of life or death.276 In Blakely v.
Washington, as noted, the Supreme Court said ―that the ‗statutory maximum‘ for
Apprendi purposes is that maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the defendant.‖277 If
that is so, in the death penalty context, the fact finding necessary to sentence a
defendant to death cannot avoid a consideration of mitigating factors too.
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
275

See Hurst, 136 S. Ct. at 621–24; Ring, 536 U.S. at 597–609.
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, 172 U.S. at
310–12; Witherspoon, 391 U.S. at 528.
277
Blakely, 542 U.S. at 303 (emphasis in original).
276

79

 sentencing process, and because Supreme Court jurisprudence such as Woodson
requires that any death sentence be premised upon a consideration of whether the
aggravating factors outweigh those in mitigation, gotcha arguments with a
somewhat artificial quality naturally arise.278

Seizing on the reality that any

ultimate and rational sentencing determination that involves the discretion to give a
heavier or lighter punishment will involve the sentencing authority‘s exercise of
weighing the circumstances that justify a greater sentence against those counseling
for a lesser one, advocates can logically argue that any death sentence must be
made by a jury.279 Why? Because the Supreme Court-mandated default is that a
defendant receive a life, not death sentence, unless it is ultimately found that the
aggravating circumstances outweigh those in mitigation. As the Supreme Court
noted in Kansas v. Marsh,280 ―the State always has the burden of demonstrating

278

For example, it is possible to form this gotcha syllogism that has the effect of grounding a
holding that a unanimous jury verdict must buttress any death penalty judgment. That would go
like this. States cannot make the death penalty the mandatory punishment for any crime. See
Woodson, 428 U.S. at 303. Nor can a state execute a defendant before both the aggravating and
mitigating factors are fairly considered, and rationally weighed against each other and the factors
that weigh in favor of death are found to outweigh those mitigating against it. See id. at 303–04;
Jurek, 428 U.S. at 271. As a result, the default penalty will always be life imprisonment, absent
a specific fact intensive inquiry beyond the stage where guilt and even death eligibility is the sole
factor. See Marsh, 548 U.S. at 179. Thus, as this would go, when you put together all the
Supreme Court cases, a jury must now determine whether any defendant should get the death
penalty.
279
See, e.g., Hoffman, supra note 6; Iontcheva, supra note 17; Sam Kamin & 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).
280
548 U.S. 163.

80

 that mitigating evidence does not outweigh aggravating evidence. Absent the
State‘s ability to meet that burden, the default is life imprisonment.‖281

By

considering this a ―fact finding‖ essential to the imposition of a death sentence,
voila, a Sixth Amendment right is created. But, rather than this conclusion being
the result of a focused consideration of the jury right in the Sixth Amendment and
what it means, this conclusion emerges as the product of piecing together judicial
decisions, all of which were rendered in the last fifty years. And the conclusion is
therefore only as good as you think the prior decisions were, and if they, as some
have felt, were not based on an accurate reading of the Constitution, the outcome is
hardly convincing.282 Thus, the retort to this line of reasoning is available to those
making it only because of prior cases that, in the view of jurists and advocates of a
different view, imposed upon the states a regime of death penalty jurisprudence not
recognized in this nation until the 1970s.
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

281

Id. at 178–79; see also Sattazahn v. Pennsylvania, 537 U.S. 101, 110 (2003).
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 point); see also Hoffman, supra note 6, at 976–77.
282

81

 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 entirely of its own construction. The hazards for statute writers,
prosecutors, defense attorneys, defendants, trial courts, and state appellate judges
of trying to anticipate what designs will prove durable are formidable.

In

particular, determining the respective roles of jury and judge has been especially
challenging.
In deciding as I do, I therefore am reluctant to rest my answers on this kind
of reasoning, because there is no predictable or principled way to choose between
these approaches, which turn on irresolvable debates about what current or future
Justices might think about the wisdom, meaning, and application of complex
precedent to state legislative attempts to comply with the post-Furman mandates.
Those who argue that a greater role for the jury is required do not want a full return
to pre-Furman practices.283 Those who argue that the jury‘s role can stop short of
capital sentencing itself contend that it would be unfair to the states to lard a jury
sentencing requirement on top of judicially constructed death penalty requirements
that were established only since the early 1970s.284
283

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).
284
See, e.g., Ring, 536 U.S. at 610 (Scalia, J., concurring) (―What compelled Arizona (and many
other States) to specify particular ‗aggravating factors‘ that must be found before the death
penalty can be imposed was the line of this Court‘s cases beginning with Furman v. Georgia. In
my view, that line of decisions had no proper foundation in the Constitution. I am therefore

82

 Instead of entering a guess-work world to which I am an outsider, I prefer to
isolate the fundamental interests at stake. Accepting Furman, for all its fractures,
as establishing that states cannot establish crimes for which death is the automatic
sentence, and accepting Gregg and its progeny as establishing that any death
sentence must be based on a rational consideration of the aggravating and
mitigating factors and that there must be an option to give life, I also accept
another reality of the case law, which is that the Supreme Court cases acknowledge
what our history shows, which is that death is different.285 Under this line of cases,
fact findings beyond eligibility are not optional; they must be made and are
necessary. Rather than write more and more intricate judicial decisions parsing
different kinds of fact findings, I conclude that Hurst is best read as restoring
something basic that had been lost. At no time before Furman was it the general
practice in the United States for someone to be put to death without a unanimous
jury verdict calling for that final punishment. Overlooking the role juries played in
capital sentencing before Furman and its progeny altered the status quo would be
ignoring nearly 200 years of our nation‘s customs and traditions.

reluctant to magnify the burdens that our Furman jurisprudence imposes on the States. Better for
the Court to have intended an evidentiary requirement that a judge can find by a preponderance
of the evidence, than to invent one that a unanimous jury must find beyond a reasonable
doubt.‖); see also Lillquist, supra note 6.
285
See supra note 240 and accompanying text.

83

 The U.S. Supreme Court has often drawn lines regarding when
constitutional rights come into play and when they are transgressed.286 That has
long been true in criminal law itself.287 If, as I conclude, the jury right is a
fundamental one that was understood at founding to involve the right to have a jury
determine whether a death sentence should be imposed,288 then that right should be
enforced. The recognition that death is different is not one first made by judges in
the 1970s. It was recognized throughout our nation‘s history, and was a key reason
why a jury was required to unanimously agree that any death sentence would be
imposed. There is no more important part of the criminal trial process than the
sentencing phase in a capital case. In allowing judges rather than juries to make ―a
choice between life and death,‖ the Delaware statute ―sanctions a practice that the
Framers never saw and would not have tolerated.‖289 Throughout our history,

286

See, e.g., South Dakota v. Dole, 483 U.S. 203, 207–08 (1987) (establishing five-part test for
determining when Congress‘s conditional spending is Constitutional); Tinker v. Des Moines
Indep. Sch. Dist., 393 U.S. 503, 509 (1969) (establishing ―Tinker test‖ for determining whether a
school‘s censuring speech violates the First Amendment).
287
See, e.g., Crawford v. Washington, 541 U.S. 36, 68 (2004) (reformulating test for determining
whether hearsay statements are admissible under the Sixth Amendment‘s Confrontation Clause);
Illinois v. Gates, 462 U.S. 213, 230–39 (1983) (establishing test for determining when probable
cause exists under Fourth Amendment).
288
See Spaziano, 468 U.S. at 484 (Stevens, J., dissenting) (―[T]he lesson history teaches is that
the jury—and in particular jury sentencing—has played a critical role in ensuring that capital
punishment is imposed in a manner consistent with evolving standards of decency. This is a
lesson of constitutional magnitude, and one that was forgotten during the enactment of the
Florida statute.‖); supra note 216 and accompanying text.
289
Douglass, supra note 6, at 1974; see also id. at 2012–15; Lillquist, supra note 6, at 650;
Hoffman, supra note 6, at 964.

84

 capital sentencing has been a ―responsibility traditionally left to juries,‖ 290 and the
decision of whether a ―fellow citizen should live or die‖ has been considered a
responsibility too great for any one person to make alone.291
*

*

*

Two other considerations are at play here. First, as members of the U.S.
Supreme Court have eloquently written, disconnecting the right to a jury from the
death penalty creates a strong argument that the resulting punishment is unusual.292
The reason for that is that the role of the jury was understood as especially critical
when the punishment for a crime involved death, and that a defendant should be
executed only if a jury of his peers unanimously determined that was so. It was
understood that this would make giving a death sentence harder in some important
circumstances, and that was why the jury right was important.

By sending

someone to the grave based on the determination, not of a unanimous jury, but
simply of a judge, a state denies the defendant a fundamental procedural protection
long part of the American tradition. The unanimous jury requirement also best
assures that defendants are sent to death only when a representative sample of the
290

Adriaan Lanni, Jury Sentencing in Noncapital Cases: An Idea Whose Time Has Come
(Again)?, 108 YALE L.J. 1775, 1800 (1999).
291
James Wilson, Lectures of James Wilson, in 2 COLLECTED WORKS OF JAMES WILSON 1008–
09 (Kermit L. Hall & Mark David Hall, eds., 2007)
292
See Hurst, 136 S. Ct. at 624 (Breyer, J., concurring); Schriro, 542 U.S. at 360 (Breyer, J.,
dissenting); Ring, 536 U.S. at 619 (Breyer, J., concurring); Harris, 513 U.S. at 515–16, 519–20
(Stevens, J., dissenting); Patten v. Florida, 474 U.S. 876, 876 (1985) (Marshall, J., dissenting
from denial of cert.); Spaziano, 468 U.S. at 477–81 (Stevens, J., dissenting); see also Gillers,
supra note 70, at 39–74.

85

 community agrees, because the voice of minority perspectives in the jury room is
assured equal weight in this most high stakes of decisions.293 But, in my view, the
Eighth Amendment bank-shot approach of requiring jury sentencing is just an
intricate way of confronting the implication of a direct Sixth Amendment
approach. That implication is that it was understood that no defendant would go to
the gallows unless a jury of his peers said he should. That is, that a defendant had
a right to have a jury say whether he should live or die. That this fundamental,
historical right is respected and restored is more important than the numerical
constitutional amendment under which that happens.
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

293

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, 585 A.2d 1278, 1301 (Del. 1991) (―[U]nanimity of the jurors is
required to reach a verdict since such was the common law rule.‖).

86

 believed that was justified.294

As with any other case, traditional motions

addressed to the jury‘s determinations could be addressed to the trial judge.
In sum, I find that no death sentence can be given unless that sentence is first
determined to be appropriate by a unanimous jury, properly charged with weighing
the aggravating and mitigating factors for itself.
C.
Before concluding, I must also address two specific issues posed by the first
four certified questions before us.295 The first issue regards unanimity. I have used
the term ―unanimously‖ throughout this opinion, presaging my answer to part of
the fourth certified question, which is that a defendant cannot be sentenced to death
without a unanimous jury decision to that effect. Not only is the tradition in
294

See Parker v. Dugger, 498 U.S. 308, 314 (1991).
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 jury 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 alterative 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 jury should also have to be told that a finding that the
aggravators outweigh the mitigators means the jury believes that death should be the defendant‘s
penalty.
295

87

 Delaware is that a jury act unanimously,296 that is the American tradition and the
understanding of how the jury right worked when it was embodied in the Sixth
Amendment to our Constitution.297 The unanimity requirement is vital to making
sure that jurors deliberate and take each other‘s vote seriously, and that all jurors
have equal voice in making this most critical of decisions.298
Indeed, the only anomaly to the tradition of the unanimous jury verdict in
Delaware is the recent one introduced into our own death penalty statute, an
innovation expressly intended to bypass the safeguard that a unanimous jury
requirement provides against the imposition of the ultimate punishment of death.299

296

See Capano v. State, 889 A.2d 968, 978 (Del. 2006); Claudio v. State, 585 A.2d 1278, 1301
(Del. 1991).
297
See supra notes 27, 42 and accompanying text.
298
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, 1 S.C.L. (1 Bay) at 389 (―[W]hen the
rights of the citizens are to be determined on by 12 men, changed at every Court, and
indiscriminately drawn from every class of their fellow citizens, there will be a better chance
generally, that the poor will receive an equal measure of justice with the rich, and that the
decision of facts will be according to the truth of them.‖).
299
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 jury 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, 333 U.S. at
761–65 (Frankfurter, J., concurring). See generally JEFFREY ABRAMSON, WE, THE JURY (2004).
For the obvious reason that eliminating the unanimity requirement reduces the importance of
individual jurors and the incentive for the jury to deliberate in an inclusive manner because the
agreement of every juror is no longer necessary to reach an outcome, it is unsurprising that
scholars have developed empirical evidence that they believe demonstrates that non-unanimous
jury statutes diminish the voice of minority jurors and produce results that seem to reflect greater
racial bias. See, e.g., Kim Taylor-Thompson, Empty Votes in Jury Deliberations, 113 HARV. L.
REV. 1261 (2000); Robert J. Smith, The Geography of the Death Penalty and Its Ramifications,
92 B.U. L. REV. 227 (2012). Among those studies is one that noted that ―Delaware has the

88

 If Hurst means what it says, then the finding required to be made for the
imposition of a death sentence must not only be made by a jury, it must be made
by a unanimous jury.300
The other issue is whether the jury must find any fact that constitutes an
aggravating circumstance in the ultimate sentencing phase beyond a reasonable
doubt, and whether any determination it makes that a defendant should suffer death
because the factors aggravating for that outcome outweigh any mitigating factors,
including the jury‘s own sense of mercy, must be found beyond a reasonable
doubt. As is well-explained in Justice Holland‘s excellent concurring opinion,
which I happily join, the answer to those questions is ―yes.‖ As Justice Holland
shows, § 4209 requires the state to identify any non-statutory aggravating factors
that it is relying upon in the sentencing phase in aid of its pursuit of a death
sentence. And as discussed, it is clear that statute requires the jury to consider
whether the aggravating factors relevant to sentencing, be they a statutory death
highest death-sentencing rate in the country in black defendant/white victim cases.‖ Hans et al.,
supra note 36, at 72.
300
I acknowledge the odd cases of Apodaca v. Oregon, 406 U.S. 404 (1972), and Johnson v.
Louisiana, 406 U.S. 356 (1972), in which the U.S. Supreme Court held that the Sixth
Amendment applies differently to the federal government than to the states. That rationale, I
confess, is not convincing to me, and I do not believe that the Supreme Court would allow a state
to depart from unanimity in the death penalty context. See McDonald v. City of Chicago, 561
U.S. 742, 765 (2010) (plurality) (―[I]ncorporated Bill of Rights protections ‗are all to be enforced
against the States under the Fourteenth Amendment according to the same standards that protect
those personal rights against federal enforcement.‘‖ (quoting Malloy v. Hogan, 378 U.S. 1, 10
(1964)); see also id. at 823 (Thomas J., joining plurality opinion and concurring) (―Section 1 [of
the Fourteenth Amendment] protects the rights of citizens ‗of the United States‘ specifically.
The evidence overwhelmingly demonstrates that the privileges and immunities of such citizens
included individual rights enumerated in the Constitution . . . .‖).

89

 eligibility factor or any pure sentencing aggravator, outweigh the mitigating
factors.
As I have discussed, the jury‘s role in the administration of the death penalty
was considered essential from the inception of our Republic. Part of the protective
armor the right gave to a defendant against unwarranted imposition of the death
penalty was not just that a jury be unanimously convinced that the death penalty
was appropriate, but that the jury had to have an extremely high level of
confidence that the ultimate punishment should be imposed.

The beyond a

reasonable doubt standard employed throughout our history in criminal
proceedings reflects the importance our society places on ensuring that criminal
punishment is not imposed lightly.301 When juries found defendants not guilty at
all when any kind of murder or serious felony resulted in a mandatory death
sentence, or guilty of a lesser degree of murder because first degree murder carried
mandatory death sentence when degrees of murder came in to temper that feature
of the law, the beyond a reasonable doubt standard was, along with the unanimity
requirement, a critical feature in ensuring that no one was executed unless the jury
was highly confident that that was the equitable result. To wit, because for much
of our history death was the mandatory result of conviction, the beyond a

301

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).

90

 reasonable doubt standard acted as a safeguard in punishment too, not just
conviction.302
There is no circumstance in which it is more critical that a jury act with the
historically required confidence than when it is determining whether a defendant
should live or die. If, as a majority of us have concluded, the Sixth Amendment
requires a jury to make all the necessary factual determinations relevant to a capital
defendant‘s fate, there is no reason to depart from the long-standing beyond a
reasonable doubt standard when the jury is making the crucial fact-laden judgment
of whether the defendant should be executed.303 Put simply, the Sixth Amendment
right to a jury includes a right not to be executed unless a jury concludes
unanimously that it has no reasonable doubt that is the appropriate sentence.304

302

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 20–23
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).
303
See United States v. Gabrion, 648 F.3d 307, 325–26 (6th Cir. 2011), rev’d en banc, 719 F.3d
511 (6th Cir. 2013); Carter, supra note 301, at 215–21.
304
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, 604 A.2d at 850–52. I also
acknowledge that the U.S. Supreme Court has recently suggested that freighting a sentencing
inquiry with a specific standard of review is inconsistent with the discretionary nature of
sentencing. See Carr, 136 U.S. at 642. But, the reality is that American law has long required
that certain decisions be made with a high level of confidence. In family law, for example, our
state requires a determination that parental rights should be terminated to be made under a clear
and convincing standard. See Barr v. Div. Fam. Servs., 974 A.2d 88, 94 (Del. 2009). And in the
death penalty context itself, several states in fact sensibly direct that any death sentence be
imposed only when the jury is convinced beyond a reasonable doubt that execution is the just

91

 sentence. See, e.g., ARK. CODE ANN. § 5-4-603 (West 2016); UTAH CODE ANN. § 76-3-207
(West 2016).

92

 HOLLAND, Justice, concurring in the Majority per curiam, with whom Chief
Justice STRINE and Justice SEITZ join:
The State has charged the Defendant, Benjamin Rauf (―Rauf‖) by indictment
with one count of First Degree Intentional Murder, one count of First Degree
Felony Murder, Possession of a Firearm During those Felonies and First Degree
Robbery. The State has expressed its intention to seek the penalty of death in the
event Rauf is convicted on either of the First Degree Murder counts. On January
12, 2016, the United States Supreme Court held in Hurst v. Florida,1 that Florida‘s
capital sentencing scheme was unconstitutional because ―[t]he Sixth Amendment
requires a jury, not a judge, to find each fact necessary to impose a sentence of
death.‖2 On January 25, 2016, the Superior Court certified five questions of law to
this Court for disposition in accordance with Rule 41 of the Supreme Court rules.
On January 28, 2016, this Court accepted revised versions of the questions
certified by the Superior Court and designated Rauf as the appellant and the State
as the appellee.3 What follows in this opinion are the reasons for my answers to
each question.
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
1

136 S. Ct. 616 (2016).
Id. at 619.
3
Rauf v. State, No. 39, 2016 (Del. Jan. 28, 2016) (ORDER).
2

1

 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 necessary to impose a sentence of death.‖4 In Hurst, the Supreme Court
applied its prior holdings in Apprendi v. New Jersey,5 and Ring v. Arizona.6 In
Apprendi, the Supreme Court held ―that any fact that ‗expose[s] the defendant to a
greater punishment than that authorized by the jury‘s guilty verdict‘ is an ‗element‘
that must be submitted to a jury.‖7
In Hurst, the Supreme Court stated: ―In Ring, we concluded that Arizona‘s
capital sentencing scheme violated Apprendi‘s rule because the State allowed a
judge to find the facts necessary to sentence a defendant the death.‖8 The relevant
inquiry in Hurst, as in Ring, was what maximum sentence the defendant could
receive in the absence of judicial fact-finding. The United States Supreme Court
answered that inquiry, as follows:
As with Timothy Ring, the maximum punishment
Timothy Hurst could have received without any judgemade findings was life in prison without parole. As with
4

Hurst, 136 S. Ct. at 619 (emphasis added).
530 U.S. 466 (2000).
6
536 U.S. 584 (2002).
7
Hurst, 136 S. Ct. at 621 (quoting Apprendi, 530 U.S. at 494).
8
Id.
5

2

 Ring, a judge increased Hurst‘s authorized punishment
based on her own factfinding. In light of Ring, we hold
that Hurst‘s sentence violates the Sixth Amendment.9
The Florida sentencing statute at issue in Hurst did ―not make a defendant eligible
for death until ‗findings by the court that such person shall be punished by
death.‘‖10 The holding in Hurst means that when a state statute requires a trial
judge, instead of a jury, to make factual findings that are necessary before a death
sentence can be imposed, the Sixth Amendment is violated.
In Kansas v. Carr,11 the United States Supreme Court held that the finding
that aggravating circumstances exist is without question a ―purely factual
determination.‖12 Thus, finding the existence of aggravating circumstances is the
functional equivalent of a criminal element in support of the ultimate penalty. In
Hurst, the United States Supreme Court overruled Spaziano v. Florida,13 and
Hildwin v. Florida,14 and held sentencing schemes that ―allow a sentencing judge
to find an aggravating circumstance, independent of a jury‘s factfinding, that is
necessary for imposition of the death penalty,‖ is impermissible under the Sixth
Amendment.15

9

Id. at 622.
Id. (quoting Fla. Stat. § 775.082(1)).
11
136 S. Ct. 633 (2016).
12
Id. at 642.
13
468 U.S. 447 (1984), overruled by Hurst v. Florida, 136 S. Ct. 616 (2016).
14
490 U.S. 638 (1989), overruled by Hurst v. Florida, 136 S. Ct. 616 (2016).
15
Hurst, 136 S. Ct. at 624.
10

3

 The Delaware death penalty statutes requires the State to give ―[n]otice in
writing of any aggravating circumstances [statutory and non-statutory] . . . prior to
the punishment hearing, and after the verdict on guilt.‖16 The Delaware statute
requires the judge to instruct the jury that ―in order to find the existence of a
statutory aggravating circumstances‖ they must do so beyond a reasonable doubt
and must be unanimous.17 The Delaware statute also requires that ―[a]s to any
statutory aggravating circumstances . . . which were alleged but for which the jury
is not unanimous, the jury shall report the number of affirmative and negative
votes on each such [statutory aggravating] circumstance.‖18
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

16

11 Del. C. § 4209(c).
11 Del. C. § 4209(c)(3)(b.1) (emphasis added).
18
Id. (emphasis added).
17

4

 additional judge-made factual findings is life in prison.19

Under the current

Delaware capital sentencing scheme, the judge alone, without knowledge of which,
if any, non-statutory aggravating circumstances the jury found unanimously and
beyond a reasonable doubt or otherwise, independently finds the existence of nonstatutory aggravating circumstances.20 As with the capital sentencing schemes at
issue in Ring and Hurst, a Delaware judge alone can increase a defendant‘s jury
authorized punishment of life to a death sentence, based on her own additional
factfinding of non-statutory aggravating circumstances.
application of Ring, this violates the Sixth Amendment.

In light of Hurst‘s
Accordingly, that

provision in the Delaware death penalty statute is unconstitutional.
Question Two
If the finding of the existence of ―any aggravating circumstance,‖ statutory
or non-statutory, that has been alleged by the State for weighing in the selection
phase of a capital sentencing proceeding 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
19
20

See id.; Hurst, 136 S. Ct. at 622.
11 Del. C. § 4209(d)(1).

5

 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 . . . .‘‖21 Although Justice Powell wrote, in an
opinion concurring in judgment with the United States Supreme Court‘s plurality
opinion in Apodaca v. Oregon,22 that non-unanimous jury verdicts were
permissible,23 his reasoning has since been called into question.24 Moreover, when
Justice Scalia concurred in Apprendi, he wrote that charges against the accused,
and the maximum exposure the accused faces, must be determined ―beyond a
reasonable doubt by the unanimous vote of 12 of his fellow citizens.‖25
Nevertheless, there is no doubt that unanimous jury verdicts are required by the
Delaware Constitution even though that question is not before us.26 Second, in
Hurst, the Supreme Court stated: ―The Sixth Amendment provides: ‗In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury . . . .‘ This right, in conjunction with the Due Process Clause,
21

Apprendi, 530 U.S. at 477 (internal citations omitted).
406 U.S. 404 (1972).
23
Johnson v. Louisiana, 406 U.S. 356, 369–80 (1972) (Powell, J., concurring in the judgment in
Apacada).
24
See McDonald v. City of Chicago, 561 U.S. 742, 765–66, 766 n.14 (2010).
25
Apprendi, 530 U.S. at 498 (Scalia, J., concurring) (emphasis in original).
26
Claudio v. State, 585 A.2d 1278, 1290–1301 (Del. 1991) (discussing Delaware‘s history of
jury trials and the requirement of a unanimous jury verdict pursuant to the right to a trial by
jury); see also Capano v. State, 889 A.2d 968, 973 (Del. 2006) (vacating the defendant‘s death
sentence because the defendant‘s ―eligibility for the death penalty was decided by the sentencing
judge without a unanimous jury finding,‖ and ―[i]n Delaware, the elements of any criminal
offense, including the greater offense of capital murder, must be found by a unanimous jury.‖).
22

6

 requires that each element of a crime be proved to a jury beyond a reasonable
doubt.‖27 As succinctly summarized by Justice Scalia, when he concurred in Ring:
―[T]he fundamental meaning of the jury-trial guarantee of the Sixth Amendment is
that all facts essential to imposition of the level of punishment that the defendant
receives—whether the statute calls them elements of the offense, sentencing
factors, or Mary Jane—must be found by the jury beyond a reasonable doubt.‖28
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.29 ―[A] judge cannot sentence a
defendant to death without finding that the aggravating factors outweigh the
mitigating factors . . . .‖30

The relevant ―maximum‖ sentence, for Sixth

Amendment purposes, that can be imposed under Delaware law, in the absence of
27

Hurst, 136 S. Ct. at 621 (quoting Alleyne v. United States, 133 S. Ct. 2151 (2013)).
Ring, 536 U.S. at 610 (Scalia, J., concurring).
29
Brice v. State, 815 A.2d 314, 322 (Del. 2003).
30
Id.
28

7

 any judge-made findings on the relative weights of the aggravating and mitigating
factors, is life imprisonment. In Hurst, the Supreme Court noted ―the maximum
punishment Timothy Hurst could have received without any judge-made findings
was life in prison without parole.‖31
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
circumstances exist and that there are insufficient mitigating circumstances to
outweigh the aggravating circumstances‖ before a death sentence may be
imposed.32 When the Delaware death penalty statute was amended in 2003, the
synopsis to that legislation stated, in relevant part:
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
31

Hurst, 136 S. Ct. at 622.
Id. (internal quotations marks and alterations omitted). Accord 11 Del. C. § 4209(d)(1).
33
Del. H.B. 287 syn., 142nd Gen. Assem., 74 Del. Laws ch. 174 (2003).
32

8

 circumstances outweigh the mitigating circumstances, does not qualify as a
―finding‖ by a jury for Sixth Amendment purposes.34 After the decision in Hurst,
when a statute provides for the judge alone to make the factual findings necessary
for the imposition of a death sentence, it violates Sixth Amendment.
In 2003, in Brice v State,35 this Court held that the Delaware statute did not
violate the Sixth Amendment under Ring.36 In Brice, this Court determined that
the jury‘s verdict finding proof of a statutory aggravating circumstance satisfied
the Sixth Amendment because it was this death eligibility finding alone that served
to increase the maximum punishment to death.37 This Court‘s holding in Brice was
based upon the United States Supreme Court‘s decision in Hildwin.38 However, in
Hurst, the decisions in Hildwin and Spaziano were both ―overruled 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.‖ 39 Thus,
just as ―[t]ime and subsequent cases have washed away the logic of Spaziano and
Hildwin,‖ the reasoning of Brice is no longer viable following the decision Hurst.
The only constitutional infirmity at issue in Ring and Hurst was the judicial
determination of aggravating circumstances. On the other hand, Woodward v.
34

See Hurst, 136 S. Ct. at 622; 11 Del. C. § 4209.
815 A.2d 314 (Del. 2003).
36
Id. at 322.
37
Id.
38
Id. at 319.
39
Hurst, 136 S. Ct. at 624.
35

9

 Alabama,40 involved a challenge to Alabama‘s capital punishment scheme, which
allows judges to independently weigh aggravating and mitigating circumstances
and impose death sentences, even where a jury has recommended a sentence of life
in prison.41

Justice Sotomayor, dissenting from the denial of certiorari in

Woodward made this observation:
A defendant is eligible for the death penalty in Alabama
only upon a specific factual finding that any aggravating
factors outweigh the mitigating factors he has presented.
The statutorily required finding that the aggravating
factors of a defendant‘s crime outweigh the mitigating
factors is therefore necessary to impose the death penalty.
It is clear, then, that this factual finding exposes the
defendant to a greater punishment than he would
otherwise receive: death, as opposed to life without
parole. Under Apprendi and Ring, a finding that has such
an effect must be made by a jury.42
Justice Sotomayor was the author of Hurst, which held: ―The Sixth
Amendment requires a jury, not a judge, to find each fact necessary to impose a
sentence of death.‖43 Although the United States Supreme Court‘s holding in
Hurst only specifically invalidated a judicial determination of aggravating
circumstances, it also stated unequivocally that the jury trial right recognized in
Ring now applies to all factual findings necessary to impose a death sentence
under a state statute. The logical extension of that broader statement in Hurst is
40

134 S. Ct. 405 (2013).
Id. at 406.
42
Id. at 410–11 (Sotomayor, J., dissenting).
43
Hurst, 136 S. Ct. at 619 (emphasis added).
41

10

 that a jury must determine the relative weight of aggravating and mitigating
circumstances.44

Therefore, according to the broader statement in Hurst, the

weighing process provision in the Delaware death penalty statute is
unconstitutional because it violates the Sixth Amendment.
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,

44

must

be

addressed

by

Id. at 622.

11

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
this Court certified five questions from the Superior Court concerning the
constitutionality of 11 Del. C. § 4209. My answers are as follows:
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? 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 (as a 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
1

136 S. Ct. 616 (2016).

1

 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 4 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.2 Ring ―required a jury to find every fact necessary to render
[a defendant] eligible for the death penalty.‖3

2
3

536 U.S. 584 (2002).
Hurst, 136 S. Ct. at 622.

2

Because ―Florida‘s sentencing

 scheme . . . required the judge alone to find the existence of an aggravating
circumstance,‖ the Supreme Court concluded that it was unconstitutional.4 The
Hurst Court held that ―[t]he Sixth Amendment requires a jury, not a judge, to find
each fact necessary to impose a sentence of death.‖5 Finding that ―[t]he analysis
the Ring Court applied to Arizona‘s sentencing scheme applie[d] equally to
Florida‘s,‖6 Hurst overruled Spaziano v. Florida7 and Hildwin v. Florida,8 but only
―in relevant part‖9 and ―to the extent they allow a sentencing judge to find an

4

Id. at 624.
Id. at 619.
6
Id. at 621-22. The Hurst Court summarized Ring as follows:
5

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
independently 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).
7
468 U.S. 447 (1984), overruled in part by Hurst v. Florida, 136 S. Ct. 616 (2016).
8
490 U.S. 638 (1989) (per curiam), overruled in part by Hurst v. Florida, 136 S. Ct. 616 (2016).
9
Hurst, 136 S. Ct. at 623 (emphasis added).

3

 aggravating circumstance, independent of a jury‘s factfinding, that is necessary for
imposition of the death penalty.‖10
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.11
There is no question that the Delaware statute permits the trial court to find
aggravating factors that were never found by the jury. 12 In addition to the plain
language of the statute itself, this Court‘s decision in Ploof v. State,13 which cited
Ortiz v. State14 with approval, makes this clear.15

10

Because an aggravating

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, 136 S. Ct. 633, 642
(2016).
12
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).
13
75 A.3d 840 (Del. 2013).
14
869 A.2d 285 (Del. 2005), cert. denied, 546 U.S. 832 (2005).
11

4

 circumstance found by a judge, but not by a jury, may be necessary for imposition
of the death penalty, it operates as ―the functional equivalent of an element of a
greater offense‖16 and the Sixth Amendment requires that it be found by a jury. 17
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
15

See Ploof, 75 A.3d at 846 n.12 (citing Ortiz, 869 A.2d 285) (―[A] jury‘s lack of unanimity
regarding [a] statutory aggravating factor . . . does not preclude the sentencing judge from
considering such evidence as a non[-]statutory aggravating factor as part of his weighing
calculus.‖). As recounted by the Ploof Court, Ortiz ―affirmed the imposition of the death penalty
after a jury, having considered two statutory aggravating factors, unanimously found that the
defendant was previously convicted of a violent felony, but found only by a vote of 9-3 the
circumstance of premeditation and substantial planning. Although it was not entitled to qualify
as a statutory aggravating factor, the trial court found that sufficient evidence existed of
premeditation and substantial planning to warrant its use as a non[-]statutory aggravating factor.‖
Id. (internal citations omitted). The Superior Court also found seven additional non-statutory
aggravating factors in Ortiz. Ortiz, 869 A.2d at 308-09.
16
Apprendi v. New Jersey, 530 U.S. 466, 494 n.19 (2000); see also Ring, 536 U.S. at 609 (citing
Apprendi, 530 U.S. at 494 n.19) (―Because Arizona‘s enumerated aggravating factors operate as
‗the functional equivalent of an element of a greater offense,‘ the Sixth Amendment requires that
they be found by a jury.‖ (internal citation omitted)).
17
Hurst, 136 S. Ct. at 621; see also Ring, 536 U.S. at 589 (―Capital defendants, no less than
noncapital defendants, we conclude, are entitled to a jury determination of any fact on which the
legislature conditions an increase in their maximum punishment.‖); id. at 610 (Scalia, J.,
concurring) (―[T]he fundamental meaning of the jury-trial guarantee of the Sixth Amendment is
that all facts essential to imposition of the level of punishment that the defendant receives—
whether the statute calls them elements of the offense, sentencing factors, or Mary Jane—must
be found by the jury beyond a reasonable doubt.‖); Apprendi, 530 U.S. at 494; id. at 499 (Scalia,
J., concurring) (―And the guarantee that ‗[i]n all criminal prosecutions, the accused shall enjoy
the right to . . . trial, by an impartial jury,‘ has no intelligible content unless it means that all the
facts which must exist in order to subject the defendant to a legally prescribed punishment must
be found by the jury.‖ (emphasis in original) (alterations in original)).

5

 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, overriding 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.‖18
Absent factfinding by the court, the maximum punishment the defendant could
receive under our statute is life, since the judge was not persuaded that the sole
aggravating circumstance found by the jury outweighed the mitigating
circumstances.19

The plain language of Hurst provides that ―[t]he Sixth

Amendment requires a jury, not a judge, to find each fact necessary to impose a
sentence of death.‖20
Hurst is the next step in a progression of cases that have enhanced the jury‘s
role in certain, but not all, aspects of capital cases. In 2000, the United States
Supreme Court decided Apprendi v. New Jersey.21 The defendant in Apprendi pled
guilty to multiple felonies. Pursuant to a New Jersey statute that increased the
18

Hurst, 136 S. Ct. at 624.
See 11 Del. C. § 4209(d)(1)-(2).
20
Hurst, 136 S. Ct. at 619; see also id. at 624 (―The Sixth Amendment protects a defendant‘s
right to an impartial jury. This right required Florida to base Timothy Hurst‘s death sentence on
a jury‘s verdict, not a judge‘s factfinding. Florida‘s sentencing scheme, which required the judge
alone to find the existence of an aggravating circumstance, is therefore unconstitutional.‖).
21
530 U.S. 466 (2000).
19

6

 maximum sentence from 10 years to 20 years if the court found that the defendant
committed his crime with racial bias, the defendant was sentenced to a 12-year
term of imprisonment after the judge found that the ―hate crime‖ sentencing
enhancement applied. On appeal, the United States Supreme Court found the
defendant‘s sentence to have been unconstitutionally enhanced by judicial
factfinding.

The Apprendi Court held that ―[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.‖22
Four years later, in a non-capital case, Blakely v. Washington,23 Justice
Scalia, writing for the Majority, stated that the United States Supreme Court‘s
―precedents make clear . . . that the ‗statutory maximum‘ for Apprendi purposes is
the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.‖24 Blakely further stated
that ―[w]hen a judge inflicts punishment that the jury‘s verdict alone does not
allow, the jury has not found all the facts ‗which the law makes essential to the
punishment,‘ and the judge exceeds his proper authority.‖25
22

Id. at 490.
542 U.S. 296 (2004).
24
Id. at 303 (citing Ring, 536 U.S. at 602 (―‗[T]he maximum he would receive if punished
according to the facts reflected in the jury verdict alone.‘‖)) (emphasis in original) (citations
omitted).
25
Id. at 304 (internal citation omitted).
23

7

 In Blakely, the defendant‘s plea supported a maximum sentence of 53
months. But the judge imposed a 90-month sentence after finding the defendant
had acted with deliberate cruelty. The State of Washington contended that there
was no Apprendi violation because the maximum sentence was not 53 months, but
rather the 10-year maximum corresponding to a certain classification of felonies.
Rejecting that contention, the Blakely Court stated that ―[t]he ‗maximum sentence‘
is no more 10 years here than it was 20 years in Apprendi (because that is what the
judge could have imposed upon finding a hate crime) or death in Ring (because
that is what the judge could have imposed upon finding an aggravator).‖26
In 2013, in Alleyne v. United States,27 a non-capital case, the United States
Supreme Court overruled its decision in Harris v. United States,28 where the Court
declined to extend Apprendi to facts that increased the mandatory minimum
sentence but not the maximum sentence. The Harris Court held that judicial
factfinding that increased the mandatory minimum did not implicate the Sixth
Amendment. ―Because the jury‘s verdict ‗authorized the judge to impose the
minimum with or without the finding,‘ the Court was of the view that the factual
26

Id.
133 S. Ct. 2151 (2013).
28
536 U.S. 545 (2002). In Harris, the defendant was charged with carrying a firearm in the
course of committing a drug trafficking crime. Under 18 U.S.C. § 924, the mandatory minimum
sentence based on the jury‘s verdict alone was five years. The United States District Court for
the Middle District of North Carolina nonetheless imposed a seven-year mandatory minimum
sentence on the defendant, based on its finding that the defendant brandished the firearm. On
appeal to the United States Supreme Court, the defendant unsuccessfully challenged the imposed
mandatory minimum sentence as unconstitutional under Apprendi.
27

8

 basis for increasing the minimum sentence was not ‗essential‘ to the defendant‘s
punishment. Instead, it merely limited the judge‘s ‗choices within the authorized
range.‘‖29 Alleyne overruled Harris.
In Alleyne, the defendant was charged with using or carrying a firearm in
relation to a crime of violence, which carried a five-year mandatory minimum
sentence that increased to a seven-year mandatory minimum sentence if the firearm
was ―brandished.‖30 The jury convicted the defendant. The sentencing range
supported by the jury‘s verdict was five years‘ imprisonment to life, but the judge,
rather than the jury, found that the defendant brandished the firearm, increasing the
mandatory minimum sentence from five years to seven years. The judge‘s finding
that the defendant brandished the firearm, the Alleyne Court held, violated the
Sixth Amendment right to a jury trial.31

Alleyne made clear that Apprendi‘s

definition of an element of an offense necessarily included not only facts that
increased the punishment ceiling, but also those that increased the floor. As Justice
29

Alleyne, 133 S. Ct. at 2157 (quoting Harris, 536 U.S. at 557, 560-61, 567) (internal citations
omitted) (internal quotation marks omitted).
30
Id. at 2155 (quoting 18 U.S.C. § 924(c)(1)(A)) (internal quotation marks omitted).
31
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, 560 U.S. 817, 828-29 (2010)
(―[W]ithin established limits[,] . . . the exercise of [sentencing] discretion does not contravene
the Sixth Amendment even if it is informed by judge-found facts.‖ (alterations in Alleyne));
Apprendi, 530 U.S. at 481 (―[N]othing in this history suggests that it is impermissible for judges
to exercise discretion—taking into consideration various factors relating both to offense and
offender—in imposing a judgment within the range prescribed by statute.‖ (alteration in Alleyne)
(emphasis in original)) (citations omitted).

9

 Thomas wrote in Alleyne, ―[d]efining facts that increase a mandatory statutory
minimum to be part of the substantive offense enables the defendant to predict the
legally applicable penalty from the face of the indictment,‖ and ―[i]t also preserves
the historic role of the jury as an intermediary between the State and criminal
defendants.‖32 The United States Supreme Court further concluded in Alleyne that
the essential Sixth Amendment inquiry is whether a fact is an element
of the crime. When a finding of fact alters the legally prescribed
punishment so as to aggravate it, the fact necessarily forms a
constituent part of a new offense and must be submitted to 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 sentence, such a finding would violate the Sixth
Amendment, even if the defendant ultimately received a sentence falling within the
original sentencing range (i.e., the range applicable without that aggravating
fact).‖34 Apprendi, Ring, Blakely, Alleyne, and Hurst—decided in the years 2000,

32

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.‖).
34
Id. at 2162 (citations omitted); see also Blakely, 542 U.S. at 303-04 (―[T]he relevant ‗statutory
maximum,‘ is not the maximum sentence a judge may impose after finding additional facts, but
the maximum he may impose without any additional findings.‖ (emphasis in original)).
33

10

 2002, 2004, 2013, and 2016, respectively—can be read as a linear development of
the United States Supreme Court‘s Sixth Amendment jurisprudence.35
This Court‘s principal case upholding the constitutionality of the post-Ring
variant of 11 Del. C. § 4209, Brice v. State,36 is no longer viable as a result of
Hurst.

Brice‘s statement that ―a finding of non-statutory factors does not

‗increase‘ the maximum penalty that a defendant can receive‖37 conflicts with
Hurst‘s plain language, which prohibits judicial findings of aggravating
circumstances that are ―necessary for imposition of the death penalty.‖ 38 As my
hypothetical illustrates, the judge was statutorily required to sentence the defendant
to life because she would not have imposed death absent her independent findings
of additional aggravating circumstances. Thus, the additional judicial findings
were necessary for imposition of the death penalty.39 If it remained unclear how
the principles espoused in Alleyne and Blakely apply in the capital sentencing

35

See Alleyne, 133 S. Ct. at 2165 (Sotomayor, J., concurring) (observing that Apprendi‘s ―rule
has become even more firmly rooted in the Court‘s Sixth Amendment jurisprudence in the
decade since Harris‖).
36
815 A.2d 314 (Del. 2003).
37
Id. at 322.
38
Hurst, 136 S. Ct. at 624; see also id. at 619 (―The Sixth Amendment requires a jury, not a
judge, to find each fact necessary to impose a sentence of death.‖ (emphasis added)); id. at 622
(―Ring required a jury to find every fact necessary to render [a defendant] eligible for the death
penalty.‖ (emphasis added)).
39
See supra note 12.

11

 context, the Supreme Court‘s language in Hurst makes clear that the foundational
―underpinnings‖ of Brice have been ―eroded.‖40
II.

CERTIFIED QUESTION 2 SHOULD BE ANSWERED IN THE
NEGATIVE AS TO UNANIMITY AND IN THE AFFIRMATIVE
AS TO THE BURDEN OF PROOF
Question 2 should be answered in the negative with respect to unanimity, as

a matter of federal constitutional law—not as a matter of the Delaware
Constitution.41 However, Question 2 should be answered in the affirmative as to
the burden of proof.
Under Delaware‘s present capital sentencing framework, the jury‘s primary
function in the sentencing phase is to make a factual finding concerning the
existence of a statutory aggravating circumstance.

The jury also makes a

sentencing recommendation regarding whether the aggravating circumstances
found to exist outweigh the mitigating circumstances found to exist.

40

Hurst, 136 S. Ct. at 623 (observing that ―in the Apprendi context, we have found that ‗stare
decisis does not compel adherence to a decision whose ‗underpinnings‘ have been ‗eroded‘ by
subsequent developments of constitutional law‘‖ (internal citations omitted)) (internal quotation
marks omitted); compare id. at 624 (holding that a judge cannot find an aggravating
circumstance, independent of a jury, that is necessary to impose the death penalty), with Brice,
815 A.2d at 322 (―Non-statutory aggravators, if considered at all, do not enter the mix until after
the jury performs its essential function during the narrowing phase. Accordingly, a finding of
non-statutory factors does not ‗increase‘ the maximum penalty that a defendant can receive.
Rather, non-statutory aggravators are part of the total mix, including mitigating factors, when the
sentencing judge performs his function during the weighing phase.‖).
41
See Claudio v. State, 585 A.2d 1278, 1301 (Del. 1991) (citing Fountain v. State, 275 A.2d 251
(Del. 1971)) (―This Court has expressly held that under the Delaware Constitution, unanimity of
the jurors is required to reach a verdict since such was the common law rule.‖ (footnote
omitted)).

12

 In Apodaca v. Oregon,42 the United States Supreme Court held that although
the Sixth Amendment right to trial by jury requires a unanimous jury verdict in
federal criminal trials, it does not require a unanimous jury verdict in State
criminal trials.43 There, the Supreme Court considered whether convictions of
crimes by less-than-unanimous juries violated the right to trial by jury in criminal
cases under the Sixth Amendment.

A plurality of the Court ―perceive[d] no

difference between juries required to act unanimously and those permitted to
convict or acquit by votes of 10 to two or 11 to one.‖44 The plurality concluded
that ―in either case, the interest of the defendant in having the judgment of his
peers interposed between himself and the officers of the State who prosecute and
judge him is equally well served.‖45
In McDonald v. City of Chicago,46 the United States Supreme Court
observed that the outcome in Apodaca ―was the result of an unusual division
among the Justices,‖ where ―four Justices took the view that the Sixth Amendment
does not require unanimous jury verdicts in either federal or state criminal trials,
42

406 U.S. 404 (1972).
See Johnson v. Louisiana, 406 U.S. 366, 369-75 (1972) (Powell, J., concurring in the Apodaca
judgment and concurring in Johnson); see also McDonald v. City of Chicago, 561 U.S. 742, 766
n.14 (2010) (citing Apodaca, 406 U.S. 404; Johnson, 406 U.S. 356 (holding that the Due Process
Clause does not require unanimous jury verdicts in state criminal trials)); Jordan v.
Massachusetts, 225 U.S. 167, 176 (1912) (―In criminal cases due process of law is not denied by
a state law . . . which dispenses with the necessity of a jury of twelve, or unanimity in the
verdict.‖).
44
Apodaca, 406 U.S. at 411 (joint opinion of White, J., Burger, C.J., Blackmun and Rehnquist,
JJ.).
45
Id.
46
561 U.S. 742 (2010).
43

13

 and four other Justices took the view that the Sixth Amendment requires
unanimous jury verdicts in federal and state criminal trials.‖47 The McDonald
Court nevertheless observed that ―Justice Powell‘s concurrence in the [Apodaca]
judgment broke the tie, and he concluded that the Sixth Amendment requires juror
unanimity in federal, but not state, cases.‖48
More recently, in Hurst, the petitioner challenged the viability of Apodaca,
but the Supreme Court declined to address whether the Sixth Amendment right to
trial by jury requires a unanimous jury verdict in State criminal trials.49 Thus,
Apodaca remains the federal constitutional law.

Apodaca‘s precariousness

notwithstanding, as a matter of the Delaware Constitution, the jury must
unanimously find beyond a reasonable doubt the existence of at least one statutory
aggravating factor as a predicate to the imposition of the death penalty. 50 But, as

47

Id. at 766 n.14 (internal citations omitted).
Id.; see also Richardson v. United States, 526 U.S. 813, 821 (1999) (―The cases are not federal
but state, where this Court has not held that the Constitution imposes a jury-unanimity
requirement.‖ (citation omitted)).
49
See Brief for Petitioner at 45-47, Hurst v. Florida, 136 S. Ct. 616 (2016) (No. 14-7505), 2015
WL 3523406.
50
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, 585 A.2d at 1298 (citation omitted). Delaware law has long recognized
the significance of juror unanimity in criminal proceedings. See Wilson v. Oldfield, 1 Del. Cas.
622, 624-27 (Del. Com. Pl. 1818). This Court, in Fountain v. State, 275 A.2d 251 (Del. 1971),
re-affirmed that it is ―fundamental under our law that the verdict of a jury must be unanimous.‖
Id. at 251. There, we recognized that the requirement of juror unanimity under Delaware law
follows from Article I, § 4 of the Delaware Constitution, which provides: ―Trial by jury shall be
as heretofore.‖ Del. Const. art. I, § 4. Fountain thus interpreted Article I, § 4 to ―guarantee[] the
right to trial by jury as it existed at common law.‖ Fountain, 275 A.2d at 251 (citing Nance v.
Rees, 161 A.2d 795 (Del. 1960)). Accordingly, ―[t]his Court and the other courts of Delaware
48

14

 currently interpreted, the Sixth Amendment does not require jury unanimity in
State criminal trials.
With respect to the burden of proof, the Sixth Amendment, as interpreted in
Apprendi, 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.‖51 In Hurst, the United States Supreme Court reiterated its holding in
Apprendi that any fact that ―‗expose[s] the defendant to a greater punishment than
that authorized by the jury‘s guilty verdict‘ is an ‗element‘ [of a crime] that must
be submitted to a jury.‖52

Because the determination of the existence of an

aggravating circumstance is ―purely factual,‖53 and such a finding exposes the
defendant to a greater punishment than ―the maximum he would receive if
punished according to the facts reflected in the jury verdict alone,‖ it must be
found by a jury beyond a reasonable doubt.54

have always construed that provision in the Delaware Constitution as ‗guaranteeing the right to
trial by jury as it existed at common law.‘‖ Claudio, 585 A.2d at 1297 (quoting Fountain, 275
A.2d at 251) (emphasis removed). ―Unanimity of the jurors is therefore required to reach a
verdict since such was the common law rule.‖ Fountain, 275 A.2d at 251 (citation omitted).
51
Ring, 536 U.S. at 602 (citing Apprendi, 530 U.S. at 482-83).
52
Hurst, 136 S. Ct. at 621 (quoting Apprendi, 530 U.S. at 494) (alterations in Hurst and added).
53
Carr, 136 S. Ct. at 642.
54
See Ring, 536 U.S. at 602 (quoting Apprendi, 530 U.S. at 483) (internal quotation marks
omitted).

15

 III.

CERTIFIED QUESTION 3, WHICH ASKS WHETHER THE
WEIGHING FUNCTION MUST BE PERFORMED BY A JURY,
SHOULD BE ANSWERED IN THE NEGATIVE

As certified to this Court, Question 3 should be answered in the negative. I
reach this conclusion for two reasons.

First, Hurst overruled Spaziano and

Hildwin only in part. Hurst leaves undisturbed the United States Supreme Court‘s
clear statement in Spaziano that ―the Sixth Amendment does not require jury
sentencing‖ in capital cases.55 Second, the most logical reading of Hurst is that it,
like Ring, requires a jury to find an aggravating circumstance necessary for
imposition of the death penalty, but it does not require the jury to perform the
weighing function.56
Further, Hurst—which does not speak to the weighing function directly—
should not be viewed as implicitly overruling the constitutionality of judicial
sentencing in capital cases in the face of such clear authority to the contrary, and
especially when the author of Hurst, Justice Sotomayor, has explicitly addressed
the weighing function in a separate opinion dissenting from the denial of certiorari
in Woodward v. Alabama.57 The Hurst decision does not refer to Woodward,

55

Spaziano, 468 U.S. at 464.
Compare Hurst, 136 S. Ct. at 624 (―Time and subsequent cases have washed away the logic of
Spaziano and Hildwin. The decisions are overruled 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.‖), with Ring, 536 U.S. at 609 (―[W]e overrule Walton to the
extent that it allows a sentencing judge, sitting without a jury, to find an aggravating
circumstance necessary for imposition of the death penalty.‖ (citation omitted)).
57
134 S. Ct. 405, 410-11 (2013) (Sotomayor, J., dissenting from denial of certiorari).
56

16

 where Justice Sotomayor, in her dissent, observed that the Alabama capital
sentencing scheme rendered a defendant death eligible upon a
factual finding that any aggravating factors outweigh the mitigating
factors he has presented. The statutorily required finding that the
aggravating factors of a defendant’s crime outweigh the mitigating
factors is therefore necessary to impose the death penalty. It is clear,
then, that this factual finding exposes the defendant to a greater
punishment than he would otherwise receive: death, as opposed to
life without parole. Under Apprendi and Ring, a finding that has such
an effect must be made by a jury.58
Hurst does not hold that a jury determination of the appropriate sentence to be
imposed is a necessary element of a constitutional capital sentencing framework.
The distinguished author of Hurst could have said so—as she did in Woodward—if
that is what the Supreme Court intended in Hurst.
Finally, given that our legislature has, in recent amendments to 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.

58

Id. (emphasis added) (internal citations omitted).

17

 A.

The United States Supreme Court Has Expressly Approved of
Judicial Sentencing, and Hurst Did Not Overrule Those Decisions

1.

Prior to Hurst, Judicial Sentencing Was Explicitly Sanctioned

The United States Supreme Court has, on multiple occasions, expressly
sanctioned judicial sentencing in capital cases. Prior to Hurst, the Supreme Court
―made abundantly clear that a defendant does not enjoy a constitutional right to a
jury determination as to the appropriate sentence to be imposed.‖ 59 The Spaziano
Court stated that ―[t]he Sixth Amendment never has been thought to guarantee a
right to a jury determination‖ of ―the appropriate punishment to be imposed on an
individual.‖60
The death penalty is not ―frustrated by, or inconsistent with, a scheme in
which the imposition of the penalty in individual cases is determined by a judge.‖ 61
Concurring in Ring, Justice Scalia observed that ―[t]hose States that leave the
ultimate life-or-death decision to the judge may . . . do so—by requiring a prior
jury finding of aggravating factor in the sentencing phase or, more simply, by
59

Libretti v. United States, 516 U.S. 29, 49 (1995) (citing Spaziano, 468 U.S. at 459 (no right to
a jury determination as to the imposition of the death penalty)) (citations omitted); see also
Morgan v. Illinois, 504 U.S. 719, 725-26 (1992) (―We have emphasized previously that there is
not ‗any one right way for a State to set up its capital sentencing scheme,‘ and that no State is
constitutionally required by the Sixth Amendment or otherwise to provide for jury determination
of whether the death penalty shall be imposed on a capital defendant.‖ (internal citations
omitted)); id. at 740 (Scalia, J., dissenting) (citing Clemons v. Mississippi, 494 U.S. 738, 745-46
(1990); Spaziano, 468 U.S. at 464 (citations omitted)) (―The Court today reaffirms our oftrepeated holding that the Sixth Amendment (which is binding on the States through the
Fourteenth Amendment) does not require a jury trial at the sentencing phase of a capital case.‖).
60
Spaziano, 468 U.S. at 459 (citations omitted).
61
Id. at 462-63 (footnote omitted).

18

 placing the aggravating-factor determination (where it logically belongs anyway)
in the guilt phase.‖62

Hurst and Ring do not require a jury to make the

determination that the aggravating circumstances outweigh the mitigating
circumstances.63
2.

Hurst Overrules Spaziano Only in “Relevant Part” and Does Not
Address Proffitt
Hurst overruled Spaziano and Hildwin ―in relevant part‖ and ―to the extent

they allow a sentencing judge to find an aggravating circumstance, independent of
a jury‘s factfinding, that is necessary for imposition of the death penalty.‖ 64 The
Hurst Court did not hold that the Sixth Amendment requires that a jury must make
the determination as to the appropriate sentence to be imposed in capital cases.

62

Ring, 536 U.S. at 612-13 (Scalia, J., concurring).
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, 136 U.S. at 624 (Breyer, J., concurring in the judgment)
(quoting Ring, 536 U.S. at 614 (Breyer, J., concurring in the judgment)) (―[T]he Eighth
Amendment requires that a jury, not a judge, make the decision to sentence a defendant to
death.‖ (internal quotation marks omitted)); Woodward, 134 S. Ct. at 407 (Sotomayor, J.,
dissenting from denial of certiorari) (―One such safeguard, as determined by the vast majority of
States, is that a jury, and not a judge, should impose any sentence of death.‖ (footnote omitted));
see also id. at 407 n.2 (―It is perhaps unsurprising that the national consensus has moved towards
a capital sentencing scheme in which the jury is responsible for imposing capital punishment.
Because capital punishment is an expression of society‘s moral outrage at particularly offensive
conduct, jurors, who express the conscience of the community on the ultimate question of life or
death, seem best-positioned to decide whether the need for retribution in a particular case
mandates imposition of the death penalty.‖ (internal citations omitted) (internal quotation marks
omitted)).
64
Hurst, 136 S. Ct. at 623-24.
63

19

 Nor did Ring address whether ―the Sixth Amendment require[s] the jury to make
the ultimate determination whether to impose the death penalty.‖65
In Proffitt v. Florida,66 a plurality of the United States Supreme Court did
address whether the Sixth Amendment requires jury sentencing in capital cases.
Proffitt states clearly that judicial sentencing is constitutionally permissible.67
Proffitt ―pointed out that jury sentencing in a capital case can perform an important
societal function,‖ but it also emphasized that the Supreme Court ―has never
suggested that jury sentencing is constitutionally required.‖68 Following Proffitt,
where the Court has considered sentencing authorities in capital cases, it has
embraced judicial sentencing.69 Hurst does not mention Proffitt.
Moreover, Justice Breyer‘s concurrence in Hurst—which has not yet
garnered majority support on the United States Supreme Court—would not have

65

Ring, 536 U.S. at 597 n.4 (citing Proffitt v. Florida, 428 U.S. 242, 252 (1976) (plurality
opinion) (―[I]t has never [been] suggested that jury sentencing is constitutionally required.‖
(alterations in Ring))).
66
428 U.S. 242 (1976) (plurality opinion).
67
See id. at 252 (joint opinion of Powell, Stewart, Stevens, JJ.) (―And it would appear that
judicial sentencing should lead, if anything, to even greater consistency in the imposition at the
trial court level of capital punishment, since a trial judge is more experienced in sentencing than
a jury, and therefore is better able to impose sentences similar to those imposed in analogous
cases.‖ (citations omitted)).
68
Id. (citing Witherspoon v. Illinois, 391 U.S. 510, 519 n.15 (1968)) (emphasis added).
69
See, e.g., Clemons, 494 U.S. at 745 (―Any argument that the Constitution requires that a jury
impose the sentence of death . . . has been soundly rejected by prior decisions of this Court.‖); id.
(―[T]he decision whether a particular punishment—even the death penalty—is appropriate in any
given case is not one that we have ever required to be made by a jury.‖ (citation omitted)
(internal quotation marks omitted)).

20

 been necessary if the Court‘s Opinion contemplated weighing by a jury as opposed
to a judge. He wrote:
For the reasons explained in my opinion concurring in the judgment in
Ring v. Arizona, I cannot join the Court‘s opinion. As in that case,
however, I concur in the judgment here based on my view that ―the
Eighth Amendment requires that a jury, not a judge, make the
decision to sentence a defendant to death.‖70
Justice Breyer concurred in the Hurst judgment precisely because the Majority did
not hold that jury sentencing was constitutionally required, either by the Sixth or
Eighth Amendment, in capital cases.
B.

Principles of Federalism and Separation of Powers Call for Judicial
Restraint and Favor a Narrower Holding That Judicial Sentencing
Remains Permissible

Within our constitutional system of checks and balances, a State statute can
be invalidated on the grounds that it violates the United States Constitution.71
However, I believe that a decision to render 11 Del. C. § 4209 unconstitutional
here should only occur if Hurst unambiguously calls for such a result.72 As to
70

Hurst, 136 S. Ct. at 624 (Breyer, J., concurring in the judgment) (quoting Ring, 536 U.S. at
614 (Breyer, J., concurring in the judgment)) (internal citations omitted).
71
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.
72
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, 134 S. Ct. 2077, 2089 (2014) (referring to the established principle that ―it is
incumbent upon the federal courts to be certain of Congress‘ intent before finding that federal
law overrides the usual constitutional balance of federal and state powers,‖ and observing that ―if

21

 judicial sentencing, Hurst, in my view, is at least ambiguous. This fact should be
counterbalanced against the undeniable reality that our State statute could not be
more clear that judicial sentencing was intended.
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
the Federal Government would radically readjust[] the balance of state and national authority,
those charged with the duty of legislating [must be] reasonably explicit‖ (internal citations
omitted) (internal quotation marks omitted) (alterations in original)). Writing for the Court in
Bond v. United States, Chief Justice Roberts commented that ―[b]ecause our constitutional
structure leaves local criminal activity primarily to the States, we have generally declined to read
federal law as intruding on that responsibility, unless Congress has clearly indicated that the law
should have such reach.‖ Id. at 2083; cf. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.
1, 17 (1981) (―By insisting that Congress speak with a clear voice, we enable the States to
exercise their choice knowingly, cognizant of the consequences of their participation [in a grant
of federal funds].‖). Accordingly, although it is ―the province and duty of the judicial
department to say what the law is,‖ Marbury v. Madison, 5 U.S. 137, 177 (1803), I reject the
more expansive interpretation of Hurst that three of my distinguished colleagues gave it.
73
S.B. 79, 136th Gen. Assemb., 2d Sp. Sess., 68 Del. Laws ch. 189 (Del. 1991) (citing Proffitt,
428 U.S. at 260 (White, J., concurring in the judgment) (―Under Florida law, the sentencing
judge is [r]equired to impose the death penalty on all first-degree murderers as to whom the
statutory aggravating factors outweigh the mitigating factors.‖)) (citation omitted); see also H.B.
287, 142nd Gen. Assemb., 1st Reg. Sess., 74 Del. Laws ch. 174 (Del. 2003) (―In 1991, the 136th
General Assembly changed Delaware‘s death penalty statute so that the final sentencing
authority in such cases was vested with the trial judge. [The synopsis to the 1991 amendment]
clearly stated that the intent of the bill was to ensure that the judge would ‗make the final
determination as to whether a person convicted of first degree murder should be sentenced to
death or life imprisonment.‘‖); id. (―[This Act] 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

22

 In 2002, following Ring, our statute was amended to largely reflect its present
form.74 11 Del. C. § 4209 was amended again in 2003 to reflect our General
Assembly‘s desire to have the ultimate sentencing authority reside with the judge
as opposed to the jury.75 The synopsis to the 2003 amendment states: ―This Act
re-affirms the intent of the General Assembly that the sentencing judge in a capital
murder case shall be ultimately responsible for determining the penalty to be
imposed.‖76
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

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.‖).
74
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)).
75
H.B. 287, 142nd Gen. Assemb., 1st Reg. Sess., 74 Del. Laws ch. 174 (Del. 2003).
76
Id.

23

 may evolve to eventually require jury sentencing, Hurst does not clearly mandate
jury sentencing in capital cases.
IV.

CERTIFIED QUESTION 4 IS INAPPLICABLE

Given my answer to Question 3, Question 4 is inapplicable.
V.

CERTIFIED QUESTION 5, AS TO WHETHER ANY
UNCONSTITUTIONAL PROVISION CAN BE SEVERED,
SHOULD BE ANSWERED IN THE NEGATIVE
In view 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.77

Instead, the revisions must be

addressed by the General Assembly.
VI.

CONCLUSION

What we address today is not whether capital punishment is categorically
constitutional or not. In this regard, the United States Supreme Court has recently
said that, as a matter of federal constitutional law, the death penalty is
constitutional. Last year, for example, in Glossip v. Gross,78 the Supreme Court
stated that it has ―time and again reaffirmed that capital punishment is not per se

77

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.‖).
78
135 S. Ct. 2726 (2015).

24

 unconstitutional.‖79 Indeed, the Fifth Amendment to the United States Constitution
expressly contemplates capital punishment.80
Nor is what the Delaware Constitution may require the subject of the
certified questions.

Rather, we focus on whether the United States Supreme

Court‘s decision in Hurst invalidates any portion of our State death penalty statute
as a matter of federal constitutional law only. The constitutional issues addressed
in Hurst—and, for that matter, Ring—concerned the judicial determination of
aggravating circumstances. Based upon a plain reading of Hurst, I conclude that
the only portions of our statute that are adversely impacted concern judicial
findings of aggravating circumstances not found by the jury.
From my perspective, Hurst does not reach our statute‘s provision for
judicial weighing of aggravating and mitigating circumstances. Judicial restraint
calls for leaving the issue of judicial sentencing in capital cases to a day when the
United States Supreme Court unambiguously addresses the matter.
79

As the

Id. at 2739 (citing Baze v. Rees, 553 U.S. 35, 47 (2008); id. at 87-88 (Scalia, J., concurring in
judgment); Gregg v. Georgia, 428 U.S. 153, 187 (1976) (joint opinion of Stewart, Powell, and
Stevens, JJ.); id. at 226 (White, J., concurring in judgment); Louisiana ex rel. Francis v.
Resweber, 329 U.S. 459, 464 (1947); In re Kemmler, 136 U.S. 436, 447 (1890); Wilkerson v.
Utah, 99 U.S. 130, 134-35 (1878)).
80
U.S. Const. amend. V (―No person shall . . . be deprived of life . . . without due process of law
. . . .‖); see also Glossip, 135 S. Ct. at 2747 (Scalia, J., concurring) (―Mind you, not once in the
history of the American Republic has this Court ever suggested the death penalty is categorically
impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the
Constitution explicitly contemplates. The Fifth Amendment provides that ‗[n]o person shall be
held to answer for a capital . . . crime, unless on a presentment or indictment of a Grand Jury,‘
and that no person shall be ‗deprived of life . . . without due process of law.‘‖ (emphasis in
original) (alterations in Glossip)).

25

 Supreme Court reiterated in Schad v. Arizona,81 ―[i]t goes without saying that
preventing and dealing with crime is much more the business of the States than it is
of the Federal Government.‖82 The Schad Court further observed that ―we should
not lightly construe the Constitution so as to intrude upon the administration of
justice by the individual States.‖83 Based upon the Supreme Court‘s recent remand
of three cases involving Alabama‘s death penalty statute84—a statute which bears
some similarity to Delaware‘s—the Court may eventually reconsider the issue of
judicial sentencing. But until then, I am persuaded by Justice Scalia‘s observations
in his separate concurrence in Glossip, where he stated:
Capital punishment presents moral questions that philosophers,
theologians, and statesmen have grappled with for millennia. The
Framers of our Constitution disagreed bitterly on the matter. For that
reason, they handled it the same way they handled many other
controversial issues: they left it to the People to decide.85
Accordingly, I would leave to the citizens of Delaware to decide certain issues
regarding capital punishment not directly addressed by Hurst—and I would not
declare unconstitutional other aspects of 11 Del. C. § 4209 without a clear directive
from the United States Supreme Court.

81

501 U.S. 624 (1991) (plurality opinion).
Id. at 638 (citation omitted) (internal quotation marks omitted).
83
Id. (quoting Patterson v. New York, 432 U.S. 197, 201 (1977)) (internal quotation marks
omitted).
84
Kirksey v. Alabama, 136 S. Ct. 2409 (2016); Wimbley v. Alabama, 136 S. Ct. 2387 (2016);
Johnson v. Alabama, 136 S. Ct. 1837 (2016).
85
Glossip, 135 S. Ct. at 2749-50 (Scalia, J., concurring).
82

26

 VAUGHN, Justice, dissenting:
I am not persuaded that Hurst v. Florida1 requires a finding that Delaware‘s
death penalty statute violates the Sixth Amendment to the United States
Constitution. While I have seen it written that the Florida statute, in effect at the
time of Hurst, and the Delaware statute are similar, they are fundamentally
different on a point which is central to this case. Under Florida‘s statute as it then
existed, the jury‘s finding of the existence of a statutory aggravating factor was
purely advisory. In addition, it did not need to be unanimous. A majority vote was
enough. The jury made no express finding as to the existence of any specific
statutory aggravating factor, which means that some jurors could find the existence
of one statutory aggravating factor while others could find the existence of a
different factor. Since the jury‘s role was purely advisory, the judge could reject a
jury finding that no statutory aggravating factor existed and sentence the defendant
to death based on his or her own findings. That cannot happen under Delaware‘s
statute. In Delaware the jury must find the existence of at least one specific
statutory aggravating factor unanimously and beyond a reasonable doubt in order
for the defendant to be eligible to receive the death penalty. If the jury does not
find the existence of a specific statutory aggravating factor unanimously and

1

136 S.Ct. 616, 616 (Jan. 12, 2016).

1

 beyond a reasonable doubt, the process stops, and the judge sentences the
defendant to life imprisonment.
For me, the analysis in this case begins with Apprendi v. New Jersey2 and
Ring v. Arizona.3

In Apprendi, the U. S. Supreme Court held that a factual

determination authorizing an increase in a maximum prison term must be found by
a jury beyond a reasonable doubt.4

In Ring, the Court applied Apprendi to

Arizona‘s death penalty statute.5 The Arizona statute in effect at the time of Ring
gave the jury no role in sentencing.6 The law authorized a judge to sentence a
defendant to death for the crime of murder if the judge found at least one of
certain, enumerated aggravating circumstances to exist and ―there [were] no
mitigating circumstances sufficiently substantial to call for leniency.‖ 7

This

language created a form of a weighing process which the judge engaged in if he or
she found that an aggravating circumstance existed.
The U.S. Supreme Court observed that under Arizona‘s statute, a ―death
sentence may not legally be imposed . . . unless at least one aggravating factor is
found to exist beyond a reasonable doubt.‖8 It stated that ―[t]he question presented
was whether that aggravating factor may be found by a judge, as Arizona law
2

530 U.S. 466, 466 (2000).
536 U.S. 584, 584 (2002).
4
Apprendi, 530 U.S. at 490.
5
Ring, 536 U.S. at 596.
6
Id. at 592.
7
Id. at 593 (quoting Ariz. Rev. Stat. Ann. § 13-703(F) (2001)).
8
Id. at 597 (quoting State v. Ring, 25 P.3d 1139, 1151 (Ariz. 2001) (en banc)).
3

2

 specifies, or whether the Sixth Amendment‘s jury trial guarantee, made applicable
to the States by the Fourteenth Amendment, requires that the aggravating factor
determination be entrusted to the jury.‖9 The Court reasoned that a jury must
determine ―any fact on which the legislature conditions an increase in [a
defendant‘s] maximum punishment,‖10 and overruled Walton v. Arizona11 ―to the
extent that it allows a sentencing judge, sitting without a jury, to find an
aggravating circumstance necessary for the imposition of the death penalty.‖ 12 The
opinion did not discuss any jury fact-finding role in the weighing process that
followed the finding of the existence of an aggravating circumstance.
In his concurrence in Ring, Justice Scalia said that ―today‘s judgment has
nothing to do with jury sentencing. . . . Those States that leave the ultimate life-ordeath decision to the judge may continue to do so . . . .‖13 This statement brought
no comment from the majority. Justice Breyer concurred in the judgment because
of his view that the Eighth Amendment requires jury sentencing. All of the other
eight Justices passed on the opportunity to join his concurrence.
It follows, in my view, that in 2002 when Ring was decided, the U.S.
Supreme Court held the view that the Sixth Amendment required the jury to find
the existence of an aggravating factor, unanimously and beyond a reasonable
9

Id.
Id. at 589.
11
497 U.S. 639, 639 (1990).
12
Ring, 536 U.S. at 609.
13
Id. at 612 (Scalia, J., concurring).
10

3

 doubt, in order for a defendant to be sentenced to death, but did not require that all
the facts underlying the weighing process be found by a jury, and did not require
jury sentencing. Ring stands only for the principle that the jury must find the
existence of at least one statutory aggravating factor, unanimously and beyond a
reasonable doubt, in order to elevate the defendant‘s maximum punishment from
life imprisonment to death. That is the view of Ring which this Court adopted in
Brice v. State,14 which I think was correct then and remains correct after Hurst.
The pertinent difference between Arizona‘s statute at the time of Ring and
Florida‘s statute was that under Arizona‘s statute the jury had no role in
sentencing, whereas under the Florida statute it had only an advisory role. After
Ring, that is a distinction without a difference. It is clear that the characteristics of
Florida‘s statute failed to comply with Ring‘s requirement that a jury must
determine ―any fact on which the legislature conditions an increase in [a
defendant‘s] maximum punishment.‖15 Florida never changed its statute to bring it
into compliance with Ring.16 Although Florida attempted to defend its statute
before the U. S. Supreme Court in Hurst, the statute‘s failure to comply with Ring
is actually quite obvious.

I think that after Ring was decided, the eventual

14

815 A.2d 314, 314 (Del. 2003).
Ring, 536 U.S. at 589.
16
Hurst, 136 S.Ct. at 620.
15

4

 overruling of Hildwin v. Florida17 and Spaziano v. Florida,18 which occurred in
Hurst, was very predictable.
Much is made of the sentence in Hurst which reads ―[t]he Sixth Amendment
requires a jury, not a judge, to find each fact necessary to impose a sentence of
death.‖19 When this sentence is read as supporting a conclusion that the Sixth
Amendment requires jury fact finding in the weighing process or jury sentencing, I
think it is read out of context. I believe that the most reasonable explanation of
Hurst is that it applied Ring without broadening Ring. In Hurst, the majority as
much as says so, in my opinion:
The analysis the Ring Court applied to Arizona‘s sentencing
scheme applies equally to Florida‘s. Like Arizona at the time
of Ring, Florida does not require the jury to make the critical
findings necessary to impose the death penalty.20
Another passage in Hurst recognizes the rule set forth in Ring. Referring to the
Florida Supreme Court, the Court stated:
As relevant here, the court rejected Hurst‘s argument that his
sentence violated the Sixth Amendment in light of Ring. Ring,
the court recognized, ―held that capital defendants are entitled
to a jury determination of any fact on which the legislature
conditions an increase in the maximum punishment.‖ But the
court considered Ring inapplicable in light of this Court‘s

17

490 U.S. 638, 638 (1989).
468 U.S. 447, 447 (1968).
19
Hurst, 136 S.Ct. at 619.
20
Id. at 621-22.
18

5

 repeated support of Florida‘s capital sentencing scheme in preRing 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. 582 (2002).23
The question presented did not ask whether the jury‘s fact finding role should be
broadened. Timothy Lee Hurst‘s attorneys did not argue, as far as I can determine,
that the Sixth Amendment requires that the jury must find all facts underlying the
weighing process. They did not need to because the Florida statute failed to

21

Id. at 620-21 (citations omitted).
Id. at 622 (internal quotation marks omitted).
23
Hurst v. Florida, 135 S.Ct. 1531, 1531 (2015).
22

6

 comply with Ring‘s requirement that the jury make all findings of fact which make
a defendant death eligible.
In their opening brief in the U. S. Supreme Court, the attorneys for Timothy
Lee Hurst included an argument which I read as an argument that Florida‘s death
penalty statute is unconstitutional because it is not like Delaware‘s. After arguing
that Hildwin—a case which had previously upheld Florida‘s death penalty
statute24—should be overruled, counsel for Timothy Lee Hurst argued:
Tellingly, the three other States that, at the time of Ring, had
―hybrid systems, in which the jury renders an advisory verdict
but the judge makes the ultimate sentencing determinations,‖
Ring, 536 U.S. at 608 n.6, modified their capital sentencing
schemes after Ring to ensure that the jury makes all findings
necessary for imposition of the death penalty (even if the judge
still selects the sentence). See Brice v. State, 815 A.2d 314, 320
(Del. 2003) . . . .25
Timothy Lee Hurst‘s attorneys themselves described Delaware‘s statute as one
under which ―the jury makes all findings necessary for imposition of the death
penalty.‖26 In my opinion, they are obviously referring to the death eligibility
finding. Notice the similarity of this passage from Timothy Lee Hurst‘s opening
brief to the statement in the majority opinion in Hurst that a jury must ―find each
fact necessary to impose a sentence of death.‖

24

Hildwin, 490 U.S. at 640-41.
Brief of Petitioner at 25, Hurst v. Florida, 136 S.Ct. 616 (Jan. 12, 2016) (No. 14-7505), 2015
WL 3542784 at *25.
26
Id.
25

7

 At oral argument before the Court, the first remark made by the attorney
representing Timothy Lee Hurst referred to death eligibility:
[Attorney for Timothy Lee Hurst]: Under Florida law, Timothy
Hurst will go to his death despite the fact that a judge, not a
jury, made the factual finding that rendered -- rendered him
eligible for death. That violates the Sixth Amendment under
Ring.27
Just a question later, he answers a question by again referring to death eligibility:
Justice Scalia: Is there ever a case in which the jury found
aggravators and recommended the death sentence, and the
judge reversed that finding?
[Attorney for Timothy Lee Hurst]: There may well be. This is
principally a case about the finding of death eligibility, not
sentence selection.28
Later in the argument, the attorney for Timothy Lee Hurst, in response to another
question from Justice Scalia, refers to death eligibility and not the determination of
the sentence:
[Attorney for Timothy Lee Hurst]: Justice Scalia -- exactly.
And, Justice Scalia, leaving aside our Eighth Amendment point
in our brief -- that followed on Justice Breyer‘s concurrence in
Ring, the -- this is all about the eligibility, not the determination
of what sentence applies.29
I interpret the statement in the majority opinion in Hurst that a jury must
find ―each fact necessary to impose a death sentence‖ to mean that the jury must

27

Transcript of Oral Argument at 3, Hurst v. Florida, 136 S.Ct. 616 (Jan. 12, 2016) (No. 147505), 2015 WL 5970064, at *3.
28
Id. at *4.
29
Id. at *12.

8

 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 the jury make findings of fact in the weighing process
or be the actual sentencing authority, I think it would have said so more directly
and more expressly.
Recently, in May and June of this year, the U. S. Supreme Court vacated the
judgments in three Alabama death penalty cases; and remanded one to the
Alabama Supreme Court and two to the Court of Criminal Appeals of Alabama for
further consideration in light of Hurst.30 Alabama law is relevant to the Delaware
statute. Its statute, like Florida‘s, gives the jury only an advisory role in a death
30

See Kirksey v. Alabama, 2016 WL378578 (June 6, 2016); Wimbley v. Alabama, 2016
WL410937 (May 31, 2016); Johnson v. Alabama, 136 S.Ct. 1837, 1837 (May 2, 2016).

9

 penalty sentencing. After Ring, Alabama did not amend its death penalty statute,
but the Alabama Supreme Court performed a judicial ―repair‖ to bring Alabama
into compliance with Ring.31 In Ex parte McGriff, it stated as follows:
At no time during a retrial of the charge against McGriff should
the jury be told that its decision on the issue of whether the
proffered aggravating circumstance exists is ―advisory‖ or
―recommending.‖ Rather, the jury should be instructed that, if
it determines that the aggravating circumstance does not exist,
the jury must return a verdict, binding on the trial court,
assessing life imprisonment without the possibility of parole as
the penalty. The jury should further be instructed that, if and
only if, it unanimously finds the aggravating circumstance to
exist beyond a reasonable doubt, the jury should weigh the
aggravating circumstance against the mitigating circumstance
or circumstances, if any, and to return a verdict in accordance
with § 13A-5-46(e)(2) and (3) and (f) . . . .32
The jury‘s verdict in the weighing process, like in Delaware, is advisory.
On June 17, 2016, after the remand orders, the Court of Criminal Appeals of
Alabama, in Ex parte State,33 in essence published its reconsideration of Ring after
Hurst. It soundly rejected the view that Hurst broadened Ring, stating:
The Court in Hurst did nothing more than apply its previous
holdings in Apprendi and Ring to Florida‘s capital-sentencing
scheme.
The Court did not announce a new rule of
constitutional law, nor did it expand its holdings in Apprendi
and Ring. As the State correctly argues, ―Hurst did not add
anything of substance to Ring.‖34

31

Ex parte McGriff, 908 So.2d 1024, 1037-39 (Ala. 2004).
Id. at 1038.
33
2016 WL 3364689 (Ala. Crim. App. June 17, 2016).
34
Id. at *6.
32

10

 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
sentencing. And, as before, all of the other Justices passed on the opportunity to
join in his concurrence.
I do think that there is ambiguity in Hurst. A concurring judge in the June
17, 2016 Alabama case I mention above suggests that the vagueness may be
deliberate, and I wonder the same thing.35 Justice Sotomayor, for instance, states
in her dissent from the denial of certiorari in Woodward v. Alabama that a finding
that the aggravating factors outweigh the mitigating factors is a finding of fact
which must be made by a jury.36 The case would have given the U.S. Supreme
Court an opportunity to review the Alabama death penalty statute. However, there
apparently were not three other Justices who agreed with her that certiorari should
be granted. In Woodward she was writing for herself. In Hurst she was writing for

35
36

Id. at *13.
Woodward v. Alabama, 134 S.Ct. 405, 410-11 (Nov. 18, 2013).

11

 a majority of seven. I read Hurst as stopping short of what Justice Sotomayor
stated very clearly in her dissent in Woodward.
Until the U.S. Supreme Court resolves this vagueness, I resolve it by
concluding that Hurst applies Ring as interpreted by Brice but does not broaden it.
I am satisfied that Delaware‘s death penalty statute complies with the Sixth
Amendment as the law on that amendment is currently interpreted by the U.S.
Supreme Court. Therefore, I answer the certified questions as follows:
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.

12