Can only a jury impose the death penalty?

Reading a Supreme Court ruling of last January in a widely expansive way, a divided Delaware Supreme Court on Tuesday struck down that state’s death penalty law. It ruled that the Supreme Court’s most recent ruling on death sentencing requires that the ultimate choice of life or death can only be made by a jury, not a judge.

The state court majority based the decision on the Sixth Amendment right to a jury in criminal trials, not on the Eighth Amendment ban on “cruel and unusual punishment.” The state court did not rule that the state could not have a death penalty law, leaving it up to the state legislature to try to pass a valid one.

The five-member state court’s ruling, made in four separate opinions that totaled 148 pages, could set the stage for a deep new inquiry by the Supreme Court into death penalty procedures if state officials decide to attempt an appeal there and persuade the Justices to hear it. The Supreme Court has never ruled specifically that the final life-or-death choice in capital punishment cases must be made by the jury. (UPDATE: Delaware’s governor, Jack Markell, praised the ruling, and voiced the hope that there would never be another execution in the state. The state legislature has been divided on the issue.)

The ruling does fit into a recent effort across the country to narrow, and maybe even abolish, executions in the U.S., making Delaware the nineteenth state (along with Washington, D.C.) to ban or rule against the death penalty. Much of that effort, however, has centered on the Eighth Amendment, not the Sixth.

But the ruling may turn out to be more significant for the way it interpreted the Justices’ ruling last January striking down Florida’s death sentencing law (in the case of Hurst v. Florida) — a case in which only Justice Samuel A. Alito, Jr., dissented. (The late Justice Antonin Scalia, in the majority in the case, died a month later.)

The crux of the debate between the majority and dissenting judges on the Delaware Supreme Court was on this specific issue: did the Supreme Court lay down the rule that the final choice of life or death for a person convicted of murder must be made only by the jury, or was the Hurst decision limited to enhancing the jury’s role in deciding who might be eligible for a death sentence, leaving the final choice to a judge?

The main opinion, a 91-page survey of the history of the death penalty since the Constitution’s founding more than two centuries ago, was written by the state’s Chief Justice, Leo E. Strine, Jr. It was joined in full by Justices Randy J. Holland and Collins J. Seitz, Jr. Justice Holland wrote a separate opinion for those three, coming to the same conclusion on somewhat narrower reasoning.

Refusing to rely on a lengthy list of Supreme Court precedents on the death penalty, many of them based on the Eighth Amendment, the chief justice argued that the focus should be a fresh look directly at the Sixth Amendment and the historic role of the jury as the conscience of the community.

In trying through a wide array of decisions since 1972 to build a constitutional edifice that treated death as a unique form of punishment, the chief judge wrote, the Supreme Court had gone too far toward diminishing the jury trial right for those on trial for the most serious crimes. The problem, Strine wrote, began with the 1972 decision in Furman v. Georgia, which for the first time relied on the Eighth Amendment to declare the death penalty unconstitutional. (After 1976, the penalty was revived in many states in new laws. Several Justices in recent years have questioned whether the death penalty is a violation of the Eighth Amendment; Justice Stephen G. Breyer is the latest to suggest that the Court take on that issue.0

While conceding that the Supreme Court’s decision in the Hurst case could be interpreted more narrowly than he did, Strine said the Court had turned to the Sixth Amendment in that case and had gone back to the basics of the jury’s role.

The flaw in Florida’s capital punishment scheme, the chief justice wrote, was not that it shut the jury out of deciding who would be potentially eligible for a death sentence, but that it allowed the judge to make the final decision about whether death should be the penalty actually imposed. The Hurst opinion, the opinion said, should properly be read as dealing with the latter Sixth Amendment defect.

“I conclude,” the main opinion said, “that Hurst is best read as restoring something basic that had been lost.” To do otherwise, the chief justice wrote, would be to ignore “nearly 200 years of our nation’s customs and traditions,” giving juries the central role in making the most awesome choice that is to be made in law: whether a human being is to live or die.

The ruling came in a murder case titled Rauf v. State of Delaware. Because of the Supreme Court’s ruling in the Hurst case, and because some of Delaware’s death penalty procedure was like that in Florida, a lower state court judge had sent up to the state’s highest court five separate questions about the Delaware law.

Here is the way the three-justice majority answered them:

First, does the Sixth Amendment jury trial right allow a judge to decide whether a death sentence could be justified in a given case, based on the judge’s finding of “aggravating circumstances”? The answer is No; that is for the jury, and Delaware’s law lets the judge perform that task

Second, if that is a task for the jury, must it be unanimous and must it make its choice on all factual issues “beyond a reasonable doubt”? The answer is Yes. Delaware does not require a unanimous jury on that point.

Third, does the Sixth Amendment require the jury, not the judge, to balance negative and positive factual findings — the ultimate balance that could lead to a death sentence? The answer is Yes, and Delaware’s law differs on that point.

Fourth, in that ultimate weighing function, for or against life or death, must that choice be unanimous and be found “beyond a reasonable doubt”? The answer is Yes — the same as the answer to Question 2.

Fifth, can any part of the Delaware capital punishment law be enforced if any part of it violates the Sixth Amendment, with the jury in future cases told by the judge to ignore the flawed parts? The answer is No, because the Delaware law is so intertwined in assigning the roles of jury and judge that there is no way to separate out the invalid parts. If the state legislature moves to reinstate capital punishment, that is its choice, the court said.

Chief Justice Strine’s opinion dropped a hint that the state court did expect its ruling to be appealed. In discussing the possible revival of the death penalty by the state legislature, he wrote that the lawmakers would have to take account of this new decision “if our ruling ultimately becomes final.”

Justice Karen L. Valihura filed a separate opinion partly joining the majority results and partly dissenting. She agreed that the judge in a death penalty case could not find “aggravating circumstances” because that is for the jury. She agreed that the jury had to be unanimous, but only because she said the state constitution required that, but she did agree that the jury’s findings on that weighing issue had to be unanimous under the Sixth Amendment.

She disagreed that the Sixth Amendment required that the ultimate choice of life or death had to be made by the jury. She based that argument on her view that the Hurst decision did not mandate that life or death be a jury issue. She agreed that the law as a whole had to be struck down because of her agreement with the majority about the judge’s role in the “aggravating circumstances” issue and the inability to separate that out.

The only member of the state court to dissent on all points was Justice James T. Vaughn, Jr. He answered all of the questions in a way to support his view that the Delaware capital punishment law was in no way invalid under the Sixth Amendment.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this post first appeared.