Who Should Make a Decision on Life and Death?

At the end of May, The Constitution Project at the Project On Government Oversight organized a “friend of the court” brief of former trial and appellate court judges in Missouri, asking the United States Supreme Court to review a death sentence imposed by a Missouri trial judge. That last part is not a typo: this was a death sentence unilaterally imposed by an elected trial court judge, not a jury, even though the capital defendant in the case—Lance Shockley—invoked his constitutional right to a trial by jury. How could this be?

Before explaining the particular concerns with Missouri’s capital sentencing scheme, it’s worth a quick review of how death penalty cases are different from other criminal trials. In the 30 states with the death penalty (and the federal government), a death penalty trial is two trials in one.

The first is the “guilt-innocence” phase, which is like any other criminal trial. Here, the jury must determine if the defendant is guilty beyond a reasonable doubt. If the jury finds the defendant guilty of a “death-eligible offense”—for example, first-degree murder—the trial then moves to the second phase, often called the sentencing or penalty phase. Here, the prosecution will try to prove to the jury specific facts in aggravation of punishment (facts tending to support a death sentence) while the defense will seek to prove facts in mitigation of punishment (facts tending to support a sentence less than death, like life imprisonment without parole). States have adopted different sentencing schemes for having the jury weigh this evidence and come up with the ultimate sentence. In many capital jurisdictions, like Missouri, the jury first has to determine if there are any aggravating circumstances (which are listed in the death penalty statute), proved beyond a reasonable doubt, before it can consider whether to impose a death sentence. The jury must then weigh those aggravators against any mitigating circumstances. In short, aggravating circumstances are necessary, but not suffici­­ent, for imposition of death. And this is where the problem comes in.

A jury found Lance Shockley guilty of first-degree murder for killing a highway patrol officer in 2005. After the close of the penalty phase, the jury found three statutory aggravating circumstances beyond a reasonable doubt. The jury also reported that it had not found any “facts or circumstances in mitigation of punishment sufficient to outweigh facts and circumstances in aggravation of punishment.”

But the jury reported it could not come to a unanimous decision on the punishment to be imposed. In many states, when a deadlocked jury cannot unanimously agree on a death sentence, the alternative punishment of life imprisonment is then imposed. However, in a handful of jurisdictions, including Missouri, a deadlocked jury at this stage means the case is taken out of the jury’s hands and given to the judge (even if, say, 11 of the 12 jurors did not want to impose a death sentence). In Shockley’s case, the trial court (in this case, the judge) “repeated the steps the jury had taken, reconsidered the facts, and made its own independent findings.” It then imposed a sentence of death.

On its face, it appears that what happened in Shockley’s case violates the Supreme Court’s 2016 decision in Hurst v. Florida. In this 8-1 decision, the Court held that a jury—not a judge—must find the facts “necessary to sentence a defendant to death.” The Court held that the Sixth Amendment right to jury trial and the Fourteenth Amendment’s Due Process Clause require that “each element of a crime be proved to a jury beyond a reasonable doubt.” Accordingly, it found that Florida’s sentencing scheme, whereby the trial judge made the ultimate factual determinations supporting a sentence of death, was unconstitutional.

The Florida sentencing scheme at issue in Hurst required the jury to first determine if the state had proved an aggravating circumstance. The jury would then weigh aggravation and mitigation and make an “advisory” recommendation to the trial court on whether the defendant should be sentenced to death. At this point, the entire decision-making process moved to the trial judge, like in Missouri. The Florida judge would then repeat the steps of the jury and make his or her own independent findings and the ultimate decision on the death penalty.

In Florida, the court—not the jury—played a “central and singular role” in determining whether a defendant would live or die. If Florida’s sentencing scheme didn’t pass constitutional muster, it is difficult to see how Missouri’s nearly identical process of judicial fact-finding in a death penalty case could.

The State of Missouri claims that because the jury did find sufficient aggravating circumstances to support imposition of a death sentence—even though they could not actually come to agreement on whether to actually impose the ultimate punishment—the standard required under Hurst that the jury find any facts that would increase the severity of the sentence is met. However, even the Missouri Supreme Court made it clear that the trial judge made an “independent review of the evidence and the findings of the jury” before deciding to sentence Shockley to death.

Problems with Judge-Imposed Sentencing in Capital Cases

As our judges’ brief highlights, placing the awesome power of determining if another person will live or die in the hands of a single individual is particularly concerning because it adds a possible source of arbitrariness to the process. Indeed, the evidence suggests this has played out in reality: Judicial sentencing is far more likely to result in a death sentence than jury decision-making. Most troublingly, it appears that this disparity is not based on legal factors, but on external—and arbitrary—influences, raising serious questions about the basic fairness of the capital punishment system in these jurisdictions.

In Missouri, where most counties elect their trial judges, records of capital cases from 2000 to present show that judges are more likely than juries to impose a death sentence: Of all the capital cases that went to penalty phase in Missouri during that time, in cases where there was no jury deadlock, the jury imposed a death sentence in 64 percent of the cases. In those where the jury deadlocked and the trial judge determined the sentence, the death penalty was imposed in 86 percent of the cases.

The evidence from other states is similar. In Delaware, a recent study showed that “[j]udges were significantly more likely to give a defendant the death sentence than were juries.” Under Delaware’s jury-determined death sentencing scheme, 11 of 57 capital defendants (19 percent) received death sentences, while under the judge-determined sentencing scheme, 31 of 58 capital defendants (53 percent) received death sentences. This difference was statistically significant, and a team of researchers who analyzed the cases found that the difference in sentencing rates was “unlikely to be explained by differences in the cases they face.” In other words, judges and juries would likely sentence defendants in cases with similar facts to different punishments.

In Alabama—which until last year allowed judges to override the decisions of even unanimous juries—from 1981 to 2011, 93 defendants were sentenced to death by an elected trial judge despite a jury’s recommendation of a life sentence. The fact that Alabama judges are elected is a particularly concerning outside influence. Capital punishment is routinely politicized in judicial elections in the state; several judges have run ads touting the cases in which they imposed death sentences.

Taken together, these examples raise the specter of influences beyond the facts of the case at hand swaying outcomes. Arbitrariness in capital punishment has led the Supreme Court to intervene in the past. The Court’s ruling in a 1972 case, Furman v. Georgia, led to every death sentence in the country being commuted to life sentences. Justice Potter Stewart wrote that the death penatly at the time violated the Eighth Amendment:

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.

The continued influence of arbitrary factors over 40 years later raises continuing legal concerns—and by hearing Shockley’s case, the Court has an opportunity to address one source of arbitrariness.

Historical Role of the Jury

Our judges’ brief also sets out important historical context concerning the traditional role of the jury in our justice system, and especially in capital cases. At the time of the Constitution’s adoption, many crimes were punishable by death. Accordingly, when the Constitution was ratified, “it was understood that juries were responsible for deciding whether a defendant would be sentenced to death.” Allowing a single person—even if that person is a judge—to make such an important decision inserts a highly undemocratic element into a judicial system: “…placing that determination in the hands of a single decision maker is little more than allowing a king to pass judgment and wield the sword—a concept that is anathema to the founders and the rights and liberties that form the bedrock of our country.” Indeed, one of the grievances listed in the Declaration of Independence was that King George III was “depriving” the colonists “of the benefits of a Trial by Jury.” And yet, Missouri’s sentencing scheme does just that.

Our brief supports Shockley’s plea that the Supreme Court review the case. The Court’s jurisprudence—and our constitutional history (indeed, even our common law history going back to the 1300s)—makes clear that the jury is the linchpin of our justice system in death penalty cases. We will now see if the Court agrees.