108A

1
AMERICAN BAR ASSOCIATION
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3
DEATH PENALTY DUE PROCESS REVIEW PROJECT
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SECTION OF INDIVIDUAL RIGHTS AND RESPONSIBILITIES
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REPORT TO THE HOUSE OF DELEGATES
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8
RESOLUTION
9
10RESOLVED, That the American Bar Association urges all federal, state, and territorial
11governments, that impose capital punishment, and the military, to require that:
12
13 (1)
Before a court can impose a sentence of death, a jury must unanimously
14
recommend or vote to impose that sentence; and
15
16 (2)
The jury in such cases must also unanimously agree on the existence of any
17
fact that is a prerequisite for eligibility for the death penalty and on the
18
specific aggravating factors that have each been proven beyond a reasonable
19
doubt.

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20

REPORT

21The vast majority of U.S. jurisdictions that have capital punishment require a jury’s
22recommendation of a death sentence to be unanimous. However, there are a few outliers that
23allow a person to be sentenced to death on the recommendation of a non-unanimous jury. This
24Recommendation urges the retention or adoption of the unanimous jury-based sentencing
25schemes maintained, and successfully utilized, by the vast majority of states, the military, and the
26Federal government. With a decision as serious and irreversible as imposing the death penalty –
27arguably the most significant determination we ask our citizens to make – the American Bar
28Association believes that the vote of the jury should be unanimous both in its fact-finding role on
29the aggravating circumstances that legally allow consideration of a death sentence and in the
30ultimate determination that permits a court to impose a sentence of death.
31
32As this Report outlines, this Recommendation complements the ABA’s other policies and
33principles reflecting its longstanding and strong support of jury verdict unanimity, particularly in
34criminal trials, and the ABA’s extensive policies on the importance of ensuring that death penalty
35cases are administered fairly and impartially, in accordance with due process. This
36Recommendation, which speaks to the particular significance of the sentencing determination in
37a death penalty case, shall reflect the ABA’s position that when imposition of the ultimate
38punishment is to be permitted, unanimity in the jury’s decision is essential.
39
40 I.
Background
41
42The capital punishment laws currently used in the United States have been approved by the
43Supreme Court only since 1976, when the newly enacted death penalty statutes of Georgia,
44Florida, and Texas were upheld, effectively reinstating the constitutionality of the modern death
45penalty in Gregg v. Georgia and its companion cases.1 Although the three capital punishment
46statutes provided for differing sentencing structures, all permitted jury input with schemes that
47the Court found guaranteed the reliability required by the Eighth Amendment.2
48
49However, of the 32 U.S. states that currently have the death penalty, only three do not now
50require that the jury that votes on the life or death sentence be unanimous in its final sentencing
51recommendation or decision; the federal government also requires unanimity.3 Alabama permits
52a jury to recommend a death sentence on a vote of 10-2 and that vote is not binding on the trial
53court.4 By judicial decision, Alabama ensures that every death sentence has been based on a
54unanimous finding of at least one aggravating circumstance.5 But Alabama also permits the
55judge to make a decision to issue a death sentence, even after a unanimous jury makes a
56recommendation for a life sentence. Delaware requires that the jury unanimously find at least
57one aggravating circumstance beyond a reasonable doubt and that the jury note how each juror
58voted on the decision whether the aggravating circumstances outweigh the mitigating
11 Gregg v. Georgia, 428 U.S. 153 (1976) (joint opinion); Proffitt v. Florida, 428 U.S. 242 (1976) (joint opinion);
2Jurek v. Texas, 428 U.S. 262 (1976) (joint opinion).
32 Gregg, 428 U.S. at 181; Proffitt, 428 U.S. at 252; Jurek, 428 U.S. at 276.
43 Fed. R. Crim. P. 31 (a).
54 Ala. Code § 13A-5-46-47 (2012).
65 See, e.g., Ex parte McNabb, 887 So. 2d 998, 1005-05 (Ala. 2004); Ex parte Waldrop, 859 So. 2d 1181, 1188 (Ala.
72002); McCray v. State, 88 So. 3d 1, 82 & n.33 (Ala. Crim. App. 2010).

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59circumstances, but leaves the sentencing decision to the trial judge.6 Finally, Florida requires
60neither a unanimous jury recommendation nor a unanimous finding by the jury that any
61aggravating circumstance has been proved.7 A Florida jury can recommend a death sentence to
62the trial judge on a simple majority vote of the 12 jurors, and there is no special verdict required
63that would reflect the vote on the aggravating circumstances.8
64
65In 2002 there was a sea change in terms of the legal significance of jury sentencing decisions in
66capital cases when, in Ring v. Arizona, the U.S. Supreme Court concluded that capital defendants
67“are entitled to a jury determination of any fact on which the legislature conditions an increase in
68their maximum punishment.”9 While the issue of whether the Sixth Amendment required the
69jury to make the ultimate penalty determination was not before the Court,10 the Court observed
70that “the great majority of States responded to the Court’s Eighth Amendment decisions
71requiring the presence of aggravating circumstances in capital cases by entrusting those
72determinations to the jury.”11 The Court then held that because the enumerated aggravating
73circumstances “operate as the functional equivalent of an element of a greater offense, the Sixth
74Amendment requires that they be found by a jury.”12
75
76The Ring Court, quoting from Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968), also generally
77extolled the virtue of trial by jury, explaining, “[t]he guarantees of jury trial in the Federal and
78State Constitutions reflect a profound judgment about the way in which law should be enforced
79and justice administered.”13 In a concurring opinion, Justice Scalia bemoaned the “perilous
80decline” in the belief in the right to a jury trial, and noted:
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82
That decline is bound to be confirmed, and indeed accelerated, by the repeated spectacle
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of a man’s going to his death because a judge found that an aggravating factor existed.
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We cannot preserve our veneration for the protection of the jury in criminal cases if we
85
render ourselves callous to the need for that protection by regularly imposing the death
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penalty without it.14
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88Following Ring, the Supreme Court of Florida, in State v. Steele, addressed the lack of any jury89unanimity requirement in the Florida death penalty scheme and underscored the need for that
90state’s legislature to change its statute:
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[W]e express our considered view, as the court of last resort charged with implementing
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Florida’s capital sentencing scheme, that in light of developments in other states and at
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the federal level, the legislature should revisit the statute to require some unanimity in the
86 Del. Code Ann. Tit. 11, § 4209(c)(3)(A) (West 2013).
97 Even in 1976, Florida’s capital sentencing scheme was particularly unique in that the jury only recommended a
10sentence, its recommendation need not be unanimous or by any particular numerical vote, and the trial judge was
11permitted to override the jury’s sentencing vote, whether it was for a life or a death sentence. See Proffitt, 428 U.S.
12at 252; see also, Spaziano v. Florida, 468 U.S. 447 (1984).
138 Fla. Stat. §§921.141(2)-(3) (2014).
149 536 U.S. 584 at 589 (2002).
1510 Id. at 597 n.4
1611 Id. at 607-08 (footnote omitted).
1712 Id. at 609 (citation omitted).
1813 536 U.S. at 609.
1914 Id. at 612 (emphasis in original).

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jury’s recommendations. Florida is now the only state in the country that allows a jury to
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decide that aggravators exist and to recommend a sentence of death by a mere majority
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vote.15
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99To date, however, Florida’s legislature has not voted to change its statute that provides for a
100recommendation from a simple majority of capital sentencing jurors, and Delaware and Alabama
101also have not taken significant steps to reform their laws.
102
103 II.
The Importance of Unanimity
104
105Not only is the principle that juries should be unanimous steeped in the common law dating back
106to the 14th Century and in American jurisprudence as early as the 19th Century,16 but more recent
107jury research over the past two decades has established that eliminating the unanimity
108requirement “can result in truncating or even eliminating jury deliberations.”17 Empirical studies
109have revealed that, without a unanimity requirement for a recommendation of death, capital
110jurors do not devote the same energy or emotional commitment to the discussion among jurors
111on the ultimate sentencing decision, and pro-death jurors are able to overpower and ultimately
112silence undecided or minority viewpoint jurors.18 As Cantero & Kline aptly explain:
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114
[C]ourts that allow a non-unanimous jury to render a verdict invariably empower
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superficial, narrow, and prejudiced arguments that appeal only to certain groups.
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Unanimous verdicts ensure that defendants are convicted on the merits and not merely on
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the whims of a majority.19
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119Thus, the data suggest that any measure that encourages jurors to devote more time and thought
120to deliberations, and empowers minority jurors to voice their opinions and fully participate in the
121process, increases the reliability of jury determinations and is a constitutional imperative. It is
122crucial that jurors seriously discuss and consider all of the evidence, both with regard to
123aggravation and mitigation, before issuing a recommendation or decision supporting a death
124sentence.
125
126Reaching a unanimous consensus is particularly critical when the jury is determining what
127aggravating circumstances, if any, have been proven. When the Supreme Court invalidated the
128death penalty in Furman v. Georgia, the central concern was that defendants were being
129condemned to death arbitrarily and capriciously.20 In an oft quoted assessment, Justice White
130pointed out that the schemes under review provided “no meaningful basis for distinguishing the
2015 921 So. 2d 538 at 548 (Fla. 2005) (emphasis in original).
2116 See Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated
22History, 44 HASTINGS L.J. 579, 586 (1993); American Publishing Co. v. Fisher, 166 U.S. 464 (1897).
2317 Kim Taylor-Thompson, Empty Votes in Jury Deliberations, 113 Harv. L. Rev. 1261, 1263 (2000).
2418 See William J. Bowers et al., The Decision Makers: An Empirical Examination of the Way the Role of the Judges
25and Jury Influence Death penalty Decision-Making, 63 Wash. & Lee L. Rev. (2006); Samuel Sommers, On Racial
26Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations, 90
27J. Personality & Soc. Psychol. 597 (2006); Dennis J. Devine et al., Jury Decision Making: 45 Years of Empirical
28Research on Deliberating Groups, 7 Phsycol. Pub. Pol’y & L 622, 669 (2001)
2919 Raoul G. Cantero & Robert M. Kline, Death is Different: The Need for Jury Unanimity in Death Penalty Cases,
3022 St. Thomas Law Rev. 31-32 (2009) (Footnotes omitted).
3120 See, e.g., 408 U.S. at 313 (White, J., concurring).

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131few cases in which [the death penalty] is imposed from the many cases in which it is not.”21 To
132address the Furman Court’s concerns that capital sentencers had unguided discretion, legislatures
133subsequently delineated aggravating circumstances that – whether or not one or more of them
134were prerequisites to consideration of capital punishment – were justified as channeling the
135jury’s discretion and narrowing the scope of homicides for which the death penalty may be
136imposed in order to establish less arbitrary – and constitutional – death penalty statutes.22 They
137clearly are, as the Supreme Court has said, the functional equivalent of elements of the offense
138when their existence is a prerequisite to imposing the death penalty. 23 But aggravating
139circumstances also play a special role that can lead to a death rather than life outcome when they
140are otherwise considered as part of a sentencing determination.
141Because the ABA has long sought to ensure that “death penalty cases are administered fairly and
142impartially,”24 it is manifest that the jury’s determination that any aggravating circumstance has
143been established should be by a unanimous vote, upon proof beyond a reasonable doubt. Indeed,
144capital juries are often asked to weigh evidence of one or multiple statutorily-specified
145aggravating factors against mitigation evidence, or are allowed to consider additional or “catch146all” evidence as aggravating that was not proven as an element of the crime but may otherwise
147justify the death penalty. Therefore, under most death penalty schemes, evidence of specific
148aggravators clearly plays a special role in determining whether or not the death penalty is
149ultimately appropriate.
150
151Plus, this is a complicated and unique analysis being requested of a capital sentencing jury – or
152any jury, for that matter. Requiring unanimity on this most crucial determination, as discussed
153above, promotes a thorough and reasoned resolution.25 And the reasonable doubt standard is the
154“prime instrument for reducing the risk of [sentences] resting on factual error.”26 When
155aggravating circumstances must be unanimously found beyond a reasonable doubt a
156community’s confidence that its capital scheme is designed to defeat arbitrary and capricious
157infliction of the death sentence is likely enhanced, as is the integrity of the entire process.
158
159Additionally, to the extent that lack of unanimity on the finding of an aggravating circumstance
160or on the final sentencing verdict reflects jurors’ lack of complete confidence in the evidence
161presented to them, the constantly growing number of exonerations of death-sentenced individuals
162nationwide supports the value of jury unanimity. Indeed, there are now 147 individuals
163exonerated from death row nationwide, and 25 of those, more than any other state, come from
164Florida, where there is no unanimity requirement on the aggravating-circumstance findings and a
165simple majority of jurors can authorize a death sentence.27
3221 Id.

3322 See, e.g., Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (plurality opinion); Gregg v. Georgia, 428 U.S. at 1963497; Profitt v. Florida, 428 U.S. at 258.
3523 Ring, 536 U.S. at 609 (citation omitted).
3624 ABA Resolution 107 (Feb. 1997).
3725Capital jury researchers have found that jurors are often confused about how to conduct the statutorily required
38weighing of aggravation and mitigation evidence. See e.g. William J. Bowers, The Capital Jury Project: Rationale,
39Design, and Preview of Early Findings, 70 Ind. L. J. 1043 (1995). Thus, requiring jurors to methodically determine
40unanimity on each aggravating factor presented may help prevent truncation of this process.
4126 In re Winship, 397 U.S. 358, 363 (1970).
4227 Death Penalty Information Center, http://www.deathpenaltyinfo.org/innocence-and-death-penalty#inn-st (last
43visited Nov. 14, 2014).

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166
167 III.
Existing ABA Policies Support Unanimous Verdicts
168
169In recognition of these principles of American justice and the empirical evidence discussed
170above, the ABA has enacted several policies related to the importance of unanimity in jury
171verdicts, but not yet on jury death penalty sentencing determinations. In 1974, the ABA first
172took a firm stance on the necessity of unanimity in federal criminal cases. The resolution states
173that the ABA is “opposed to the concept of less than unanimous verdicts in Federal criminal
174cases.” In the accompanying policy report, the Committee detailed the rationale for its position,
175stating that “God’s most precious gifts of life/liberty are involved in Federal criminal cases” and
176as such, “our time-honored procedures for depriving a person of these precious gifts only by a
177unanimous verdict by a jury of his peers should be retained.”28
178
179Subsequently, the Commission on Standards of Judicial Administration published Standards
180Relating to Trial Courts, calling for all criminal case jury verdicts to be unanimous, not just
181federal cases. The ABA also has promulgated its extensive and widely-cited Criminal Justice
182Standards and Jury Principles that both reflect the ABA’s strong position favoring unanimous
183jury verdicts in all criminal cases.29 Specifically, Standard 15-1.1 (c) calls for a unanimous jury
184verdict in all cases “in which confinement in jail or prison may be imposed,” and Jury Principle 4
185(b), promulgated in 2005, uses similar language, saying “a unanimous decision should be
186required in all criminal cases heard by a jury.”
187
188The accompanying commentary for Jury Principle 4 cites both historical and empirical reasons
189that jury unanimity is vitally important, including findings like the research cited above and other
190evidence. In criminal trials, there is a heightened need for accuracy when “a person’s liberty is at
191risk and society faces the threat of mistaken acquittal or conviction.”30 Several studies have
192shown that unanimous verdicts provide this accuracy through increased minority juror
193participation. As the accompanying commentary notes, unanimous verdicts require “each point
194of view to be considered and all jurors persuaded.” Wide ranging discussions with all jurors
195participating are “likely to be more accurate” than the non-unanimous alternative. Moreover, a
196non-unanimous verdict “fosters a public perception of unfairness and undermines acceptance of
197verdicts and the legitimacy of the jury system.”31 In the death-penalty realm, this perception is
198exacerbated by the statistical evidence that, after controlling for variables, black defendants who
199kill white victims have a significantly greater chance of being sentenced to death.32
200
201Additionally, the ABA’s Death Penalty Due Process Review Project, in conjunction with
202independent state-based experts, has coordinated comprehensive studies and analyses of the
203administration of capital punishment in twelve U.S. states.33 The assessments were designed to
204give jurisdictions an objective instrument to evaluate their administration of the death penalty, by
4428 See ABA Resolution 134 (Aug. 1974).
4529 ABA Standards for Criminal Justice (1978); ABA Principles for Juries and Jury Trials (2005).
4630 ABA Principles for Juries and Jury Trials at 25 (2005).
4731 Id. at 24-25 (internal citations omitted).
4832 David C. Baldus et al., Equal Justice and the Death Penalty, 150 (1990).
4933 ABA Death Penalty Due Process Review Project,
50http://www.americanbar.org/groups/individual_rights/projects/death_penalty_due_process_review_project/death_pe
51nalty_assessments.html (Last visited Nov. 14, 2014).

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205comparing the actual practices in the state with a series of recommendations based on the
206original 2001 ABA Protocols on the Administration of Capital Punishment and the revised
207version in 2010. The Project completed assessments of both Florida and Alabama in 2006, and
208in both reports the Assessment Teams, made up of law and psychology professors, former judges,
209prosecutors, and defense lawyers, specifically recommended changing the states’ laws allowing
210for non-unanimous jury recommendations that death be imposed.34
211
212Finally, the ABA has sought meaningful application of its overarching position favoring jury
213verdict unanimity, submitting an amicus curiae brief in Lee v. Louisiana before the Supreme
214Court of the United States in 2008. The ABA asked the Court to grant certiorari in Lee to
215consider whether the Sixth Amendment right to jury trial, as applied to the States through the
216Fourteenth Amendment, should allow a criminal conviction based on a non-unanimous jury
217verdict. The brief noted that the “ABA’s long-standing position on jury unanimity in criminal
218trials is the result of its continuing and comprehensive study of the jury’s role in the criminal
219justice system” and extensively cited the aforementioned policies calling for unanimous jury
220verdicts set forth in the ABA Criminal Justice Standards on Trial by Jury and the ABA Jury
221Principles.
222
223 IV.
Conclusion
224
225In short, the ABA believes in the vital and time-honored role of the American jury as fact-finder,
226expressing the “conscience of the community.”35 For the reasons stated in this Report and in the
227other ABA policies surrounding the importance of verdict unanimity and the reasonable doubt
228standard, all capital jurisdictions should require their sentencing juries to determine unanimously
229and beyond a reasonable doubt the existence of any aggravating circumstance, and, ultimately, to
230reach a unanimous determination that a death sentence is legally warranted in a particular case.
231This deliberative function is crucial in order to ensure that the death sentence is not being
232unfairly or arbitrarily imposed. The decisions from the United States Supreme Court on the size
233and vote requirements for petit juries generally, 36 coupled with the empirical data about jury
234behavior and the capital jurisprudence that underscores that "death is different," reinforce the
235significance of and need for juror unanimity in the determination whether a man or woman lives
236or dies.37
237
238
239Respectfully submitted,
240
241Virginia E. Sloan, Chair
242Death Penalty Due Process Review Project
5234 Evaluating Fairness and Accuracy in State Death Penalty Systems: The Florida Death Penalty Assessment
53Report, pg. x, September 2006 (“The State of Florida should require that the jury’s sentencing verdict in capital
54cases be unanimous and, when the sentencing verdict is a death sentence, that the jury reach unanimous agreement
55on at least one aggravating circumstance.”); Evaluating Fairness and Accuracy in State Death Penalty Systems: The
56Alabama Death Penalty Assessment Report, pg. vi, June 2006 (“The State of Alabama should require that the jury be
57unanimous before it may recommend a sentence of death.”).
5835 Witherspoon v. Illinois, 391 U.S. 510, 519 (1968).
5936 See Burch v. Louisiana, 441 U.S. 130 (1979).
6037 Cantero & Kline, supra, at 17-25.

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243February 2015
244
245Mark I. Schickman, Chair
246Section of Individual Rights and Responsibilities
247February 2015
248

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249
GENERAL INFORMATION FORM
250
251Submitting Entity: Death Penalty Due Process Review Project, Co-sponsor: Section of Individual
252Rights and Responsibilities
253
254Submitted By: Virginia Sloan, Chair, Death Penalty Due Process Review Project; Mark I.
255Schickman, Chair, Section of Individual Rights and Responsibilities
256
257
2581. Summary of Resolution(s).
259
260This Recommendation addresses the particular significance of the sentencing determination in a
261death penalty case and calls upon all jurisdictions with capital punishment to require the jury to
262unanimously recommend or vote for a death sentence before such punishment can be imposed.
263Additionally, a capital sentencing jury should unanimously agree on the existence of any fact
264whose existence is a prerequisite for eligibility for death, and unanimously agree on the specific
265aggravating factors that have each been proven beyond a reasonable doubt.
266
2672. Approval by Submitting Entity.
268
269Yes, the Steering Committee of the Death Penalty Due Process Review Project approved the
270Recommendation. The Council of the Section of Individual Rights and Responsibilities approved
271the Recommendation on November 8, 2014 at the Section’s Fall Meeting in Snowbird, Utah.
272
2733. Has this or a similar resolution been submitted to the House or Board previously?
274
275No.
276
2774. What existing Association policies are relevant to this Resolution and how would they be
278
affected by its adoption?
279
280The American Bar Association has no existing policies specific to death penalty sentencing jury
281recommendations. However, this resolution complements extensive ABA policies on the
282importance of jury verdict unanimity in criminal cases, as well as the ABA policies related to the
283death penalty that seek to protect the constitutional rights of persons facing possible death
284sentences, including the 1997 ABA Policy Supporting a Temporary Halt on Executions in the
285United States and the 2003 ABA Guidelines for the Appointment and Performance of Defense
286Counsel in Death Penalty Cases.
287
2885. If this is a late report, what urgency exists which requires action at this meeting of the
289 House?
290
291N/A. The report is not late filed, but the Recommendation should be considered at the 2015 Mid292Year meeting so that the ABA is able to engage in the policy discussions surrounding reform
293legislation to be introduced in January 2015 in Florida.
294

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2956. Status of Legislation.
296
297There is no relevant legislation pending in Congress, but there was legislation introduced in the
298Florida Legislature last year, SB 344, introduced by Senator Altman, that would change Florida’s
299existing law to comply with this Recommendation. As that bill did not pass in the last
300legislative cycle, legislators have expressed the intention to re-file a version of the bill in 2015.
301
3027. Brief explanation regarding plans for implementation of the policy, if adopted by the House
303
of Delegates.
304
305If this recommendation and resolution are approved by the House of Delegates, the sponsors will
306use that approval to provide information to policymakers and other stakeholders about the
307importance of juror unanimity in capital sentencing. The policy will support the filing of amicus
308briefs in cases that present issues related to death sentences imposed by non-unanimous juries.
309The sponsors will also use the policy to consult on issues related to jury unanimity when called
310upon to do so by judges, lawyers, government entities, and bar associations.
311
3128. Cost to the Association.
313
314None.
315
3169. Disclosure of Interest.
317
318N/A.
319
32010. Referrals.
321
322
Death Penalty Representation Project
323
Criminal Justice Section
324
Government and Public Sector Lawyers Division
325
Section of International Law
326
Section of Litigation
327
Section of State and Local Government Law
328
Tort Trial and Insurance Practice Section
329
Judicial Division
330
Law Student Division
331
Solo, Small Firm and General Practice Division
332
Senior Lawyers Division
333
Young Lawyers Division
334
Center for Racial & Ethnic Diversity
335
Standing Committee on Legal Aid and Indigent Defense
336
337
338
339
340

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34111. Contact Name and Address Information (prior to the meeting)
342
343Misty Thomas, Director
344ABA Death Penalty Due Process Review Project
3451050 Connecticut Ave, NW
346Washington, DC, 20036,
347Tel: 202-662-1595
348Cell: 202-210-8894
349E-mail: misty.thomas@americanbar.org
350
35112. Contact Name and Address Information. (Who will present the report to the House?)
352
353Walter White, Delegate
354ABA Section of Individual Rights and Responsibilities
355McGuire Woods LLP
35611 Pilgrim Street
357London EC4V 6RN, United Kingdom
358Tel: 202-857-1707
359Email: wwhite@mcguirewoods.com
360

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361
EXECUTIVE SUMMARY
362
3631.
Summary of the Resolution
364
365This Recommendation addresses the particular significance of the sentencing determination in a
366death penalty case and calls upon all jurisdictions with capital punishment to require the jury to
367unanimously recommend or vote for a death sentence before such punishment can be imposed.
368Additionally, a capital sentencing jury should unanimously agree on the existence of any fact
369whose existence is a prerequisite for eligibility for death, and unanimously agree on the specific
370aggravating factors that have each been proven beyond a reasonable doubt.
371
3722.
Summary of the Issue that the Resolution Addresses
373
374This resolution addresses the outlier policies in a handful of states that do not require a jury to be
375unanimous before imposing the sentence of death. This resolution clarifies that the ABA’s long376standing policies in favor of unanimous jury verdicts also extends to the profoundly significant
377decision by a jury of whether a person convicted of a capital crime should be put to death.
378
3793.
Please Explain How the Proposed Policy Position will address the issue
380
381The proposed policy will clarify the ABA’s view on the best practice in this area of criminal law
382and highlight the outlier status of the three places that still allow non-unanimous decisions to
383lead to a recommendation of death.
384
3854.
Summary of Minority Views
386
387There has been no opposition raised or any minority views expressed within the American Bar
388Association to this Recommendation. The opposition in the outlier states is usually based on a
389claim that a unanimity requirement would reduce the number of sentences of death imposed in
390that jurisdiction and lead to a reduction in the availability of the death sentence generally.
391