A Perfect Storm: Consequences of Removing the Unanimity Requirement for Death Qualified Juries

Last month, Florida's Supreme Court overturned a previous holding that required a unanimous jury verdict to hand down a death sentence. Under the new ruling, only a majority of the jury must agree to condemn a defendant to death. Florida joins only one other state—Alabama—in rejecting a constitutional requirement for unanimous death penalty verdicts. This could have potentially dire effects on the frequency of capital sentences in the state, exacerbated by longstanding problems with the fairness of death qualified juries in the first place.

The Death Qualified Jury

In order to qualify as a juror on a death penalty case, the Supreme Court has held that a potential juror must be “death-qualified”; that is, he or she must not have such strong beliefs about the death penalty that it would interfere with the juror’s ability to impose the death penalty in a given case. But over the years, the fairness of these death qualified juries has often been called into question.

Recent studies have shown that death qualified juries tend to be more conviction prone and less diverse than juries that do not have the option to impose a death sentence. A 2013 study by Aliza Plener Cover found that on average almost 30% of potential jurors in a given death penalty case were struck due to their opposition to the death penalty. When broken down by race, the numbers are more revealing; on average, across the trials studied, 35% of the black potential jurors were excused on this basis, while only 17% of the white potential jurors were excused for the same. Additionally, death qualified jurors are implicitly more trusting of the prosecution than the defense, and are much more likely to have closely followed pretrial media publicity on the case.

Non-Unanimous Death Verdicts

In the majority of states that allow juries to impose the death penalty, the jury’s verdict to impose the death sentence must be unanimous. In the event that the entire jury cannot come to the decision to impose the death penalty, 70% of these states impose an automatic life sentence. Five states allow the state to seek death again with a new jury; four states will allow the transfer of decision-making to the judge, with two of those states mandating it. Only two states—Alabama and now, Florida—allow for the judge to impose the death penalty on a non-unanimous recommendation of the jury.

In a state like Florida, where death sentences were frequent even when the verdict had to be unanimous, allowing the death penalty to be imposed when only a bare majority of jurors are convinced could have a serious impact on the number of defendants sentenced to death. Just last year, four juries in the span of a month failed to return a unanimous verdict on the death penalty; as a result, all four defendants were sentenced to life in prison by default. If the cases had been decided less than a year later, these four defendants could already be on death row.

What Comes Next?

Florida's recent ruling was just the latest in a series of changes in death penalty policy in the state. In 2017, the state legislature responded to a 2016 court ruling by making unanimous death penalty verdicts the law of the land. That statute remains in effect despite the most recent judgment, but many inmates whose death sentences had been thrown out as a result of the 2016 ruling are now in limbo. It's possible that the state will seek to reinstate their original death sentence, as some recent filings have indicated. Another possibility is that the state legislature will again change the law to reflect the Florida Supreme Court's ruling, paving the way for non-unanimous death verdicts once again.

In a state that is a leader not only in death penalty convictions, but also in death row exonerations, relaxing the standard for juries that are already prone to delivering death penalty verdicts could have a huge and serious impact for decades to come.