Why the Alabama Supreme Court Decision in Ex parte Bohannon Violates the Constitution and Precedent
Updated: Oct 20
EDITOR'S NOTE: This article was originally published in print under the title, "'Evolving Standards of Decency' Require That a Capital Defendant Only be Sentenced to Death by a Unanimous Jury: Why the Alabama Supreme Court Decision in Ex parte Bohannon Violates the Constitution and Supreme Court Precedent" in the The Criminal Law Practitioner Volume XII, Issue I.
Alabama courts have continuously held that its capital sentencing statute is constitutional, even in light of Supreme Court precedent suggesting otherwise. Although the Supreme Court has not given concrete guidance on whether the Sixth Amendment protections that apply during the trial phase apply equally at the sentencing phase, the Court insists that the requirements of due process are heightened at capital sentencing, and it has provided us with enough guidance as to what a constitutionally valid capital sentencing statute entails. The Alabama supreme court holds that their capital sentencing statute is constitutional because the jury, and not the judge, unanimously decides whether an aggravating circumstance exists beyond a reasonable doubt. However, the Alabama Court has failed to account for other factors in their capital sentencing statute that contradict Supreme Court precedent and the Sixth and Eighth Amendments to the Constitution. Alabama’s capital sentencing statute removes important protections specified by the Sixth and Eighth Amendments that protect capital defendants at the sentencing phase. This paper argues that removing these protections violates well-established Supreme Court precedent as well as the Constitution, which requires that a death sentence only be imposed by a unanimous jury.
Part I of this paper will discuss the Alabama Supreme Court’s decision in Ex parte Bohannon, and give an overview of the factual background of the case. Part II will discuss Supreme Court precedent in Furman v. Georgia,Gregg v. Georgia, Apprendi v. New Jersey, Ring v. Arizona, Hurst v. Florida, and Ramos v. Louisiana.In discussing this precedent, this Part will analyze the history of the death penalty and underscore the current standard by which a capital sentencing statute is analyzed. Part III will apply Supreme Court precedent to Alabama law and discuss why the ruling in Bohannon was incorrect. Part III is broken into two parts; the first part, Part III-A, will discuss how Alabama law enables arbitrary and capricious jury sentencing in violation of early Supreme Court precedent. The second part, Part III-B, will discuss how Alabama law violates a defendants Sixth Amendment rights. Finally, Part IV will discuss how evolving standards of decency require a unanimous jury sentence prior to sentencing a defendant to death.
In the Bohannon case, the defendant, Jerry Bohannon, along with two other men, Anthony Harvey and Jerry Duboise, were in the parking lot of an Alabama nightclub around 7:30am on December 11, 2010. Security cameras showed that Duboise and Bohannon were having a conversation until Duboise moved away from Bohannon and slightly pushed him. Harvey then came over to join them, and the three men appeared to be having a conversation until Harvey and Duboise turned to walk away from Bohannon. Bohannon reached under his shirt for a gun. Bohannon cocked the gun, causing the two men to turn around and look at Bohannon before turning to run away. Bohannon pursued the men, shooting at them multiple times. The two men turned a corner and then reappeared with guns of their own. A gunfight ensued. Harvey received a single gunshot wound to the upper left chest as well as skull trauma and a shoe print on his face. Duboise received multiple gunshot wounds; one bullet striking his liver, and another striking his stomach and kidney. Witnesses also claimed that Bohannon pistol whipped Duboise in the face, dislodging his teeth from his mouth and fracturing his skull. “Both Harvey and Duboise died from injuries inflicted by Bohannon.”
In June 2011, Bohannon was charged with two counts of capital murder in connection with the deaths of Harvey and Duboise. Following a jury trial, Bohannon was convicted on both counts. During the penalty phase of the trial, the jury recommended by a vote of 11-1 that Bohannon be sentenced to death, and the circuit court sentenced Bohannon to death for each capital murder conviction. Bohannon appealed, and the Court of Criminal Appeals affirmed one of Bohannon’s capital-murder convictions but remanded the case for the circuit court to set aside one of Bohannon’s capital-murder convictions, and its sentence in light of a double-jeopardy violation. Then, on remand, the Court of Criminal Appeals affirmed Bohannon’s death sentence. The Supreme Court of Alabama granted certiorari review based on two grounds; (1) whether Bohannon’s death sentence must be vacated in light of Hurst v. Florida, and (2) whether the circuit court’s characterization of the jury’s penalty phase determination as an advisory recommendation conflicts with Hurst. The Alabama Supreme Court answered “no” to both questions, and upheld Bohannon’s death sentence.
The Alabama Supreme Court stated that because Alabama law requires a jury to make the unanimous finding of an aggravating circumstance, the sentencing statute does not violate Supreme Court precedent. The Alabama Supreme Court found that the United States Supreme Court has not held that the Sixth Amendment requires that a jury impose a capital sentence; and also found that the jury is permitted to make a sentencing recommendation to the judge. Part III of this paper will show that the Alabama Supreme court was incorrect as to its decision on both questions, as Bohannon’s death sentence conflicts with the holding in Hurst.
The death penalty has long been a contested issue in the United States. In 1972, the Supreme Court struck down the constitutionality of the death penalty in Furman v. Georgia, holding that the unlimited discretion afforded to sentencing authorities resulted in arbitrary and capricious application of the death penalty in violation of the Eighth and Fourteenth Amendments. The lack of guidance, the Court held, permitted the death penalty to be discriminatorily and disproportionately carried out on the poor and on blacks. In an attempt to reign in the discretion afforded to sentencing officials, many states began to modify their capital sentencing statutes.
One such law came under Supreme Court review in 1976. In one of the most prominent death penalty rulings that still guides states’ capital sentencing statutes today, Gregg v. Georgia ruled the death penalty constitutional, just four years after Furman v. Georgia was decided. The Court, in Gregg v. Georgia, held that “the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.” In reaching its decision, the Court analyzed the Georgia statute at issue in the case and held that in order to comport with the Eighth Amendment, the Court must determine if the sentence “comports with the basic concept of human dignity.” The Eighth Amendment has been interpreted in a flexible manner that must accord with the evolving standards of decency. Evolving standards of decency provide that a sentence may comport with the concept of human dignity if (1) the penalty accords with the dignity of man, (2) the punishment does not involve unnecessary and wanton infliction of pain, and (3) the punishment is not grossly out of proportion to the severity of the crime. Since Gregg v. Georgia, the Supreme Court has provided states with more guidance on what states may permit judges and juries to do at sentencing.
In the noncapital case of Apprendi v. New Jersey, the Supreme Court held that New Jersey’s hate crime statute, which authorized the increase in a maximum prison sentence based on a judge’s finding, violated the due process clause of the Fourteenth Amendment. “[A]ny fact that increases the penalty for crime beyond the statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.” The Court further found that although the state legislature placed its hate crime enhancer within the sentencing provisions of the criminal code, it did not mean that the finding of the biased purpose to intimidate was not an essential element of the offense. The Court made clear that it was not impermissible for judges to exercise discretion, taking into consideration various factors when imposing a judgment within the range prescribed by statute, but due process and associated jury protections extend, to some degree, “to determinations that go not to a defendant’s guilt or innocence, but simply to the length of his sentence.”Two years after the Apprendi decision, the Supreme Court decided Ring v. Arizona.
In Ring, the defendant was sentenced to death after the jury found Ring guilty of the first-degree felony of murder and the judge found that the two aggravating circumstances outweighed the mitigating circumstances. The question was whether, as Arizona law provided, it was constitutional for an aggravating circumstance to be found by the judge, or whether that determination must be entrusted to the jury. The U.S. Supreme Court held that Arizona law, which permitted a judge to find the aggravating circumstance necessary to impose the death penalty, was an unconstitutional violation of the Sixth Amendment right to a jury trial. In its finding, the Court stated that a judge may not do the fact-finding necessary to determine the presence or absence of aggravating factors necessary for the imposition of the death penalty, officially expanding its holding in Apprendi to apply to defendants in capital cases. After the Court’s decision in Ring v. Arizona, the Supreme Court took up the constitutionality of Florida’s death penalty statute in Hurst v. Florida.
The Supreme Court in Hurst v. Florida, ruled that Florida’s capital sentencing statute violated the Sixth Amendment. The statute in question consisted of a jury rendering an advisory verdict for a sentence of life or death, which then permitted the judge to ignore that verdict. “[N]otwithstanding the recommendation of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death.”The Court held that the “Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” The Supreme Court, in earlier decisions, had stated that the judge may exercise discretion when imposing sentences within statutory limits. However, in Apprendi, the Court held that the Due Process Clause of the Fourteenth Amendment requires that any finding that exposes a defendant to a greater punishment than is authorized by a jury’s verdict must be submitted to the jury and proven beyond a reasonable doubt. A defendant may not be exposed to a penalty exceeding the maximum he would receive if punished by jury verdict alone. The holding in Hurst, therefore expanded on the Court’s holdings in Apprendi, and Ring, requiring the jury to do the necessary fact-finding in a capital case, and prohibits a judge from overriding a jury’s sentence.
Finally, in the most recent case of Ramos v. Louisiana, the Supreme Court held that “[t]he Sixth Amendment right to a jury trial . . . requires a unanimous verdict to convict a defendant of a serious offense.”
So, the current standard for analyzing the constitutionality of the death penalty is (1) a sentencing statute may not permit the arbitrary and capricious imposition of death penalty; (2) any fact-finding that conditions the imposition of the death penalty must be entrusted to the jury, a jury’s mere recommendation is not enough; (3) Any fact that exposes the defendant to a greater punishment than authorized by the jury’s guilty verdict must be submitted to the jury, a defendant may not be exposed to a penalty exceeding that which he would receive if punished by jury verdict alone;and (4) the imposition of the death penalty must comport with the Eighth Amendment and evolving standards of decency.
What the current precedent does not make clear is whether the Supreme Court’s most recent holding in Ramos v. Louisiana, requiring unanimous jury verdicts in noncapital cases, applies to capital defendants at the penalty phase. In the earlier noncapital case of Apprendi v. New Jersey, the Supreme Court extended the protections found in that case, to apply to capital defendants in Ring v. Arizona. This paper similarly argues that the holding in Ramos v. Louisiana, applies with equal force to capital defendants at the penalty phase. Defendants in capital cases, are entitled to a unanimous jury sentence before the death penalty can be imposed. As this paper will show, to hold otherwise would be to violate the Constitution and well-established Supreme Court precedent.
Alabama Law Permits Arbitrary and Capricious Sentencing in Violation of Furman v. Georgia and Gregg v. Georgia
The imposition of the death penalty under Alabama law is arbitrarily and capriciously applied to capital defendants and violates the Eighth Amendment’s ban on cruel and unusual punishment. Alabama law eliminates the protection against arbitrary and capricious sentencing that first caused concern in Furman v. Georgia. In Furman, the Court cited evidence showing that the death penalty was unequally imposed in instances where defendants were poor, young, ignorant, and black. The Court, in holding the death penalty unconstitutional, said that the “unequal application of the death penalty was a violation of the Eighth Amendments’ ban on cruel and unusual punishment.” A punishment is cruel and unusual when it is (1) contrary to established law and (2) unequal in its application as to each defendant.
1. Alabama’s Trial System is Contrary to Established Law
In reinstating the constitutionality of the death penalty, the Supreme Court in 1976, held that a capital sentencing statute that permits a bifurcated trial where sentencing authorities are apprised of any information relevant to the imposition of a sentence, and also provides for standards to guide its use of that information, can be found constitutional. The bifurcated trial system was therefore meant to provide suitable direction and alleviate concerns of arbitrary and capricious sentencing.
In the first stage of a bifurcated trial, the defendant’s guilt or innocence is determined, the guilt phase, and in the second stage a sentencing hearing is conducted, the penalty phase. At the penalty phase, standards involving mitigating and aggravating factors are to be considered to help guide the sentencing authority.
 Before a defendant may be sentenced to death, the jury must find that an aggravating circumstance exists beyond a reasonable doubt. The goal of the bifurcated trial system is to ensure that the question of sentence is not considered until the determination of guilt has been made.
Alabama law deprives a capital defendant of the benefits of a bifurcated trial system. Alabama law specifically defines what types of crimes are capital offenses, and outlines specific aggravating circumstances for those crimes. At the guilt phase, the jury hears all the admissible evidence offered against the defendant to determine if the defendant is guilty of the capital offense, and must unanimously convict. However, because the capital offenses and the aggravating circumstances have substantial overlap, or in some instances, the aggravating circumstance is included in the offense itself, once a jury has found a defendant guilty of a capital crime, the defendant has automatically become death eligible. Although the law does not require that the aggravating circumstance be outlined in a separate statute, it is unconstitutional for death to be on the table for every defendant who has committed a crime. Under Alabama law, every capital defendant who has committed a crime will be eligible for the death penalty. Alabama’s truncated system, therefore, removes the protection against cruel and unusual punishments, guaranteed by the Eighth Amendment to be provided to all defendants.
2. Nonunanimous Jury Sentences Result in Unequal Application to Similarly Situated Defendants
The Alabama capital sentencing statute functions as a discretionary statute that permits the unequal application of the law to similarly situated defendants. Arbitrary and capricious application of the death penalty exists when there is unequal application of the death penalty to defendants who are similarly situated. “This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others.” Alabama law provides that “if the jury determines that one or more aggravating circumstances exist . . . it shall return a verdict of death.” Alabama law further does not require jury unanimity when sentencing a defendant to death, rather, “[t]he decision of the jury to recommend a sentence of death must be based on a vote of at least ten jurors.” Alabama’s capital sentencing statute, which permits a capital defendant to be sentenced to death on a nonunanimous jury, is a significant factor that permits arbitrary and capricious sentencing in violation of the Eighth Amendment. Despite this, the Alabama Supreme Court argues that because its law requires a jury to make the unanimous finding of an aggravating circumstance, its capital sentencing statute does not violate the Sixth Amendment or Supreme Court precedent. However, the lack of jury unanimity ensures that some defendants will be sentenced to death while others will not. Those defendants who have a jury where only nine jurors choose to implement the death penalty will be subjected to life imprisonment, whereas a defendant under similar circumstances, may be subjected to death if a tenth juror votes in favor of the death penalty. Regardless of each individual jurors’ reasons for not wanting to impose the death penalty, defendants under the non-unanimity requirement, will be subjected to two different and unequal outcomes in the punishment process. This result is the exact kind of arbitrary and capricious sentencing that Furman wanted to prevent. The Court has long held that “equal protection under the law is implicit in the Eighth Amendment’s ban on ‘cruel and unusual punishment’.” Alabama must therefore require jury unanimity prior to imposing a death sentence. Capital defendants at the penalty phase are still protected by the guarantees of the Eighth Amendment. The “significant function [of the cruel and unusual punishment clause in the Eighth Amendment], is to protect against the danger of arbitrary infliction [of punishments].” The Alabama statute therefore, by permitting nonunanimous jury verdicts, is unconstitutional and has violated the Constitution and well-established Supreme Court precedent.
Some scholars argue that judge-imposed death penalty sentences would promote consistency and alleviate arbitrary and capricious sentencing. However, there is no evidence that provides a judge will be more consistent or effective at imposing the death penalty. Additionally, a judge who is far-removed from the position of the defendant will not be in the best place to determine what an adequate sentence is for a defendant whom he cannot empathize with or understand.
Alabama’s Death Penalty Sentencing Statute Violates a Defendant’s Sixth Amendment Rights
Apprendi v. New Jersey, Ring v. Arizona, and Hurst v. Florida, state that the Sixth Amendment guarantees a defendant’s right to an impartial jury, and require that a jury engage in the fact-finding necessary to impose a death sentence. Alabama permits the imposition of the death penalty in violation of both of these Sixth Amendment requirements.
The double counting present in Alabama law prevents the jury from engaging in the fact-finding that is required to impose a death sentence. Double counting is when a particular capital offense necessarily includes one or more aggravating circumstances that is relevant in determining the sentence. Hurst makes clear that the Sixth Amendment protects a defendant’s right to an impartial jury. “An impartial jury consists of … jurors who will conscientiously apply the law and find the facts.” This right requires a death sentence to be on a jury’s verdict and not a judge’s fact-finding. When a jury recommends a death sentence to the court, that sentence must be based on sufficient facts as reflected in the jury verdict or admitted by the defendant. The Supreme Court in Hurst held that “[Under the Sixth Amendment] [a] jury’s mere recommendation is not enough [to satisfy the imposition of a death sentence].” In order to make an informed sentencing decision supported by the facts in a particular case, the jury must be informed of all elements or ingredients of the charged offense. The Sixth Amendment right to jury trial also “applies where a finding of fact both alters the legally prescribed [sentencing] range and does so in a way that aggravates the penalty.” Additionally, the U.S. Supreme Court, in Apprendi, made clear that “due process and associated jury protections extend . . . to the length of [a defendant’s sentence].”
In Bohannon, Bohannon argued that, because “the jury was not informed during the guilt phase that a finding of the existence of the aggravating circumstance . . . would make him eligible for the death penalty, the jury did not know the consequences of its decision.” The Alabama Supreme Court held Bohannon’s claim had no merit, stating that the jury was informed that:
If, however, the jury finds the defendant guilty of the offense of capital murder, the jury would be brought back for a second phase, or what we know as the penalty phase of this case. And, at that time, the jury may hear more evidence, will hear legal instructions and argument of counsel. The jury would then make a recommendation as to whether the appropriate punishment is death or life imprisonment without the possibility of parole.
The Alabama Supreme Court further stated that the jury was informed that if it returned a verdict of “guilty” of capital murder, Bohannon would be eligible for a sentence of death. Bohannon continued to reason that “the jury's finding of the existence of the aggravating circumstance during the guilt phase of his trial was not an ‘appropriate finding’ for use during the penalty phase” of his trial.
It was improper for the Alabama Court to presume that Bohannon’s conviction at the guilt phase sufficed to prevent a jury from engaging in the fact-finding that was required at the penalty phase of his trial. Due process protections that go to a defendant’s sentence may not be circumvented by “redefining the elements that constitute” a crime. Although the jury may have been aware that Bohannon would be eligible for death, it does not follow that he would certainly be sentenced to death. Supreme Court precedent requires consideration of mitigating factors and for those factors to be weighed against the aggravating factors at the penalty phase. “[F]or the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” There must be “an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Bohannon’s argument therefore has merit. The jury in his case could not conscientiously apply the law if they were not adequately informed of the law. The jury should have been informed of the consequences of its findings at the guilt phase and required to make the appropriate fact-findings at the penalty phase of his trial. Without this knowledge the jury could not engage in an individualized determination that was specific to Bohannon’s case and his sentencing determination. The jury was therefore prohibited from recommending a death sentence to the judge.
At the penalty phase of the trial, the pattern jury instructions require the jury to find beyond a reasonable doubt, that at least one or more aggravating circumstances exist. The instructions go on to state that “before you can consider recommending death, each and every one of you must be convinced beyond a reasonable doubt, based on the evidence, that at least one or more of the aggravating circumstances exist.”
The jury instructions therefore, provide that the aggravating circumstance is to be found unanimously, before death can be on the table. Under Alabama law, this determination is made at the guilt phase. Despite finding the aggravating circumstance at the guilt phase, the jury must engage in the necessary fact-finding at the penalty phase. To permit otherwise would be to violate a defendant’s right to due process. Supreme Court precedent requires the fact finder to aptly consider and give effect to the evidence against the defendant before deciding that he is eligible for the death penalty. Any evidence that “is of such a character that may serve as a basis for a sentence less than death” must be considered by the jury.
Alabama’s contention that the jury does the fact-finding necessary to impose a death sentence is merely a distraction from the fact that the jury does not do the fact-finding necessary to place the death penalty on the table.The law requires that a jury do all of the fact-finding necessary to impose a death sentence. Under current Alabama law, the death penalty is on the table before those considerations are made.  Therefore, Alabama’s system of double-counting affects the jury’s role as fact finder, and subsequently affects the defendants right to an impartial jury under the Sixth Amendment.
The Alabama Supreme Court upheld their sentencing scheme on the basis that its statute was different from Florida’s statute. As shown, this argument fails because in both instances the judge is making a sentencing decision on an inadequate or insufficient jury recommendation that has a propensity to violate the Constitution. Therefore, because the jury in Ex parte Bohannon was unable to do the requisite fact-finding necessary to impose a sentence of death, any subsequent recommendation made to the judge could not have been constitutional.
Evolving Standards of Decency Warrant a Unanimous Jury Verdict Before Imposition of the Death Penalty
In addition to being inconsistent with prior Supreme Court precedent, Alabama’s capital sentencing statute is unconstitutional as it fails to comport with evolving standards of decency.
The nonunanimous jury requirement under Alabama law violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The Eighth Amendment is a flexible standard evaluated under “evolving standards of decency.” “Evolving standards of decency” is not a static test, rather, it “mark[s] the progress of a maturing society” and allows the court to reevaluate whether a punishment that was once acceptable continues to comport with standards of human dignity. “While the state has the power to punish, the [Eighth] Amendment stands to assure that this power be exercised within the limits of civilized standards.” To evaluate evolving standards of decency, courts should be informed by objective factors, looking to legislative acts and sentencing juries, with “the clearest and most reliable objective evidence” being “legislation enacted by the country’s legislatures.” However, objective evidence does not “wholly determine the controversy,” the judgment of the court is “‘brought to bear’ by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.”
1. Legislative Acts
A majority of states are trending towards abolishing the death penalty, and of the states that have death penalty statutes, only two of those states permit the death penalty to be imposed by a non-unanimous jury verdict.
Currently, twenty-seven states have death penalty statutes and twenty-three states do not. Although more states currently have the death penalty than those that do not, “it is not so much the number of these states that is significant, but the consistency of the direction of change.” Of the states that currently have the death penalty, fifteen of those states currently have bills to abolish the death penalty, and the majority of those states and the federal government, “mandate an automatic life sentence if a jury cannot reach a unanimous sentencing verdict.”Additionally, in 2019, of the states that did have the death penalty, only “seven [of those] states accounted for all of the country’s executions.” The decline in the support for the death penalty is illustrated by the growing trend of state’s legislatures abolishing the death penalty and the sheer number of states considering legislative action to abolish the death penalty. Of all these states, Alabama and Florida are the only states that permit trial judges to impose death sentences based upon a jury’s non-unanimous sentencing recommendation.
The large number of states that mandate a mandatory life sentence upon a nonunanimous jury verdict is powerful evidence that our society and its leaders believe that a jury must be unanimous in its decision to sentence a defendant to death. The evidence is afforded even greater weight when it is noted that legislatures have addressed this issue and overwhelmingly voted in favor of having a unanimous jury before a death sentence may be imposed. The laws in Alabama and Florida therefore show a sharp dissent from the majority of states that have death penalty statutes. The legislature, through enacted legislation and pending legislation has shown that evolving standards of decency only permits imposition of a death sentence by a unanimous jury.
2. Sentencing Juries
When jurors vote for life imprisonment instead of the death penalty it is likely due to the residual doubt that remains after the prosecution has presented their case. In such instances, the acts of jurors present credible evidence that a death sentence should require a unanimous jury sentence to reduce the possibility of wrongful convictions.
Allowing the imposition of the death penalty on a nonunanimous jury verdict is “abhorrent to the conscience of the community.” Of the twenty-seven states that have the death penalty, twenty-six of those states mandate a life sentence if the jury does not unanimously convict. “[T]he near uniform judgment of the nation provides a useful guide in delimiting the line between those jury practices that are constitutionally permissible and those that are not.”When a juror votes for a life sentence instead of a death sentence, it is likely due to the residual doubt that still lingers in their mind. This residual doubt is due to weaker evidence and doubts about whether the government has proved their case beyond a reasonable doubt. This thought has proven to be true when compared to other death penalty cases; evidence has shown that executing defendants on nonunanimous jury verdicts increases the risk of wrongful convictions. Jury unanimity also produces more in depth jury deliberation; decreasing the likelihood of a wrongful conviction. In cases where a nonunanimous jury verdict is permitted, jurors take less time to reach a verdict and “dissenters” are singled out for coercion to join the majority before much deliberation takes place. Requiring jury unanimity at sentencing will align Alabama with the majority of states that have the death penalty, and with the conscience of the community; thereby alleviating concerns of wrongful convictions and encouraging desirable jury deliberation in capital cases.
3. Judgment of the Court
The evolving standards of decency analysis provide that the judgment of the court, shall come to bear. The judgment of the court asks whether there is reason to disagree with the reasoning of the legislature or of the citizenry. The Supreme Court held that in a noncapital case, the Sixth Amendment requires a unanimous jury to convict a defendant of a crime.
The Supreme Court has recognized that the Sixth Amendment right to a jury trial undeniably includes the right to a unanimous jury verdict. In Ramos v. Louisiana, the U.S. Supreme Court held that a conviction by a nonunanimous jury is an unconstitutional denial of the Sixth Amendment right to a jury trial. The Court, in ruling that the Sixth Amendment required a unanimous jury verdict, held that the Fourteenth Amendment applied that requirement to the states. The Court further held that juror unanimity emerged in fourteenth century England and was soon accepted as a vital right protected by the common law. “[N]o person could be found guilty of a serious crime unless ‘the truth of every accusation ... should ... be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen, and superior to all suspicion. A ‘verdict, taken from eleven, was no verdict’ at all.” Although the holding in Ramos v. Louisiana, applied to noncapital defendants at trial, the same should apply to capital defendants at sentencing. The Supreme Court recognizes that the requirements of due process are heightened at capital sentencing. The Court, however, has also recognized that due process, at capital sentencing, does not implicate all of the criminal trial procedural rights. Although a capital defendant enjoys Sixth Amendment protection at the trial phase, the Court has not addressed whether all Sixth Amendment rights, apply equally to capital defendants at the sentencing phase.
[T]he Court has never articulated a coherent theory for identifying which of the rights in the Sixth Amendment “panoply” apply at capital sentencing and which do not…the Court has never answered the basic textual question whether the Sixth Amendment--which applies “in all criminal prosecutions”--applies to capital sentencing at all. . . . Rather, through an approach best described as fragmentary, the Court has ruled some trial rights “in” and some rights “out” at capital sentencing.
The Court has held that the right to counsel applies at capital sentencing, but everything else has been left to lower courts to decide. This lack of finality has caused wide variation in capital sentencing amongst the states. Although the Supreme Court has given no official guidance on whether a unanimous jury verdict is required at capital sentencing, Ramos v. Louisiana makes clear that a criminal defendant can only be convicted of a serious crime if the jury is unanimous. The rights of a noncapital defendant at the trial phase should apply with equal force to a capital defendant at the sentencing. If the Constitution does not permit a defendant to be sentenced to prison on anything less than a unanimous jury, a defendant should not be permitted to be sentenced to death on anything less than a unanimous jury. To permit otherwise would be to take away a defendant’s constitutional right to “demand that his liberty not be taken away from him except by the . . . unanimous verdict of a jury of twelve persons.” There is no other situation in which the rights of a defendant are more at stake than where his life is on the line.
Because a defendant in a criminal case has a constitutional right to a unanimous jury verdict, a defendant in a capital case similarly has a constitutional right to a unanimous jury sentence, as his rights are just as much, if not more, at stake than the former. Therefore, the judgment of the court is aligned with that of the legislature and the citizenry. The evolving standards of decency, as evidenced by the judgment of the courts, require the death penalty only be imposed by a unanimous jury sentence.
A defendant in Alabama is more likely to face the death penalty than a defendant in any other state. The practical effect of this is two-fold. First, prosecutors in Alabama are permitted more discretion in deciding whether to seek the death penalty. Second, a capital case in Alabama forces criminal defense attorneys to think more critically about racial considerations than any other states’ defense attorneys when mounting their capital defense.
1. Prosecutorial Discretion
It is well known that prosecutors are given broad discretion in determining who to charge and what charges to bring in any given case. While prosecutorial discretion is ubiquitous in the United States, Alabama’s death penalty law gives more discretion to prosecutors than do the laws of other states. Consider the fact that most states have outlawed the death penalty. Consider also, that of those states that do permit the death penalty, a jury sentence must be unanimous. Then take Alabama, where the death penalty is permitted without requiring a unanimous jury sentence. Prosecutors must factor in the law and the violations of the defendant before bringing a charge. When compared to prosecutors in other states, a prosecutor in Alabama can conclude that they are more likely to succeed in bringing a death penalty case as they know a final jury decision need not be unanimous. This is a powerful driving force in seeking the death penalty.
This level of prosecutorial discretion is not without repercussions. “As of May 31, 2017, the [National Registry of Exonerations] reports that official misconduct was a contributing factor in 571 of 836 homicide exonerations 68.3%, very often in combination with perjury or false accusation, which also was a contributing factor in 68.3% of homicide exonerations.” A holistic approach to reforming Alabama’s death penalty law is therefore needed because the law permits prosecutors unbridled discretion that fails to comport with the Constitution and Supreme Court precedent, particularly as compared to the laws of other states. Where official misconduct has been the leading contributing cause of wrongful conviction in death penalty cases, this data is also notably relevant as it only accounts for the number of cases in which misconduct was revealed or found. Studies have shown that “official findings of misconduct represent only a fraction of the misconduct that actually occurs.” The actual percentage of official misconduct therefore is even higher, making it even more important in the era of progressive prosecution to reign in the discretion of prosecutors, particularly in the arena of capital sentencing. One prominent way to achieve this is for Alabama to reform their capital sentencing laws.
2. Racial Disparities Plague Capital Sentencing
Where criminal defense attorneys in other states can focus on mounting a strong defense based on the merits of the case and weaknesses in the prosecution’s argument, a criminal defense attorney in Alabama must also consider whether the prosecution has presented their case through a racial lens or evidenced significant racial undertones either in their case or in jury selection. While race-based considerations are always relevant in criminal cases, the significance of racial bias is more prevalent where a defendant’s life is at stake and where Alabama permits a defendant to be sentenced to death on a non-unanimous jury sentence. Historically, black defendants have been more likely to be sentenced to death than white defendants, and where a white victim is involved the conviction rate shoots up. Recent studies on race have also shown the prevalence of race-based bias in capital sentencing. In light of this well-known racial bias, particularly against black defendants, a criminal defense attorney in Alabama should take care to ensure to elicit any implicit or explicit bias potential jurors may harbor and exclude them during voir dire. Criminal defense attorneys should also be sure to elicit the same from any witnesses, or experts the prosecution may put on, and attempt to find and bring to the attention of the court any racial bias that may be present in the case. As previously mentioned, although race-based bias is not limited to Alabama, or capital cases, with the prevalence of prosecutorial discretion and racial bias, there is even more reason for Alabama to rectify its capital sentencing laws.
A defendant at capital sentencing has a constitutional right to a unanimous jury sentence. Supreme Court precedent, and the Sixth and Eighth Amendments demand no less. Alabama cannot uphold the constitutionality of its law while knowingly denying a defendant their constitutional rights. Currently, capital defendants in Alabama are at a far greater risk of having their constitutional rights violated than in any other state in the United States. Alabama must take the steps necessary to ensure that their laws comply with constitutional standards as articulated by Supreme Court precedent. Alabama must establish a bifurcated trial system that serves to protect defendants as was implicated in Gregg v. Georgia. If Alabama does not wish to eliminate the double-counting that places the death penalty on the table prior to the penalty phase, they must put in place safeguards to ensure that each capital defendant who has committed a crime is not subjected to the death penalty. Alabama must also require the jury to engage in adequate fact-finding, by informing jurors of all ingredients and elements that will affect a defendant’s sentence. Hurst, forbids the jury from recommending a death sentence without sufficient fact-finding. Finally, to avoid arbitrary and capricious application of the death penalty, and comport with the Eighth Amendment and evolving standards of decency, Alabama must require jury unanimity at the penalty phase before a death sentence can be imposed. Making these changes will permit Alabama to comport with Supreme Court precedent and the Constitution. The changes will also help reduce the onslaught of prosecutorial misconduct in capital cases, particularly where racial bias continues to be a pre-eminent problem.
 Jeffrey Wermer, The Jury Requirement in Death Sentencing After Hurst v. Florida, 94 Denv. L. Rev. 385, 407 (2017) (discussing that after Hurst, the Alabama Supreme Court found no problems with its capital sentencing statute); see also, id. n.191 (discussing how the Supreme Courts of the states of both Florida and Alabama distinguished their statutes from the statutes that Ring v. Ariz. applied to).  “[I]t is hard to discern a constitutional difference between procedural rights at noncapital sentencing and the ‘heightened’ protections the Court accords to capital sentencing. Instead, the Court has been quick to note that due process, even at capital sentencing, does not ‘implicate the entire panoply of criminal trial procedural rights.’” John G. Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 Colum. L. Rev. 1967, 1969 (2005) (quoting Gardner v. Florida, 430 U.S. 349, 358 n.9 (1977)).  Woodson v. North Carolina, 428 U.S. 280, 305 (1976).  See discussion infra Part II (summarizing Supreme Court precedent on what a constitutionally valid death penalty statute will entail).  Ex parte Bohannon, 222 So. 3d 525, 532 (Ala. 2016).  See discussion infra Parts III-A & III-B.  Ex parte Bohannon, 222 So. 3d 525 (Ala. 2016).  Furman v. Georgia, 408 U.S. 238 (1972).  Gregg v. Georgia, 428 U.S. 153 (1976).  Apprendi v. New Jersey, 530 U.S. 466 (2000).  Ring v. Arizona, 536 U.S. 584 (2002).  Hurst v. Florida, 577 U.S. 92 (2016).  Ramos v. Louisiana, 140 S. Ct. 1390 (2020).  Ex parte Bohannon, 222 So. 3d at 527.  Bohannon v. State, 222 So. 3d 457, 469 (Ala. Crim. App. 2015).  Id.  Ex parte Bohannon, 222 So. 3d at 527.  Bohannon v. State, 222 So. 3d at 469.  Ex parte Bohannon, 222 So. 3d at 527.  Id.  Id.  Id.  Bohannon v. State, 222 So. 3d at 470.  Id.  Id.  Ex parte Bohannon, 222 So. 3d at 527.  Id.  Id.  See discussion infra Section III-A(1) for explanation of the penalty phase.  Ex parte Bohannon, 222 So. 3d at 527.  Id.  Id.  The court reviewed the lower courts holding on four grounds, however this paper will only discuss two.  577 U.S. 92 (2016).  Ex parte Bohannon, 222 So. 3d 525, 527 (2016).  Id.  Id. at 532.  Id. at 533.  Id. at 534.  See discussion infra Section III-B  408 U.S. 238 (1972).  Furman v. Georgia 408 U.S. 238 (1972).  Furman, 408 U.S. 238, 249-50 (1972) (Marshall, J., concurring).  Paul Wallace, Capital Punishment: A Legal Overview Including Supreme Court Decisions of the 2004-2005 Term, at 2-3 (The Supreme Court reviewed the capital sentencing laws of five additional states: Georgia, Florida, Texas, Louisiana, and North Carolina).  Gregg v. Georgia, 428 U.S. 153 (1976).  Id.  Furman v. Georgia, 408 U.S. 238 (1972).  428 U.S. 153 at 187 (1972).  Id. at 182.  Id. at 173 (“The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”).  Gregg v. Georgia, 428 U.S. at 173.  N.J. Stat. Ann. § 2C:29-4(a) (West 1995); N.J. Stat. Ann. § 2C:43-6(a)(2); N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 1999-2000); N.J. Stat. Ann. § 2C:43-7(a)(3).  Apprendi v. New Jersey, 530 U.S. 466, 466 (2000).  Id.  Id. at 495.  Id. at 481.  Id. at 484 (quoting Scalia, J., dissenting in Almendarez-Torres, 523 U.S., at 251).  Ring v. Arizona, 536 U.S. 584 (2002).  Id. at 595.  Id. at 597.  Id. at 585.  Id.  Id. 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.”) .  Hurst v. Florida, 577 U.S. 92 (2016).  Id. at 94.  Id. at 95-96.  Id. at 96.  Id. at 94.  Apprendi, 530 U.S. at 481.  Id. at 490.  Id. at 482-83.  Hurst v. Florida, 577 U.S. 92, 98-99 (2016).  Ramos v. Louisiana, 140 S. Ct. 1390 (2020).  Id. at 1391.  Furman, 408 U.S. 238, 294-95 (1972).  Apprendi, 530 U.S. at 466; Ring, 536 U.S. at 597; Hurst, 577 U.S. at 95-96.  Apprendi, 530 U.S. at 490; Hurst, 577 U.S. at 94.  Gregg v. Georgia, 428 U.S. 153, 155 (1976).  Ring, 536 U.S. 584, 589 (2002).  Note that in noncapital trials death is not on the table but a conviction must be nonetheless be unanimous.  Furman, 408 U.S. 238, 249 (1972) (holding that the imposition of the death sentence followed discriminatory patterns and was unconstitutional as applied).  Id. at 250.  Id.  Furman, 408 U.S. at 248-49 (Douglass, J., concurring) (holding that “the basic theme of equal protection is implicit in ‘cruel and unusual’ punishments. A penalty . . . should be considered ‘unusually’ imposed if it is administered arbitrarily or discriminatorily.” “[I]t is unfair to inflict unequal penalties on equally guilty parties, or on any innocent parties, regardless of what the penalty is.”).  Gregg v. Georgia 428 U.S. at 155.  Id. at 195 (holding that the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information).  Id. at 163.  Id.  Id. at 189 (“We have long recognized that for the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.”).  Id. at 189 (“We have long recognized that for the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.”).  Ex parte Bohannon, 222 So. 3d at 529; Ring, 536 U.S. at 585.  Gregg v. Georgia, 428 U.S. at 190-91.  Ala. Code § 13A-5-40.  Ala. Code § 13A-5-49.  Ala. Code § 13A-5-43.  Wermer, supra note 1, at 409 (discussing how a conviction of a capital crime in Alabama makes a defendant eligible for death).  Tuilaepa v. California 512 U.S. 967, 972 (1994) (holding that “[t]he aggravating circumstance may be contained in the definition of the crime or in a separate sentencing factor (or in both).”).  “If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm.” Id.  Furman, 408 U.S. at 274 (Brennan, J., concurring).  Id.  Ala. Code § 13A-5-46(e)(3).  Ala. Code § 13A-5-46(f).  “Cruel and unusual punishments [shall not be] inflicted.” U.S. Const. amend. VIII.  Ex parte Bohannon, 222 So. 3d at 532.  See Mark J. MacDougall & Karen D. Williams, The Federal Death Penalty Scheme is not a Model for State Reform of Capital Punishment Laws, 67 Am. U. L. Rev. 1647, 1660-61 (2018) (discussing concerns of continuing disparate applications of capital punishment nationwide). See also, Chenyu Wang, Rearguing Jury Unanimity: An Alternative, 16 Lewis & Clark L. Rev. 389, 394-95 (2012) (discussing how jury unanimity produces more accurate results).  See supra note 41-43.  Furman, 408 U.S. at 256-57 (Douglas, J., concurring).  Furman, 408 U.S. at 277 (Brennan, J., concurring).  Proffitt v. Florida, 42 U.S. 242, 252 (1976) (“judicial sentencing should lead 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.”).  John G. Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 Colum. L. Rev. 1967, 2024 (2005) “there is no evidence that judges are any more consistent than juries in distinguishing “appropriate” cases for capital punishment. Individual judges are no less likely than individual jurors to be influenced by their own experiences, fears, personal morality, religion, politics, or any of the many circumstances that may affect sentencing judgments.” See also, id. n.331-32.  Gregg, 428 U.S. at 190 (stating that jury sentencing has been considered desirable in capital cases to “maintain a link between community values and the penal system.”).  Apprendi v. New Jersey, 530 U.S. 466, 476 (2000); Ring v. Arizona, 536 U.S. 584, 597 n.3 (2002); Hurst v. Florida, 577 U.S. 92, 97 (2016).  Apprendi, 530 U.S. at 497; Ring, 536 U.S. at 589; Hurst, 577 U.S. at 94.  Ex parte Bohannon, 222 So. 3d 525, 529 (Ala. 2016).  Hurst, 577 U.S. at 97.  Lockhart v. McCree, 476 U.S. 162, 163 (1986).  Hurst, 577 U.S. at 94.  Id. at 100.  Id. at 94.  Alleyne v. United States, 570 U.S. 99, 107-08 (2013) (holding that any fact that produces a new penalty or increases a penalty for a criminal defendant beyond a prescribed sentencing range constitutes an ingredient or element of the offense and any such ingredient is a fact that must be found by the jury).  Id. at 113.  Apprendi v. New Jersey, 530 U.S. 466, 484 (2000).  Ex parte Bohannon, 222 So. 3d 529, 533-34 (Ala. 2016).  Id. at 534.  Id.  Id. at 533.  See Apprendi, 530 U.S. at 484 (quoting Mullaney v. Wilbur, 421 U.S. 684 (1881)) (invalidating a Maine statute that presumed that the defendant who acted with intent to kill, likewise possessed the “malice aforethought” that was necessary to increase his sentence); see also Ring v. Arizona, 536 U.S. 584, 589 (2002) (requiring fact-finding to be done by the jury).  Apprendi, 530 U.S. at 484-85 (“due process and associated jury protections extend, to some degree, ‘to determinations that [go] not to a defendant's guilt or innocence, but simply to the length of his sentence.’”) (citing In re Winship, 397 U.S. 358, 364 (1970)).  Jeffrey Wermer, The Jury Requirement in Death Sentencing After Hurst v. Florida, 94 Denv. L. Rev. 385, 404 (2017).  Gregg v. Georgia, 428 U.S. 153, 189 (1976) (quoting Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 (1937).  Tuilaepa, 512 U.S. 967, 972 (1994) (“That requirement is met when the jury can consider relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime.”).  Moody v. Thomas, 89 F. Supp. 3d 1167, 1237 (N.D. Ala. 2015).  Id. (holding that these instructions “were materially identical to those set out in the Proposed Pattern Jury Instructions for Use in the Sentence Stage of Capital Cases Tried Under Act No. 81-178”).  American Bar Ass’n, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Alabama Death Penalty Assessment Report (June 2006), https://www.prisonpolicy.org/scans/aba/AL_report_%20authcheckdam.pdf.  See Tennard v. Dretke, 542 U.S. 274, 275 (2004) (holding that “Eighth Amendment requires that the jury be able to consider and give effect to a capital defendant's mitigating evidence”).  Id. at 287.  Ex parte Bohannon, 222 So. 3d 525, 528 (Ala. 2016).  Hurst v. Florida, 577 U.S. 92, 94 (2015).  See e.g., Ex parte Bohannon, 222 So. 3d at 529.  An impartial jury requires a jury to impartially apply the law and the facts. See supra note 112-15. Without a jury’s proper fact-finding at the penalty phase, the most a defendant may be sentenced to is life imprisonment. Jeffrey Abramson, Death-is-Different Jurisprudence and the Role of the Capital Jury, 2 Ohio St. J. Crim. L. 117, 151-152 (2004).  Ex parte Bohannon, 222 So. 3d at 532 (distinguishing Alabama’s statute from Florida’s because Alabama law requires the jury to make “the critical finding necessary to impose the death penalty,” whereas the Florida statute permitted a judge to do the fact-finding).  “Cruel and unusual punishments [shall not be] inflicted.” U.S. Const. amend. VIII.  Gregg v. Georgia, 428 U.S. 153, 154 (1976).  Weems v. United States, 217 U.S. 349, 378 (1910); Trop v. Dulles, 356 U.S. 86, 100-01 (1958).  Trop, 356 U.S. at 100.  Thompson v. Oklahoma, 487 U.S. 815, 821-22 Fn. 7 (1988) (explaining how “Our capital punishment jurisprudence has consistently recognized that contemporary standards, as reflected by the actions of legislatures and juries, provide an important measure of whether the death penalty is cruel and unusual.”).  Atkins v. Virginia, 536 U.S. 304, 312 (2002).  Id. at 312-13 (citing Coker v. Georgia, 433 U.S. 584, 593-596 (1977)).  See Death Penalty Information Center, Florida Supreme Court Retracts Unanimity Requirement, Reinstates Non-Unanimous Death Sentence (last visited Jan. 24, 2020), https://deathpenaltyinfo.org/news/florida-supreme-court-retracts-jury-unanimity-requirement-reinstates-non-unanimous-death-sentence (citing the Supreme Court decision in State v. Poole where the court overruled prior precedent and held that a unanimous jury is not required to sentence a defendant to death). Florida now joins Alabama in permitting a death sentence upon a nonunanimous jury verdict at the penalty phase.  Death Penalty Information Center, State by State, https://deathpenaltyinfo.org/state-and-federal-info/state-by-state (last visited Dec. 17, 2020).  Atkins, 536 U.S. at 304.  Death Penalty Information Center, Recent Legislative Activity, https://deathpenaltyinfo.org/facts-and-research/recent-legislative-activity (last visited Dec. 15, 2020).  Death Penalty Information Center, Life Verdict or Hung Jury? (Jan. 17, 2018), https://deathpenaltyinfo.org/stories/life-verdict-or-hung-jury-how-states-treat-non-unanimous-jury-votes-in-capital-sentencing-proceedings.  Death Penalty Information Center, New Resources: Capital Punishment and the State of Criminal Justice 2020 (Aug. 12, 2020), https://deathpenaltyinfo.org/news/new-resources-capital-punishment-and-the-state-of-criminal-justice-2020.  See e.g., State by State supra note 150; Recent Legislative Activity supra note 152.  Death Penalty Information Center, Florida Supreme Court Retracts Unanimity Requirement, Reinstates Non-Unanimous Death Sentence (last visited Jan. 24, 2020), https://deathpenaltyinfo.org/news/florida-supreme-court-retracts-jury-unanimity-requirement-reinstates-non-unanimous-death-sentence; Ala. Code § 13A-5-46(f).  Atkins, 536 U.S. at 315-16 (holding that the large number of States prohibiting the execution of mentally retarded persons and the absence of States passing legislation reinstating the power to conduct such executions provides powerful evidence that society views mentally retarded offenders as categorically less culpable than the average criminal.).  Id. (holding that evidence carries even greater force when it is noted that the legislatures that have addressed the issue have voted overwhelmingly in favor of the prohibition).  See supra note 154-58 and accompanying text.  Thompson, 487 U.S. at 832 (stating that the imposition of the death penalty on a 15-year-old is abhorrent to the conscience of the community because “[the] whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions.”).  See supra note 149 (removing Florida from that count makes the number twenty-six).  Burch v. Louisiana, 441 U.S. 130, 138 (1979).  Death Penalty Information Center, Wrongful Capital Convictions May be More Likely in Cases of Judicial Override, Non-Unanimous Death Verdicts (Sep. 09, 2016), https://deathpenaltyinfo.org/news/wrongful-capital-convictions-may-be-more-likely-in-cases-of-judicial-override-non-unanimous-death-verdicts.  Patrick Mulvaney & Katherine Chamblee, Innocence and Override, 126 Yale L.J. Forum 118, 119-20 (2016).  See supra note 154. For an interesting case study see the case of Nathaniel Woods in Woods v. Alabama. Nathaniel Woods was sentenced to death by an Alabama court despite two jurors voting to spare his life, and numerous questions about his culpability. Rick Rojas, N.Y. Times (Mar. 5, 2020), https://www.nytimes.com/2020/03/05/us/nathaniel-woods-alabama.html%20https://eji.org/news/nathaniel-woods-alabama-execution/.  Wang, supra note 105 at 395-96 (discussing how jury unanimity produces more accurate results).  Id. at 395 (citing Emil J. Bove III, Note, Preserving the Value of Unanimous Criminal Jury Verdicts in Anti-Deadlock Instructions, 97 Geo. L.J. 251, 267 (2008)).  Atkins, 536 U.S. at 312-13.  Id. at 304.  Ramos, 140 S. Ct. 1390.  Id. at 1391.  Id. at 1390.  Id. at 1396.  Woodson, 428 U.S. at 305 (holding that there is a greater need for reliability in the determination that death is the appropriate punishment in a specific case).  Gardner v. Florida, 430 U.S. 349, 358 n.9 (1977).  Douglass, supra note 110 at 1969. Confronting death: As our tour through the world of capital sentencing demonstrates, there is no single, comprehensive answer as to whether the Sixth Amendment governs capital sentencing.  Id. at 1969-70.  Id.  Id.  Ramos, 140 S. Ct. at 1395.  Id. at 1396-97 (quoting Thompson v. Utah, 170 U.S. 343, 351 (1898).  Id.; See also Thompson v. Utah, 170 U.S. 343, 351 (1859); Ring at 605-606 (“[T]here is no doubt that ‘[d]eath is different.”; Maynard v. Cartwright, 486 U.S. 356, 362 (1988) (“Since Furman, our cases have insisted that the channeling and limiting of the sentencer’s discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action.”)  Death Penalty Information Center, Death Sentencing Rates by State, https://deathpenaltyinfo.org/facts-and-research/sentencing-data/death-sentencing-rates (last visited July 22, 2021).  “Each decision to seek the death penalty is made by a single county district attorney, who is answerable only to the voters of that county.” Death Penalty Information Center, The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases at Enormous Costs to All (Oct. 01, 2013), https://deathpenaltyinfo.org/facts-and-research/dpic-reports/in-depth/the-2-death-penalty-how-a-minority-of-counties-produce-most-death-cases-at-enormous-costs-to-all.  See supra note 149-57.  Id.  Id.  Death Penalty Information Center, DPIC ANALYSIS: CAUSES OF WRONGFUL CONVICTIONS (last visited July 27, 2021), https://deathpenaltyinfo.org/stories/dpic-analysis-causes-of-wrongful-convictions.  Death Penalty Information Center, The Most Common Causes of Wrongful Death Penalty Convictions: Official Misconduct and Perjury or False Accusation (May 31, 2017), https://deathpenaltyinfo.org/stories/dpic-analysis-causes-of-wrongful-convictions (showing official misconduct being the leading cause of death-row exonerations at 82.4%).  Emma Zack, Why Holding Prosecutors Accountable is so Difficult, Innocence Project (Apr. 23, 2020), https://innocenceproject.org/why-holding-prosecutors-accountable-is-so-difficult/.  “The death penalty has long come under scrutiny for being racially biased. Earlier in the twentieth century when it was applied for the crime of rape, 89 percent of the executions involved black defendants, most for the rape of a white woman. In the modern era, when executions have been carried out exclusively for murder, 75 percent of the cases involve the murder of white victims, even though blacks and whites are about equally likely to be victims of murder.” Death Penalty Information Center, Race , https://deathpenaltyinfo.org/policy-issues/race (last visited June 28, 2021).  Id. See also Death Penalty Information Center, Race of Victims in Death Penalty Cases (citing that more than 75% of the murder victims in cases resulting in an execution were white, even though nationally only 50% of murder victims are generally white), https://documents.deathpenaltyinfo.org/pdf/FactSheet.pdf (last visited June 28, 2021).  Death Penalty Information Center, Recent Studies on Race (citing that “Jurors in Washington state are three times more likely to recommend a death sentence for a black defendant than for a white defendant in a similar case. (Prof. K. Beckett, Univ. of Wash. , 2014).” “In Louisiana, the odds of a death sentence were 97% higher for those whose victim was white than for those whose victim was black. (Pierce & Radelet, La. L. Rev. 2011).” “A study in California found that those convicted of killing whites were more than 3 times as likely to be sentenced to death as those convicted of killing blacks and more than 4 times more likely as those convicted of killing Latinos. (Pierce & Radelet, Santa Clara Law Review, 2005).” https://documents.deathpenaltyinfo.org/pdf/FactSheet.pdf (last visited June 28, 2021).  See supra note 198-200. See also Furman, 408 U.S. at 255.  See discussion supra Part IV-3.  See discussion supra Part III-A.  See discussion supra Part III-B.  See supra note 119-24.  See discussion supra Part IV.