Loyola of Los Angeles Law Review Loyola of Los Angeles Law Review
Volume 55 Number 4 Article 4
Fall 10-19-2022
RamosRamos
, Race, and Juror Unanimity in Capital Sentencing , Race, and Juror Unanimity in Capital Sentencing
Jennifer Eisenberg
Follow this and additional works at: https://digitalcommons.lmu.edu/llr
Recommended Citation Recommended Citation
Jennifer Eisenberg,
Ramos, Race, and Juror Unanimity in Capital Sentencing
, 55 Loy. L.A. L. Rev. 1085
(2022).
Available at: https://digitalcommons.lmu.edu/llr/vol55/iss4/4
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1085
RAMOS, RACE, AND JUROR UNANIMITY IN
CAPITAL SENTENCING
Jennifer Eisenberg
TABLE OF CONTENTS
INTRODUCTION .............................................................................. 1086
I. OVERRULING APODACA AND NON-UNANIMITY IN
SENTENCING ........................................................................ 1088
A. Arguments for and Against Unanimity ........................ 1090
B. The Ramos Ruling ........................................................ 1092
II. REVIEWING CAPITAL SENTENCING THROUGH THE UNANIMITY
LENS .................................................................................... 1093
A. The Jury’s Role in Capital Sentencing:
Ring and Hurst ............................................................. 1095
B. Non-unanimity Bleeds into Capital Sentencing ............ 1098
C. Supreme Court Capital Sentencing Jurisprudence
Requires Unanimity ..................................................... 1099
III. UNANIMITY AT ISSUE IN CALIFORNIA LAW ............................. 1100
IV. CONCLUSION .......................................................................... 1104
J.D. Candidate, May 2022, LMU Loyola Law School; B.S. Marketing, Fordham Univer-
sity. Thank you to the staff and editors of the Loyola of Los Angeles Law Review for their hard
work getting my Note published.
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1086 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 55:1085
INTRODUCTION
Supreme Court jurisprudence implies that juror unanimity should
be required to sentence a capital defendant to death. In the 1972 case,
Apodaca v. Oregon,
1
the Supreme Court held that the Sixth Amend-
ment right to a unanimous jury verdict was not incorporated against
the states.
2
In Ramos v. Louisiana,
3
an April 2020 opinion, the Su-
preme Court reversed Apodaca, clarified that juror unanimity for fel-
ony convictions falls within the Sixth Amendment right to a jury trial,
and reiterated that the Sixth Amendment is not incorporated in a “wa-
tered-down” version against the states.
4
A focus of the Ramos ruling
was the racially motivated origins of the non-unanimity schemes in
Louisiana and Oregon—the only two states that continued the practice
until present day.
5
Louisiana’s non-unanimity scheme emerged as a
way to undermine Black juror service during an 1898 Louisiana con-
stitutional convention to establish white supremacy,
6
and Oregon’s
non-unanimity scheme emerged to dilute the influence of racial and
religious minorities in jury service while the Ku Klux Klan was prom-
inent in the state.
7
In Justice Sotomayor’s Ramos concurrence, she
1. 406 U.S. 404 (1972).
2. See id. at 406.
3. 140 S. Ct. 1390 (2020).
4. Id. at 1397–98, 1407.
5. Oregon convicted people based on majority verdicts up until the 2020 Ramos ruling. Lou-
isiana amended its state constitution to bar the non-unanimous jury scheme for convictions in 2018.
S.B. 243, 2018 Reg. Sess. (La. 2018) (requiring a unanimous jury verdict for any felony conviction
after January 1, 2019). As of 2019, Louisiana has the highest incarceration rate of any state at 680
incarcerated out of every 100,000 people. Oregon’s incarceration rate is 353 out of every 100,000
people—less than many states but still ranking in the top half of states with the highest incarceration
rates. State-by-State Data, THE SENTENCING PROJECT, https://www.sentencingproject.org/the-
facts/#map [https://perma.cc/XN79-3T9S].
6. Ramos, 140 S. Ct. at 1394, 1401 (citing OFFICIAL JOURNAL OF THE PROCEEDINGS OF THE
CONSTITUTIONAL CONVENTION OF THE STATE OF LOUISIANA 374 (H. J. Hearsey ed., 1898)).
7. Id. (citing State v. Williams, No. 15CR58698, 2016 WL 11695154, at *16 (Or. Cir. Ct.
Dec. 15, 2016)); see also Timothy Williams, In One State, a Holdout Juror Can’t Block a Convic-
tion. That May Not Last., N.Y. TIMES (Feb. 23, 2020), https://www.nytimes.com/2020/02/23/us
/oregon-court-case-verdicts.html (explaining the origins of the Oregon law and its connection to
the rise of the Ku Klux Klan in the 1930s); Angela A. Allen-Bell, Opinion, These Jury Systems Are
Vestiges of White Supremacy, WASH. POST (Sept. 22, 2017), https://www.washingtonpost.com/opi
nions/these-jury-systems-are-vestiges-of-white-supremacy/2017/09/22/d7f1897a-9f13-11e7-9c8d
-cf053ff30921_story.html [https://perma.cc/GQ96-E46A] (“Anti-immigrant and anti-Semitic sen-
timents peaked in 1933, when a jury failed to convict a Jewish man in the murder [of] a Protestant
man, instead handing down a verdict of manslaughter. The Morning Oregonian blamed the verdict
on ‘the vast immigration into America from southern and eastern Europe, of people untrained in
the jury system.’ It then accused immigrants of making ‘the jury of twelve increasingly unwieldy
and unsatisfactory.’ The following year, Oregon passed a ballot measure to allow felony convic-
tions based on a less-than-unanimous vote.”).
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acknowledged that many laws and policies in this country have had a
history of racial animus and that the Apodaca ruling—which sup-
ported laws that were “tethered” to racial bias—was rightfully rele-
gated to the “dustbin of history.”
8
Yet, despite the Ramos ruling, juror unanimity remains an issue
in the realm of capital sentencing, which has a history of racial animus
like non-unanimity during the guilt phase.
9
Two Supreme Court cases,
Ring v. Arizona
10
and Hurst v. Florida,
11
have explained that the Sixth
Amendment requires that a jury, rather than a judge alone, weigh on
capital sentencing.
12
However, neither case addressed whether state
courts must require that a jury unanimously vote to sentence someone
to death.
13
Because neither Ring nor Hurst ruled on unanimity in state
capital sentencing, and because the Ramos ruling was limited to con-
victions during the guilt phase of trials, the Supreme Court still needs
to hear the issue of whether, in state court, a unanimous jury is required
to sentence someone to death. Today, Alabama and Florida, both of
which rank in the top five states with the most prisoners on death
row,
14
do not require that a jury unanimously vote to sentence a person
to death
15
—yet, the precedent set forth in Ring, Hurst, and Ramos,
implies that the Sixth Amendment guarantees a unanimous jury ver-
dict during capital sentencing.
The Supreme Court also needs to hear the issue of whether a jury
must unanimously vote on every aggravating circumstance that
8. Ramos, 140 S. Ct. at 1410 (Sotomayor, J., concurring).
9. See, e.g., Raul G. Cantero & Robert M. Kline, Death is Different: The Need for Jury Una-
nimity in Death Penalty Cases, 22 ST. THOMAS L. REV. 4, 25–26 (2009).
10. 536 U.S. 584 (2002).
11. 577 U.S. 92 (2016).
12. Ring, 536 U.S. at 585; Hurst, 577 U.S. at 94.
13. Federal capital sentencing requires that a jury unanimously recommend a death sentence
and that a jury unanimously find any one aggravating factor. 18 U.S.C. § 3593(d), (e) (2018); see
also Cantero & Kline, supra note 9, at 11 & n. 56–58 (2009) (citing 18 U.S.C. § 3593) (writing
about the issue of unanimity in capital sentencing before Hurst II).
14. As of April 1, 2021, the total number of prisoners on death row in the United States is
2,504. Florida ranked second for the most prisoners on death row in the nation with 343 condemned
prisoners (38 percent are Black) and Alabama ranked fourth with 170 condemned prisoners (50
percent are Black). California ranked first with 704 condemned prisoners (36 percent are Black).
DEBORAH FINS, NAAP LEGAL DEF. & EDUC. FUND, INC., DEATH ROW U.S.A. SPRING 2021: A
QUARTERLY REPORT 1, 37-38 (2021), https://www.naacpldf.org/wp-content/uploads/DRUSA
Spring2021.pdf [https://perma.cc/TY2R-BJRH ].
15. ALA. CODE § 13A-5-46(f) (2021); State v. Poole, 297 So. 3d 487, 505 (Fla. 2020); cf.
People v. McDaniel, 493 P.3d 815, 845–46 (Cal. 2021), cert. denied, 142 S. Ct. 2877 (2022) (hold-
ing that jury unanimity is not required to determine factually disputed aggravating circumstances
for death penalty eligibility).
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1088 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 55:1085
justifies a death sentence.
16
Indeed, the precedent implies that the
Sixth Amendment guarantees unanimity for every factually disputed
aggravating factor in states, like California, where a jury weighs any
and all aggravating factors against mitigating factors. The precedent
does not, however, imply that the Sixth Amendment requires a unani-
mous verdict as to every aggravating factor where a state’s capital sen-
tencing statute requires only one aggravating factor to increase a life
sentence to a death sentence.
Part I of this Note will examine the Ramos opinion, which over-
turned Apodaca v. Oregon. Part II will explain the role of the juror in
capital sentencing today and the racial consequences created by non-
unanimity in capital sentencing. Part III will explain why Ramos, com-
bined with the precedent set forth in Ring and Hurst, implies that Su-
preme Court precedent regarding the Sixth and Eighth Amendments
guarantees a unanimous jury verdict as to death and as to every aggra-
vating factor during capital sentencing.
I. OVERRULING APODACA AND NON-UNANIMITY IN SENTENCING
Until recently, Louisiana and Oregon relied on Apodaca v. Ore-
gon to allow a non-unanimous jury to convict a criminal defendant of
a felony.
17
A non-unanimous jury is also referred to as a “majority
vote” where only ten out of twelve jurors vote for a guilty convic-
tion—and that majority vote is sufficient for the conviction, where in
most other states that majority vote would result in a mistrial.
18
Apodaca v. Oregon was decided in 1972 in a fractured set of opin-
ions
where four Justices concluded that unanimity’s costs outweighed
its benefits, so the Sixth Amendment “should not stand in the way of
Louisiana or Oregon.”
19
Four Justices dissented, finding the same
holding as Ramos—that unanimity is incorporated against the states.
20
Justice Lewis Powell’s opinion, published in the Apodaca companion
16. See McDaniel, 493 P.3d at 845.
17. Over 1,500 people were convicted of felonies in Louisiana based on a non-unanimous jury
verdict—900 of whom are serving life without parole. Associated Press, Report: 1,500 La. Inmates
Convicted by Nonunanimous Juries, U.S. NEWS (Nov. 21, 2020, 2:12 PM), https://www.usnews
.com/news/best-states/louisiana/articles/2020-11-21/report-1-500-la-inmates-convicted-by-non-
unanimous-juries. At least 200 people were convicted by a non-unanimous jury in Oregon. Andrew
Selsky, Advocates to Keep Fighting Non-unanimous Jury Convictions, AP NEWS (May 17, 2021),
https://apnews.com/article/us-supreme-court-police-reform-race-and-ethnicity-government-and-
politics-965c862a31489d76a3bbba14bf5ddf2f
18. See, e.g., ALA. CODE § 13A-5-46(f) (2021).
19. Ramos v. Louisiana, 140 S. Ct. 1390, 1398 (2020).
20. Apodaca v. Oregon, 406 U.S. 404 (1972); Ramos, 140 S. Ct. at 1397.
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case, Johnson v. Louisiana,
21
was the tiebreaker—finding that alt-
hough the Sixth Amendment does require a unanimous jury verdict to
convict, the right is not fully incorporated against the states.
22
This
concept is now known as Justice Powell’s theory of “dual-track” in-
corporation—that a single right can have a different meaning when
applied to the federal government, as opposed to a state government.
23
The Apodaca Court did not consider that Louisiana and Oregon’s non-
unanimity schemes were rooted in racial animus (like the Court did in
Ramos).
24
The Court reconsidered Apodaca in Ramos v. Louisiana in 2020
after Evangelisto Ramos, who had been found guilty of second-degree
murder by a ten to two jury vote in Louisiana,
25
successfully petitioned
for writ of certiorari in 2019.
26
Ten jurors voted to convict Ramos,
while two voted for his acquittal.
27
In any other state besides Louisiana
(or Oregon), Ramos’ trial would have been a mistrial because of the
non-unanimous jury verdict.
28
Ramos argued that the Supreme Court
should overturn Apodaca because unanimity is a historical component
of the right to a jury trial,
29
the Court had already rejected the notion
of partial incorporation,
30
and because Louisiana’s non-unanimous
jury rule was adopted as a strategy to establish white supremacy.
31
21. 406 U.S. 366 (1972) (Powell, J., concurring).
22. Id.; Ramos, 140 S. Ct. at 1398.
23. Ramos, 140 S. Ct. at 1398.
24. Compare Apodaca, 406 U.S. 404 (discussing jury unanimity without reference to any ra-
cial animus during the process), with Ramos, 140 S. Ct. at 1394 (discussing defendant’s conviction
being rooted in racial animus).
25. State v. Ramos, 231 So. 3d 44, 46 (La. Ct. App. 2017).
26. Petition for Writ of Certiorari, Ramos, 140 S. Ct. 1390 (No. 18-5924).
27. Id.
28. Ramos, 140 S. Ct. at 1393.
29. Apodaca and Johnson conceded that the unanimous jury was commonplace in history.
Apodaca cited that the unanimity requirement arose during the Middle Ages and became an ac-
cepted feature of the common-law jury by the 18th century, while Johnson cited that the require-
ments of a unanimous jury in criminal cases and proof beyond a reasonable doubt are “so embedded
in our constitutional law and touch so directly all the citizens and are such important barricades of
liberty.” Petition for Writ of Certiorari at 11, Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (No. 18-
5924) (quoting Johnson v. Louisiana, 406 U.S. 356, 393 (1972) (Douglas, J., dissenting)). Sir Wil-
liam Blackstone also wrote about how critical juror unanimity was to protecting citizens against
the Crown. Id. at 12.
30. “This Court has rejected ‘the notion that the Fourteenth Amendment applies to the States
only a watered-down, subjective version of the individual guarantees of the Bill of Rights . . . .’”
Id. at 8 (quoting McDonald v. City of Chicago, 561 U.S. 742, 765 (2010)).
31. “Louisiana’s non-unanimous jury rule was adopted during the 1898 Louisiana Constitu-
tional Convention, where the entire point of the Convention was to limit African-American partic-
ipation in the democratic process and to ‘perpetuate the supremacy of the Anglo-Saxon race in
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1090 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 55:1085
A. Arguments for and Against Unanimity
The Supreme Court granted certiorari to determine whether the
Sixth Amendment right to a jury trial (as incorporated against the
states by the Fourteenth Amendment) requires a unanimous verdict to
convict a defendant of a serious offense.
32
Louisiana argued that there
was no compelling reason to overturn Apodaca, and that the Sixth
Amendment does not require a unanimous verdict in a criminal case.
33
Louisiana also maintained that recent provisions of the Louisiana Con-
stitution involving majority jury verdicts show that the scheme was
not based on race or white supremacy when it was updated after
1898.
34
Oregon
35
and many other states (even though, with the exception
of Oregon, their respective state constitutions required unanimity)
filed amicus briefs in favor of Louisiana.
36
Oregon conceded that the
unanimity rule, if applied prospectively, may be favorable and focused
on the concern that overruling Apodaca would disrupt forty-seven
years of majority-verdict convictions.
37
The states in favor of non-una-
nimity claimed that the text of the Sixth Amendment does not contain
any unanimity requirement and that if the Founders wanted to ensure
that the Sixth Amendment protected the common-law tradition of una-
nimity, they could have done so.
38
Additionally, these states argued
that the unanimity requirement makes it more difficult to convict de-
fendants, and that there is no clear data that non-unanimous juries are
more inaccurate than unanimous juries such that a trial cannot be con-
sidered just if a non-unanimous verdict is rendered.
39
Unanimity gives
too much power to a single “holdout juror,” these states contended—
Louisiana.’” Id. at 8–9 (citing OFFICIAL JOURNAL OF THE PROCEEDINGS OF THE CONSTITUTIONAL
CONVENTION OF THE STATE OF LOUISIANA, supra note 6).
32. Ramos, 140 S. Ct. at 1394.
33. Brief in Opposition at 18, Ramos, 140 S. Ct. 1390 (No. 18-5924).
34. Id. at 15.
35. Brief of Amicus Curiae State of Oregon in Support of Respondent, Ramos, 140 S. Ct. 1390
(No. 18-5924).
36. Brief of Amicus Curiae State of Utah et al. Supporting Respondent, Ramos, 140 S. Ct.
1390 (No. 18-5924).
37. Brief of Amicus Curiae State of Oregon in Support of Respondent at 1–3, Ramos, 140 S.
Ct. 1390 (No. 18-5924).
38. Brief of Amicus Curiae State of Utah et al. Supporting Respondent at 18–20, Ramos, 140
S. Ct. 1390 (No. 18-5924).
39. See id. at 26–31.
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citing that 42 percent of hung juries were deadlocked with only one or
two jurors holding out—resulting in more hung juries and mistrials.
40
In views not expressed in amicus briefs, victims’ rights advocates
in Oregon shared the concern that unanimity would result in more mis-
trials, which would force victims to have to testify multiple times.
41
Or, that unanimity would make it more difficult to convict defendants,
which would cause prosecutors to decline to try cases.
42
These views
fit the tough-on-crime narrative that matched the climate of the Nixon
era during which the Supreme Court ruled on Apodaca.
States that filed an amicus brief in favor of mandatory unanimity
argued that unanimity improves the quality of deliberation because ju-
rors deliberate longer, evaluate evidence more thoroughly, and address
the viewpoints of each member of the jury.
43
Mandatory unanimity
also ensures the consideration of minority juror viewpoints.
44
For ex-
ample, when a jury is composed of individuals with varied back-
grounds and perspectives the jury can draw from a base of knowledge
that a single juror cannot alone possess.
45
The improved deliberative
process promotes public confidence in the accuracy of jury verdicts
and the legitimacy of the criminal justice system,
46
whereas non-unan-
imous verdicts raise doubts about the legitimacy of convictions and
acquittals for serious offenses.
47
40. Id. at 27 (citing PAULA L. HANNAFORD-AGOR ET AL., NAT’L CTR. FOR STATE CTS., ARE
HUNG JURIES A PROBLEM? 67 (2002), https://www.ncsc-jurystudies.org/__data/assets/pdf_file/00
18/6138/hung-jury-final-report.pdf [https://perma.cc/NQX7-PXEM]).
41. Williams, supra note 7.
42. Id.
43. Brief for States of New York et al. as Amici Curiae in Support of Petitioner at 13, Ramos,
140 S. Ct. 1390 (No. 18-5924) (“In the absence of a unanimity requirement, ‘once a vote indicates
that the required majority has formed, deliberations halt in a matter of minutes.’” (first quoting Kim
Taylor-Thompson, Empty Votes in Jury Deliberations, 113 HARV. L. REV. 1261, 1272 (2000); and
then citing various studies showing that deliberation time corresponds to the number of jurors
needed to reach a verdict)).
44. Id. at 17 (“[A] non-unanimous decision rule allows juries to reach a quorum without seri-
ously considering minority voices, thereby effectively silencing those voices and negating their
participation.” (quoting AM. BAR ASS’N, PRINCIPLES FOR JURIES & JURY TRIALS 22 (2005))).
45. Id. (citing United States v. Lopez, 581 F. 2d 1338, 1341 (9th Cir. 1978) (“[A] veteran may
have a unique perspective on a defendant’s assertion that he committed a crime because of post-
traumatic stress disorder. A young woman might have insight about the testimony of a rape victim.
And a game hunter may evaluate a defendant’s claim of accidental discharge differently than a
person who has never held a weapon.”).
46. Id. at 20–21 (“The public is more likely to believe in the fairness and legitimacy of a
verdict rendered by the collected judgment of jurors from diverse backgrounds than a verdict ren-
dered over the unanswered objection of dissenters.” (citing Jeffrey Abramson, Four Models of Jury
Democracy, 90 CHI.-KENT L. REV. 861, 884 (2015))).
47. Id. at 15 (citing Edward P. Schwartz & Warren F. Schwartz, Decisionmaking by Juries
Under Unanimity and Supermajority Voting Rules, 80 GEO. L.J. 775, 787 (1992) (a majority verdict
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1092 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 55:1085
The Innocence Project and the Innocence Project of New Orleans
also filed an amicus brief in favor of Ramos arguing that non-unani-
mous jury verdicts create a high risk of wrongful convictions.
48
Out of
the fifty-six wrongful conviction cases in Louisiana to date, thirteen
of those cases were wrongful convictions by verdicts handed down by
a non-unanimous jury.
49
In ten of those thirteen cases, the wrongfully
convicted defendants were Black men.
50
Indeed, records of those juror
deliberations in which the juror vote was non-unanimous and led to
wrongful convictions revealed that the deliberations were short and
that it was Black jurors whose votes and opinions were nullified.
51
Ul-
timately, in deciding Ramos, the Court gave more weight to the argu-
ments in favor of Ramos.
52
B. The Ramos Ruling
Justice Gorsuch wrote for the majority and relied heavily on his-
tory and values to rule in Ramos’s favor.
53
Justice Gorsuch declared
that the Sixth Amendment’s “trial by an impartial jury” language must
have referred to a unanimous jury because unanimity emerged as a
“vital” common-law right in fourteenth century England,
54
and during
the founding of the United States, courts regarded unanimity as “es-
sential” to jury trials.
55
James Madison drafted the Sixth Amendment
with that history of unanimity as the “backdrop”—at which point
unanimous jury verdicts had been required for around 400 years.
56
Jus-
tice Gorsuch wrote that the historic right to a unanimous jury trial is
incorporated against the states because the Court had already
rule increased the probability of conviction by 641 percent and the probability of acquittal by 833
percent)).
48. Brief of Innocence Project New Orleans & The Innocence Project, Amici Curiae in Sup-
port of Petitioner at 2, Ramos, 140 S. Ct. 1390 (No. 18-5924).
49. Id. at 3, 8–9.
50. Id. at 10.
51. Id. at 4, 14.
52. Ramos, 140 S. Ct. at 1408.
53. Justice Gorsuch delivered the opinion of the Court with respect to Parts I, II–A, III, and
IV–B–1, in which Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh joined; an opinion with
respect to Parts II–B, IV–B–2, and V, in which Justices Ginsburg, Breyer, and Sotomayor joined;
and an opinion with respect to Part IV–A, in which Justices Ginsburg and Breyer joined. Justice
Sotomayor filed an opinion concurring as to all but Part IV–A. Justice Kavanaugh filed an opinion
concurring in part. Id. at 1393.
54. Id. at 1395–96 (Gorsuch, J., writing for the majority as to Part I, joined by Ginsburg,
Breyer, Kavanaugh, and Sotomayor, JJ.).
55. At the time of the nation’s founding, the Delaware, Maryland, North Carolina, Pennsylva-
nia, Vermont, and Virginia state constitutions explicitly required unanimity. Id. at 1396 n.12.
56. Id. at 1396.
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recognized that incorporated provisions of the Bill of Rights “bear the
same content” when asserted against the states—in other words, the
Court had already established that the Fourteenth Amendment is not
incorporated in a “watered-down” version against the states.
57
Justice Gorsuch rejected both Justice Powell’s reasoning and the
four other Justices who formed the Apodaca majority.
58
The Apodaca
majority overlooked that at the time of the Sixth Amendment’s adop-
tion, the right to a jury trial indeed included the right to a unanimous
verdict.
59
Justice Gorsuch denounced the Apodaca plurality for basing
their decision on the notion that the cost of unanimity outweighed the
benefits because unanimity may increase the number of hung juries in
state courts.
60
The plurality failed to consider the discriminatory rea-
sons for non-unanimous juries, the studies that suggest that elimina-
tion of unanimity has only a small effect on the rate of hung juries, and
that a unanimity requirement provides for open-minded and thorough
deliberations.
61
Justice Gorsuch’s largest criticism of the Apodaca plu-
rality was that they imposed their cost-benefit analysis on the “ancient
guarantee” of a unanimous jury verdict.
62
II. REVIEWING CAPITAL SENTENCING THROUGH
THE UNANIMITY LENS
Juror unanimity in the context of capital sentencing was beyond
the scope of Ramos—the issue was limited to state convictions for se-
rious crimes, but the holdings in Ring, Hurst, and Ramos, together,
imply that included in the Sixth Amendment is the right to a have a
jury unanimously vote for capital punishment (death) for as long as
capital punishment is considered constitutional. Yet, the Supreme
Court has not addressed unanimity in the state capital sentencing con-
text. In the last twenty years, a juror’s role in capital sentencing has
been propounded by the Supreme Court in the Hurst v. Florida
63
and
57. Id. at 1397–98.
58. “So what could we possibly describe as the ‘holding’ of Apodaca? Really, no one has
found a way to make sense of it. In later cases, this Court has labeled Apodaca an ‘exception,’
‘unusual,’ and in any event ‘not an endorsement’ of Justice Powell’s view of incorporation.” Id. at
1399 (Gorsuch, J., writing for the majority as to Part II-B, joined by Ginsburg, Breyer, and So-
tomayor, J.J.) (citing McDonald v. City of Chicago, 561 U.S. 742, 766 n.14 (2010)).
59. Id. at 1402.
60. Id. at 1401 (Gorsuch, J., writing for the majority as to Part III, joined by Ginsburg, Breyer,
Kavanaugh, and Sotomayor, JJ.).
61. Id.
62. Id. at 1401–02.
63. Hurst v. Florida, 577 U.S. 92, 94 (2016).
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1094 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 55:1085
Ring v. Arizona
64
rulings. However, because Ring and Hurst did not
touch on unanimity and because Ramos did not explicitly apply to cap-
ital punishment, states are enabled to dispose of the concept of una-
nimity when sentencing people to death. Consequently, in Alabama
and Florida, a person can be sentenced to death by a vote of only ten
jurors
65
—even though studies have shown that non-unanimity in cap-
ital sentencing creates a heightened risk that an innocent person will
be sentenced to death,
66
and federal capital sentencing requires that a
jury unanimously recommend a death sentence.
67
Moreover, just as the Court considered race in its analysis of the
issue in Ramos, an analysis of unanimity in the capital sentencing con-
text must also include a discussion of the racial history of capital pun-
ishment, and the discriminatory consequences of non-unanimity in
capital sentencing. Capital punishment itself is linked to lynching.
68
As the Equal Justice Initiative reported in its study of lynching, south-
ern states used capital punishment as an alternative to lynching.
69
Cap-
ital punishment was another way to impose racial violence, but it gave
the illusion of fairness because capital defendants had legal represen-
tation and the penalty was imposed after a trial.
70
As of 2019, 42.2
64. Ring v. Arizona, 536 U.S. 584, 613–19 (2002) (Breyer, J., concurring); see also Gregg v.
Georgia, 428 U.S. 153, 195 (1976) (the Eighth Amendment requires states to apply special proce-
dural safeguards when they seek the death penalty).
65. ALA. CODE § 13A-5-46(f) (2021) (“The decision of the jury to return a verdict recom-
mending a sentence of life imprisonment without parole must be based on a vote of a majority of
the jurors. The decision of the jury to recommend a sentence of death must be based on a vote of at
least 10 jurors. . . .”); State v. Poole, 297 So. 3d 487, 505 (Fla. 2020); see also Rick Rojas, 2 Jurors
Voted to Spare Nathaniel Woods’s Life. Alabama Executed Him., N.Y. TIMES (Mar. 5, 2020),
https://www.nytimes.com/2020/03/05/us/nathaniel-woods-alabama.html [https://perma.cc/HTW8-
APZ7] (explaining Alabama’s practice of imposing death penalty sentences based only on a ma-
jority of juror votes rather than juror unanimity).
66. Robert Brett Dunham, DPIC Analysis: Exoneration Data Suggests Non-unanimous
Death-Sentencing Statutes Heighten Risk of Wrongful Convictions, DEATH PENALTY INFO. CTR.
(Mar. 14, 2020), https://deathpenaltyinfo.org/news/dpic-analysis-exoneration-data-suggests-non-
unanimous-death-sentencing-statutes-heighten-risk-of-wrongful-convictions [https://perma.cc/P9
AS-9UEC].
67. See supra note 13.
68. EQUAL JUST. INITIATIVE, LYNCHING IN AMERICA: CONFRONTING THE LEGACY OF
RACIAL TERROR 62 (3d ed. 2017), https://eji.org/wp-content/uploads/2005/11/lynching-in-america
-3d-ed-110121.pdf [https://perma.cc/5NX6-MTX2].
69. Id.
70. See id. (discussing the 1931 Scottsboro Boys case, where nine young Black men were
charged with raping two white women in Scottsboro, Alabama—during the trial, white mobs pro-
tested outside of the courtroom demanding death for the defendants—all nine men were convicted
by all-white and all-male juries within two days and seven of the nine men were sentenced to death;
“Many defendants of the era learned that being sentenced to death rather than lynched did little to
increase the fairness of trial, reliability of conviction, or justness of sentence.”).
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percent of death row inmates were white despite the fact that white
people form the majority of the population in the United States.
71
Examining racial data connected to the jury in capital sentencing
reveals how non-unanimity in capital sentencing has discriminatory
consequences. Black people, who statistically view capital punish-
ment less favorably,
72
are less likely to serve on a jury in a capital case
because of death qualification, in which jurors are excluded from cap-
ital proceedings if they refuse to impose the death penalty under any
circumstance.
73
Black people and white people also differ in their
views about mitigating and aggravating evidence. Black people are
significantly more receptive to mitigating evidence than white people,
and the presence of Black jurors greatly reduces the likelihood of a
death sentence.
74
Indeed, Black jurors are more likely to believe that a
defendant is remorseful and less likely to be dangerous in the future.
75
If a majority of jurors are white during the capital sentencing, unanim-
ity in capital sentencing might lead to less death sentencing because
Black votes will not be nullified. Because dissenting votes are often
those of non-white jurors, unanimity allows for all opinions to be
heard—both in criminal convictions and in capital sentencing.
76
A. The Jury’s Role in Capital Sentencing: Ring and Hurst
Furman v. Georgia
77
held that capital punishment may not be im-
posed under sentencing procedures that create a substantial risk that
the penalty will be inflicted in an “arbitrary and capricious” manner.
78
The 1972 Furman ruling invalidated all capital punishment schemes
71. DPIC Analysis: Racial Disparities Persisted in U.S. Death Sentences and Executions in
2019, DEATH PENALTY INFO. CTR. (Jan. 21, 2020), https://deathpenaltyinfo.org/news/dpic-analy
sis-racial-disparities-persisted-in-the-u-s-death-sentences-and-executions-in-2019 [https://perma
.cc/LVK6-KUTZ].
72. A 2018 Pew Research study revealed that a 59 percent majority of white Americans favor
capital punishment for those convicted of murder, while only 36 percent of Black Americans fa-
vored capital punishment. J. Baxter Oliphant, Public Support for the Death Penalty Ticks Up, PEW
RSCH. CTR. (June 11, 2018), https://www.pewresearch.org/fact-tank/2018/06/11/us-support-for-
death-penalty-ticks-up-2018/ [https://perma.cc/DYL3-C9SY].
73. See Douglas Colby, Note, Death Qualification and the Right to Trial by Jury: An Original-
ist Assessment, 43 HARV. J.L. & PUB. POL’Y 815, 817–18 (2020).
74. William J. Bowers et al., Death Sentencing in Black and White: An Empirical Analysis of
the Role of Juror’s Race and Jury Racial Composition, 3 U. PA. J. CONST. L. 171, 181, 193 (2001).
75. William J. Bowers & Wanda D. Foglia, Still Singularly Agonizing: Law’s Failure to Purge
Arbitrariness from Capital Sentencing, 39 CRIM. L. BULL. 51, 77–80 (2003).
76. See, e.g., Proposed Brief of Amicus Curiae the Honorable Gavin Newsom in Support of
Defendant and Appellant at 69, People v. McDaniel, 493 P.3d 815 (2021) (No. S171393).
77. 408 U.S. 238 (1972).
78. Id. at 436.
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1096 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 55:1085
in the United States until the 1976 Gregg v. Georgia
79
ruling. In
Gregg, the Supreme Court held that capital punishment itself does not
violate the Eighth Amendment so long as it is imposed with certain
procedural safeguards given the unique nature of the punishment
(death) and the heightened reliability that the Eight Amendment de-
mands.
80
Thus, during capital sentencing, jurors consider aggravating
factors
81
and mitigating factors
82
before voting on whether a defendant
deserves the death so as to ensure that capital punishment does not
violate the Eighth Amendment under Gregg.
83
Moreover, the aggra-
vating factors must “genuinely narrow” the class of offenders eligible
for capital punishment to offenders who are “particularly deserving of
death” and must reasonably justify killing the defendant compared to
others found guilty of murder, who might, for example, serve a life
without parole sentence.
84
This is known as the “narrowing require-
ment.”
85
In 2002, the issue of whether a jury, or a judge, must find these
requisite aggravating factors came before the Supreme Court in Ring
v. Arizona because Arizona’s capital sentencing scheme allowed a
judge alone to find the requisite aggravating factors necessary to sen-
tence the defendant to death.
86
The Supreme Court ultimately held that
a judge cannot alone determine the aggravating factors required for
imposing death.
87
The Court based the Ring decision off of Apprendi
v. New Jersey,
88
a 2000 case which held that any fact that exposes a
defendant to a greater punishment than that authorized by the jury’s
79. 428 U.S. 153 (1976).
80. Id. at 189–95.
81. See, e.g., ALA. CODE § 13A-5-49 (2021) (aggravating factors may include, for example,
that the capital offense was especially heinous, atrocious, or cruel compared to other capital of-
fenses or that the victim of the capital offense was a police officer).
82. See, e.g., ALA. CODE §§ 13A-5-49, -52 (2021) (mitigating factors may include, for exam-
ple, that the defendant was emotionally disturbed, under extreme duress, or any other character
evidence that the defendant offers).
83. The Court in Gregg held that a capital sentencing scheme that (1) considered aggravating
and mitigating factors, and (2) required the state supreme court to review every death sentence, did
not violate the Eighth Amendment because the consideration of those factors made the penalty not
“wanton and freakish,” like the capital sentencing scheme that was held unconstitutional in Furman
v. Georgia. Gregg, 428 U.S. at 193–95.
84. Chelsea Creo Sharon, Note, The “Most Deserving” of Death: The Narrowing Requirement
and the Proliferation of Aggravating Factors in Capital Sentencing Statutes, 46 HARV. C.R.-C.L.
L. REV. 223, 224 (2011); see also Zant v. Stephens, 462 U.S. 862 (1983).
85. See Sharon, supra note 84, at 225.
86. See Ring v. Arizona, 536 U.S. 584, 585 (2002); see also Hurst v. Florida, 577 U.S. 92, 98
(2016) (discussing Ring).
87. Ring, 536 U.S. at 609.
88. 530 U.S. 466 (2000).
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guilty verdict is an element that must be submitted to the jury to satisfy
the Sixth Amendment.
89
Even though capital sentencing was outside
the scope of Apprendi, the Ring Court held that because Arizona’s
sentencing scheme enabled a judge to find the facts necessary to sen-
tence a defendant to death, the sentencing scheme violated Apprendi.
90
Justice Ginsburg, writing for the majority in Ring, declared that capital
defendants are entitled to a jury determination “of any fact on which
the legislature conditions an increase in their maximum punish-
ment.”
91
The Sixth Amendment’s right to a jury trial as applied against
the states by the Fourteenth Amendment requires that the jury make
the aggravating factor determination.
92
The Supreme Court reiterated the Ring holding in Hurst v. Flor-
ida, a 2016 Supreme Court case where Florida’s capital sentencing
scheme was at issue.
93
Florida’s capital sentencing procedure was a
“hybrid” proceeding where a jury rendered an advisory verdict of life
or death, but the judge made the ultimate sentencing determination.
94
In other words, the hybrid proceeding enabled a judge to hold a sepa-
rate hearing to determine whether sufficient aggravating factors ex-
isted to justify death.
95
The only difference between the Florida “hy-
brid” capital sentencing proceeding and Arizona’s pre-Ring capital
sentencing proceeding was that Florida incorporated a non-binding
“advisory” jury verdict as to death.
96
The Hurst ruling struck down
Florida’s capital sentencing scheme—the Florida jury’s non-binding
advisory verdict was not the necessary factual finding required by
Ring and Apprendi, and therefore, the defendant’s death sentence vio-
lated the Sixth Amendment to an impartial jury.
97
Hurst solidified that
the Sixth Amendment requires a jury, not a judge, to find each fact
necessary to impose a death sentence.
98
89. Id. at 490.
90. See Ring, 536 U.S. at 609.
91. Id. at 589, 602 (“If a State makes an increase in a defendant’s authorized punishment con-
tingent on the finding of a fact, that fact must be found by a jury beyond a reasonable doubt.”); see
also Apprendi, 530 U.S. at 482–83.
92. Ring, 536 U.S. at 597, 609 (overruling Walton v. Arizona, 497 U.S. 639 (1990) to the
extent that Walton allowed a sentencing judge, without a jury, to find an aggravating circumstance
to justify death).
93. Hurst v. Florida, 577 U.S. 92 (2016).
94. Id at 95.
95. Id. at 95–96.
96. Id. at 98–99.
97. Id. at 99.
98. Before Hurst, the only remaining states that had schemes that allowed a judge to make the
final death determination were Florida, Delaware, and Alabama. Delaware Supreme Court Holds
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1098 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 55:1085
B. Non-unanimity Bleeds into Capital Sentencing
Because Ring and Hurst did not address unanimity and because
Ramos did not explicitly apply to capital cases, states are enabled to
dispose of unanimity in capital sentencing. Missouri and Alabama
have made the news in recent years because in those states, a jury need
not unanimously vote to sentence a person to death.
99
Alabama, which
sentences more people to death per capita than any other state in the
United States,
100
does not require a unanimous juror vote to impose
death.
101
In fact, as of 2020, 80 percent of all capital sentences in Al-
abama involved a non-unanimous jury.
102
A recent Florida Supreme Court case, State v. Poole,
103
held that
neither Hurst v. Florida, nor the Sixth Amendment mandated that the
jury unanimously recommend a death sentence
104
—the Sixth
Death Penalty Is Unconstitutional, EQUAL JUST. INITIATIVE (Aug. 3, 2016), https://eji.org/news
/delaware-supreme-court-strikes-down-death-penalty/ [https://perma.cc/462S-P8J2]; see also Rauf
v. State, 145 A.3d 430, 434 (Del. 2016) (declaring that Delaware’s capital sentencing scheme was
unconstitutional and finding, based on a post-Hurst analysis of Delaware’s capital sentencing
scheme, that, during capital sentencing (1) the Constitution requires that a jury unanimously find
the existence of any aggravating circumstance beyond a reasonable doubt and (2) the Constitution
requires a jury to unanimously find that the aggravating circumstances outweigh the mitigating
circumstances beyond a reasonable doubt).
99. As of 2018, Missouri’s capital sentencing scheme allowed a judge to sentence a defendant
to death if a jury was non-unanimous as to the sentence, which seemingly violates Ring and Hurst.
Missouri Judge Imposes Second Non-Unanimous Death Sentence in Four Months, DEATH
PENALTY INFO. CTR. (Jan. 17, 2018), https://deathpenaltyinfo.org/news/missouri-judge-imposes-
second-non-unanimous-death-sentence-in-four-months [https://perma.cc/B8GF-XKFP].
100. Alabama’s Death Penalty, EQUAL JUST. INITIATIVE, https://eji.org/issues/alabama-death-
penalty/ [https://perma.cc/YEY2-E4GA].
101. Order Amending the Alabama Pattern Jury Instructions—Criminal for “Penalty Proceed-
ings—Capital Cases” § 8(d), Sup. Ct. of Ala. (Sept. 27, 2018), https://judicial.alabama.gov/docs/lib
rary/docs/9-27-2018.pdf [https://perma.cc/YF9X-LLCY] (“In order to bring back a verdict of
death, at least 10 of your number must vote for death . . . .”); see also Rojas, supra note 65.
102. Supreme Court Holds Jury Verdicts Must Be Unanimous in Criminal Cases, EQUAL JUST.
INITIATIVE (Apr. 20, 2020), https://eji.org/news/supreme-court-holds-jury-verdicts-must-be-unan
imous-in-criminal-cases/ [https://perma.cc/L56M-V7WY].
103. 297 So. 3d 487 (Fla. 2020).
104. Id. at 505. The Poole court also held that Florida’s jurors need not unanimously find that
the aggravating factors are sufficient for death and need not unanimously find that the aggravating
factors outweigh the mitigating factors. Id. (overturning Hurst v. State, 202 So. 3d 40 (Fla. 2016),
which held that a jury had to: (1) unanimously find aggravating factors beyond a reasonable doubt,
(2) unanimously find that the aggravating factors were sufficient to impose death, (3) unanimously
find that the aggravating factors outweigh the mitigating factors, and (4) unanimously recommend
a sentence of death, and effectively superseding Florida’s capital punishment statute, section
921.141 of the Florida Statutes, amended after Hurst v. State, which requires a unanimous vote as
to death); see also Florida Supreme Court “Recedes” from Major Death Penalty Decision Creating
Uncertainty About Status of Dozens of Cases, AM. BAR ASS’N (Mar. 10, 2020), https://www.ameri
canbar.org/groups/committees/death_penalty_representation/project_press/2020/spring/florida-su
preme-court-state-v-poole/ (discussing Hurst v. State and State v. Poole).
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Amendment only mandated that a jury unanimously find the existence
of one statutory aggravating circumstance beyond a reasonable
doubt.
105
The Poole court reasoned that the Supreme Court case Spa-
ziano v. Florida
106
held that the Sixth Amendment did not require any
unanimous jury recommendation of death and that Hurst v. Florida
only overruled Spaziano to the extent that the case allowed a judge
rather than a jury to find a necessary aggravating circumstance.
107
Moreover, the court said that even without Spaziano, the Apprendi line
of cases could not be read to require a unanimous jury death recom-
mendation—that those cases are about the facts of a crime, which the
Sixth Amendment requires a jury to find.
108
Justice Jorge Labarga of the Florida Supreme Court dissented in
Poole—remarking that receding from the requirement that juries unan-
imously recommend that a defendant be sentenced to death was a re-
treat from the national consensus and returned Florida to its status as
an absolute outlier (with the exception of Alabama) in United States
jurisdictions where capital punishment is permissible.
109
He noted that
at the time he wrote his dissent, Florida held the “shameful national
title” of the state with the most death row exonerations and that there
was every reason to maintain reasonable safeguards for ensuring that
capital punishment was fairly administered.
110
C. Supreme Court Capital Sentencing Jurisprudence
Requires Unanimity
Because the Florida Supreme Court’s decided State v. Poole be-
fore Ramos held that the Sixth Amendment requires unanimity in
105. Poole, 297 So. 3d at 491.
106. 468 U.S. 447 (1984).
107. Poole, 297 So. 3d at 505. Indeed, the Hurst discussion failed to explicitly mention anything
about juror unanimity in the context of capital sentencing and only explicitly overruled Spaziano
to the extent that it did not require a juror to make specific findings authorizing the imposition of a
death sentence. See Hurst v. Florida, 577 U.S. 92, 101 (2016).
108. Poole, 297 So. 3d at 504. In January 2021, the Supreme Court declined to review State v.
Poole, but not on the issue of unanimity for a death sentence — the Court declined to hear the issue
of whether a capital sentence where the jury did not make the requisite death eligibility findings
including aggravating circumstances outweighing mitigating circumstances violated the Sixth
Amendment. Poole v. Florida, SCOTUSBLOG (Jan. 11, 2021), https://www.scotusblog.com/case-
files/cases/poole-v-florida/ [https://perma.cc/2Z6T-ZNQC].
109. “The majority gives the green light to return to a practice that is not only inconsistent with
laws of all but one of the twenty-nine states that retain the death penalty, but inconsistent with the
law governing the federal death penalty.” Poole, 297 So. 3d at 513 (Labarga, J., dissenting).
110. Id. at 515 (citing Florida: History of the Death Penalty, DEATH PENALTY INFO. CTR.,
https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/florida [https://perma.cc/3LT2-N
425]).
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1100 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 55:1085
felony sentencing, the court’s analysis and holding in State v. Poole
makes some sense based on Ring and Hurst alone, excluding consid-
eration of other Supreme Court capital sentencing precedent (like Fur-
man and Gregg). Because the language of Ring and Hurst focuses on
the jury being required to make a finding of fact when that finding of
fact may lead to a more severe sentence, one could interpret that Ring
and Hurst alone entail no Sixth Amendment requirement for a unani-
mous verdict for a death sentence itself because the sentencing deci-
sion is not a decision of fact on which an increased punishment will
be imposed. The finding of the aggravating factor is indeed what ele-
vates the sentence to one of death.
However, Justice Labarga’s State v. Poole dissent sets forth the
proper understanding of unanimity in capital sentencing. The dissent
contains similar reasoning to other Supreme Court opinions on capital
punishment. For example, in Gregg, the Court in part considered the
national consensus on capital punishment.
111
Public support for capital
punishment and that the majority of states enacted new capital sen-
tencing statutes after the Furman decision were considerations in the
Court’s ultimate holding that capital punishment can comply with the
Eight Amendment.
112
Justice Labarga’s State v. Poole dissent is a
compelling argument that the national consensus is in favor of una-
nimity in capital sentencing because the majority of capital punish-
ment states require unanimity in capital sentencing. Indeed, Alabama
and Florida are outliers. Moreover, the Supreme Court has consist-
ently held that because death is different—capital punishment requires
unique safeguards.
113
Indeed, because non-unanimity in capital sen-
tencing is more likely to lead to wrongful convictions,
114
a proper and
necessary safeguard would be to require unanimity in capital sentenc-
ing so that capital punishment is not carried out in an “arbitrary and
capricious” manner, per Furman.
III. UNANIMITY AT ISSUE IN CALIFORNIA LAW
In the twenty-seven states where capital punishment is legal, sen-
tencing statutes include some or all of the following requirements (de-
pending on the state): a jury must vote unanimously for death over a
111. See Gregg v. Georgia, 428 U.S. 153, 187–88 (1976).
112. Id. at 179–83.
113. Id. at 187 (“When a defendant’s life is at stake, the Court has been particularly sensitive
to insure that every safeguard is observed.” (citing Powell v. Alabama 287 U.S. 45, 71 (1932))).
114. Dunham, supra note 66.
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life sentence, vote unanimously that the aggravating factors justify a
death sentence, vote unanimously that the aggravating factors out-
weigh the mitigating factors, and vote unanimously as to the existence
of any one aggravating factor beyond a reasonable doubt.
115
No state
requires that jurors unanimously vote on every aggravating factor used
to justify a death sentence.
116
On August 26, 2020, the California Su-
preme Court decided on this anticipated capital sentencing unanimity
issue in People v. McDaniel.
117
Capital defendant Don’te Lamont
McDaniel argued that the California state constitution and the Califor-
nia Penal Code required that a jury must decide unanimously and be-
yond a reasonable doubt on each aggravating factor presented to the
jury during capital sentencing.
118
During the penalty phase of McDan-
iel’s trial, the state introduced numerous aggravating circumstances.
119
A defendant becomes eligible for capital punishment in California if
115. See, e.g., Rauf v. State, 145 A.3d 430, 434 (Del. 2016) (finding, based on a post-
Hurst analysis of Delaware’s capital sentencing scheme, that, during capital sentencing (1) the Con-
stitution requires that a jury unanimously find the existence of any aggravating circumstance be-
yond a reasonable doubt and (2) the Constitution requires a jury to unanimously find that the ag-
gravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt).
Georgia requires unanimity as to the death sentence itself and as to at least one aggravating circum-
stance, but not as to every aggravating circumstance and requires no unanimity as to weighing of
aggravating circumstances against mitigating circumstances. See GA. CODE ANN. § 17-10-30(b)(7)
(2021); Hill v. State, 427 S.E.2d 770, 778 (Ga. 1993) (“[Jury findings] should [be] returned in the
conjunctive to ensure unanimity concerning the necessary elements of the § 17-10-30(b)(7) cir-
cumstances.”); Rivera v. State, 647 S.E.2d 70, 80 (Ga. 2007) (because the jury’s recommendation
of death for the defendant’s murder conviction “was sufficient to authorize the jury to find these
statutory aggravating circumstances beyond a reasonable doubt,” the fact that the jury returned a
disjunctive finding of other aggravating circumstances did not require reversal); GA. CODE
ANN. § 17-10-31(c) (2022) (“If the jury is unable to reach a unanimous verdict as to sentence, the
judge shall dismiss the jury and shall impose a sentence of either life imprisonment or imprisonment
for life without parole.”). See generally Cantero & Kline, supra note 9, at 10–11 (reporting on a
2009 survey of state capital sentencing unanimity requirements).
116. See ARIZ. REV. STAT. ANN. § 13-752(E) (2021); IDAHO CODE § 19-2515 (2021); ARK.
CODE ANN. § 5-4-603 (2021); H.B. 2339, 84th Leg., Reg. Sess. § 68(e) (Kan. 2011) (amending
Section 257 of chapter 136 of the 2010 Session Laws of Kansas); LA. CODE CRIM. PROC. ANN. art.
905.6–.7 (2021); GA. CODE ANN. § 17-10-30 (2021) (see notes); IND. CODE § 35-50-2-9 (2021);
MISS. CODE ANN. § 99-19-101 (2022); OHIO REV. CODE ANN. § 2929.03 (LexisNexis 2021);
OKLA. STAT. tit. 21, § 701.11 (West 2021); OR. REV. STAT. ANN. § 163.150 (West 2021); 42 PA.
CONST. STAT. § 9711 (West 2022); S.C. CODE ANN. § 16-3-20 (2010); S.D. CODIFIED LAWS
§§ 23A-27A-4, 23A-26-1 (2021) (requiring unanimous jury verdicts); TENN. CODE. ANN. § 39-13-
204 (2021); WYO. STAT. ANN. § 6-2-102 (2021); N.C. GEN. STAT. § 15A-2000 (2021); UTAH
CODE ANN. § 76-3-207 (LexisNexis 2021); NEV. REV. STAT. §§ 175.554, .556 (2019); Kentucky
(KY. REV. STAT. ANN. § 532.025 (West 2022)); see also Cantero & Kline, supra note 9, at 10–
11 (surveying capital sentencing statutes for unanimity requirements in 2009).
117. 493 P.3d 815 (Cal. 2021).
118. McDaniel also argued that jurors should have to decide as to death beyond a reasonable
doubt. Id. at 843–48.
119. Id. at 825–26.
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1102 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 55:1085
they are convicted of first degree murder,
120
found to be sane, and one
or more special circumstances is found to be true.
121
California re-
quires jurors to unanimously agree on a death sentence and to unani-
mously find that a special circumstance justifies death.
122
Before a
death sentence is imposed, a jury must conclude that the aggravating
circumstances outweigh the mitigating circumstances.
123
California
juries must vote unanimously that the aggravating factors outweigh
the mitigating circumstances and are so substantial in comparison to
those mitigating circumstances that death is appropriate.
124
However,
like every other state, California does not require unanimity on every
factually disputed aggravating circumstance,
125
nor does California re-
quire unanimity as to the existence of aggravating circumstances.
126
120. CAL. PENAL CODE §§ 189–190 (West 2014 & Supp. 2021) (first degree murder and pun-
ishment for first degree murder).
121. CAL. PENAL CODE §§ 190.1(c), 190.2 (list of special circumstances). Special circum-
stances in California are essentially the equivalent of aggravating circumstances in other states. See,
e.g., People v. Bacigalupo, 862 P.2d 808, 813 (Cal. 1993) (“Under our death penalty law, therefore,
the section 190.2 ‘special circumstances’ perform the same constitutionally required ‘narrowing’
function as the ‘aggravating circumstances’ or ‘aggravating factors’ that some of the other states
use in their capital sentencing statutes.”).
122. See CAL. PENAL CODE § 190.4(b) (procedure after a finding of guilty for special circum-
stance/first degree murder: “If the trier of fact is a jury and has been unable to reach a unanimous
verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury
impaneled to try the issue as to what the penalty shall be. If such new jury is unable to reach a
unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new
jury or impose a punishment of confinement in state prison for a term of life without the possibility
of parole.”).
123. CAL. PENAL CODE § 190.3 (West 2014) (“[The jury] shall impose a sentence of death if
the trier of fact concludes that the aggravating circumstances outweigh the mitigating circum-
stances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating
circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of
life without the possibility of parole.”).
124. Id.; see also Judicial Council of California Criminal Jury Instructions (CALCRIM) No.
766, https://www.courts.ca.gov/partners/documents/calcrim-2021.pdf [https://perma.cc/K2ND-U
MZ7] (“To return a judgment of death, each of you must be persuaded that the aggravating circum-
stances . . . outweigh the mitigating circumstances and are also so substantial in comparison to the
mitigating circumstances that a sentence of death is appropriate and justified.”). Compare People
v. Anderson, 22 P.3d 347, 378 (Cal. 2001), with Rauf v. State, 145 A.3d 430, 435 (Del. 2016)
(finding, based on a post-Hurst analysis of Delaware’s capital sentencing scheme, that, during cap-
ital sentencing (1) the Constitution requires that a jury unanimously find the existence of any ag-
gravating circumstance beyond a reasonable doubt and (2) the Constitution requires a jury to unan-
imously find that the aggravating circumstances outweigh the mitigating circumstances beyond a
reasonable doubt).
125. CAL. PENAL CODE § 190.3; see also Judicial Council of California Criminal Jury Instruc-
tions (CALCRIM) No. 766, https://www.courts.ca.gov/partners/documents/calcrim-2021.pdf
[https://perma.cc/K2ND-UMZ7] (“Each of you must decide for yourself whether aggravating or
mitigating factors exist. You do not all need to agree whether such factors exist.”).
126. People v. Hartsch, 232 P.3d 663, 699–700 (Cal. 2010).
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The court ruled against McDaniel and although McDaniel’s argu-
ments were rooted in state law, the court provided an analysis of Mr.
McDaniel’s argument under relevant federal law.
127
The court rea-
soned that the Sixth Amendment does not require that a jury unani-
mously agree on every aggravating circumstance in California, be-
cause in California the jury as a whole need not find any one
aggravating factor to exist to justify a death sentence, and instead, the
California penalty determination is a “free weighing of all of the fac-
tors relating to the defendant’s culpability.”
128
Moreover, the court
reasoned that during the guilt phase of trial, the special circumstance
elevating the crime to one eligible for capital punishment must be
found beyond a reasonable doubt by a unanimous jury.
129
Once the
crime has already been elevated to one eligible for a death sentence, a
jury must determine, unanimously, during the penalty phase, that ag-
gravating circumstances outweigh the mitigating circumstances so
substantially that death is justified.
130
The jury need not unanimously
vote on the “details of how a single, agreed-upon act was commit-
ted.”
131
The California Supreme Court explicitly did not reconsider
whether the failure to require unanimity for every aggravating circum-
stance ran afoul of Hurst, Ring, and Apprendi.
132
That is because the
court’s earlier precedent already declared that Hurst did not require
California to reconsider their holdings that capital punishment does
127. People v. McDaniel, 493 P.3d 815, 845 (Cal. 2021).
128. Id. (first citing People v. Snow, 65 P.3d 749, 799 n.32; then citing People v. Capers, 446
P.3d 726, 743–44 (Cal. 2019); and then citing People v. Rangel, 367 P.3d 649, 681 (Cal. 2016)).
California jurors are instructed to “consider . . . the aggravating and mitigating circumstances. . . .
[A]ssign whatever moral or sympathetic value you find appropriate . . . . [D]ecide for yourself
whether aggravating or mitigating factors exist. You do not all need to agree whether such factors
exist. . . . Determine which penalty is appropriate and justified by considering all the evidence and
the totality of any aggravating and mitigating circumstances. . . . [Y]ou may decide that the aggra-
vating circumstances are not substantial enough to warrant death. To return a judgment of death,
each of you must be persuaded that the aggravating circumstances . . . outweigh the mitigating cir-
cumstances and are also so substantial in comparison to the mitigating circumstances that a sen-
tence of death is appropriate and justified. To return a verdict of . . . death or life without the pos-
sibility of parole, all 12 of you must agree on that verdict.” Judicial Council of California Criminal
Jury Instructions (CALCRIM) No. 766, https://www.courts.ca.gov/partners/documents/calcrim-
2021.pdf [https://perma.cc/K2ND-UMZ7].
129. The court noted that “Apprendi and its progeny fundamentally concern sentencing and
require any fact, other than the fact of a prior conviction, that increases the penalty for a crime
beyond the prescribed statutory maximum to be found by a unanimous jury and proved beyond a
reasonable doubt.” McDaniel, 493 P.3d at 845.
130. Id. at 846.
131. Id.
132. Id. at 854.
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1104 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 55:1085
not constitute an increased sentence within the meaning of Apprendi
or their holdings that the imposition of capital punishment did not re-
quire factual findings within the meaning of Ring.
133
In so ruling,
many believe that California had the opportunity to make it even
harder to impose capital punishment in People v. McDaniel
134
and
failed to do so.
135
However, if the California Supreme Court had ruled
in favor of McDaniel, California would have become the first capital
punishment state to require juror unanimity as to every factually dis-
puted aggravating factor.
136
A ruling in favor of McDaniel would have made it harder to im-
pose the death penalty in California. Because California, unlike other
states, does not require the unanimous finding of at least one aggra-
vating factor, and instead imposes a weighing of factors; jurors should
have to unanimously find the existence of factually disputed aggravat-
ing circumstances because any one factor could push the jury in favor
of a death sentence. Whereas, in states where only one aggravating
factor is necessary to condemn a defendant, it is difficult to see how
Ring, Hurst, and Apprendi would require unanimity as to every aggra-
vating factor if only one factor elevates the sentence to a death sen-
tence.
IV. CONCLUSION
Ramos, combined with the holdings in Ring, Hurst, and Apprendi,
supports the notion that juror unanimity should also be required as to
the death sentence itself. Juror unanimity is required in federal capital
sentencing, and as Justice Gorsuch reiterated in Ramos, the Sixth
Amendment is not applied in a watered-down version against the
states. Because Ramos also emphasized that unanimity enhances the
quality of juror deliberations, in addition to the racial concerns of non-
unanimity, juror unanimity as to death should arguably be considered
a requisite procedural safeguard per Gregg v. Georgia and the Eighth
133. Id. at 853 (first citing People v. Capers, 446 P.3d 726 (Cal. 2019); and then citing People
v. Rangel, 367 P.3d 649 (Cal. 2016)).
134. Maura Dolan, California’s Top Court Weighs Overturning Hundreds of Death Penalty
Sentences, L.A. TIMES (June 3, 2021, 5:00 AM), www.latimes.com/california/story/2021-06-
03/california-top-court-considers-monumental-changes-to-death-penalty [https://perma.cc/7UX3-
EKH3].
135. Id. In his McDaniel concurrence, Justice Liu agreed that California’s earlier precedent
supported the McDaniel ruling, but he addressed the fact that the earlier precedent deserves a sec-
ond look given Apprendi. See McDaniel, 493 P.3d at 854 (Liu, J., concurring).
136. See supra note 116.
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Amendment. Moreover, in states, like California, where the death de-
termination is made by weighing multiple aggravating factors and
does not rest on one aggravating factor, Ring, Hurst, Apprendi, and
Ramos require unanimity as to each aggravating factor.
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