March 01, 2016

States to Watch after Hurst: Alabama & Delaware

In the wake of the United States Supreme Court’s holding in Hurst v. Florida, both Alabama and Delaware have been reexamining their own capital sentencing statutes with a critical eye. Both Alabama and Delaware have death penalty statutes that mirror the statute that was struck down by the Supreme Court in Hurst.


In Alabama, juries need not issue a unanimous decision to impose a death sentence. The statute requires a 10-2 majority. Additionally, like Florida, Alabama permits judges to override the jury’s recommendation.

Unlike in Florida, however, judges in Alabama regularly exercise their privilege to override juries’ recommendations. A number of the people on Alabama’s death row, in fact, have been sentenced to death on the basis of a judge’s override of the jury’s recommendation for a life or life without the possibility of parole sentence. In contrast, in Florida, judges have not utilized the judicial override provision since August 1999.

A trial court out of Jefferson County (Birmingham) found Alabama’s death penalty statute unconstitutional on March 3, 2016. The primary basis for the court’s finding was the abuse of the judicial override. As the trial court stated, “It is clear, from here on the front line, that Alabama’s judiciary has unequivocally been hijacked by partisan interests and unlawful legislative neglect.”

The Alabama Supreme Court has not yet heard the case.


Currently, Delaware’s death penalty statute permits juries to issue non-unanimous advisory sentences in capital cases, and like Florida, requires judges to make the findings regarding the weight to be attributed to aggravating and mitigating circumstances.

The current statute requires a capital jury to unanimously agree that evidence shows beyond a reasonable doubt that one of 22 statutory aggravating factors has been met. Then, each juror individually weighs the aggravating and mitigating circumstances and independently decides whether the aggravating factors outweigh the mitigating ones. Their decision regarding the appropriate weight to apply need not be unanimous, nor is the sentencing judge bound by the jury’s weight analysis. Finally, the jury’s sentencing verdict is advisory. The sentencing judge has the final authority.

Following the Supreme Court’s decision in Hurst, the state legislature of Delaware heard approximately two hours of testimony on January 28, 2016, regarding a bill to end capital punishment in the state. Among those testifying was Bryan Stevenson, a renowned capital defender and a Delaware native. At the end of the testimony, the Delaware House of Representatives voted 23-16 against the bill.

A similar bill passed in the Delaware Senate in April of 2015. Interest in the bill was revived not only by the Court’s opinion in Hurst but also by Gov. Jack Markell’s declaration that he would sign a bill ending capital punishment into law if the legislature passed such a bill.

Delaware has not limited its reexamination of its capital sentencing scheme to the state legislature, however. The Delaware Supreme Court requested briefing from both the defense counsel and the prosecution for the case of Benjamin Rauf. The court specifically asked counsel to address five certified questions of law:

  1. Whether the sentencing judge, independent of the jury, may find the existence of any aggravating circumstance in support of a capital sentence;
  2. Whether the jury must find the aggravating circumstances unanimously and beyond a reasonable doubt, assuming the jury must find the aggravating circumstances;
  3. Whether a finding that aggravating circumstances outweigh mitigating circumstances is critical because it is the statutory basis upon which the sentencing judge “shall impose a sentence of death;”
  4. Whether the jury must determine the weight of the aggravating and mitigating circumstances unanimously and beyond a reasonable doubt; and
  5. Whether any potentially unconstitutional provisions of Delaware’s death penalty statute can be excised from the statute while keeping the remaining capital sentencing scheme intact and constitutional.

In response to the Delaware Supreme Court’s interest, the original sponsors of the bill to repeal Delaware’s death penalty statute have opted not to seek a reconsideration of the January vote. A temporary stay of all capital murder trials and executions has been issued until the Delaware Supreme Court issues its opinion in Rauf.