           IN THE SUPREME COURT OF THE STATE OF DELAWARE

BENJAMIN RAUF,                        §
                                      §   No. 39, 2016
      Defendant-Appellant,            §
                                      §   Certification of Question of Law
      v.                              §   from the Superior Court
                                      §   of the State of Delaware
STATE OF DELAWARE,                    §
                                      §   Cr. ID No. 1509009858
      Plaintiff-Appellee.             §


                            Submitted: June 15, 2016
                            Decided:   August 2, 2016

Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and
SEITZ, Justices, constituting the Court en Banc.

Certification of questions of law from the Superior Court. Questions answered.

Santino Ceccotti, Esquire (Argued), Ross A. Flockerzie, Esquire, David C.
Skoranski, Esquire, Office of the Public Defender, Wilmington, Delaware for
Appellant.

Elizabeth R. McFarlan, Esquire, John R. Williams, Esquire, Sean P. Lugg, Esquire
(Argued), Delaware Department of Justice, Wilmington, Delaware for Appellee.

Elena C. Norman, Esquire, Kathaleen St. J. McCormick, Esquire, Nicholas J.
Rohrer, Esquire, Young Conaway Stargatt & Taylor LLP, Wilmington, Delaware;
Marc Bookman, Esquire, Atlantic Center for Capital Representation, Philadelphia,
Pennsylvania, Amicus Curiae for the Atlantic Center for Capital Representation.

Jeffrey S. Goddess, Esquire, Rosenthal, Monhait & Goddess, P.A., Wilmington,
Delaware; G. Ben Cohen, Esquire, The Promise of Justice Initiative, New Orleans,
Louisiana, Amicus Curiae for the Charles Hamilton Houston Institute for Race and
Justice.

Richard H. Morse, Esquire, American Civil Liberties Union Foundation of
Delaware, Wilmington, Delaware; Cassandra Stubbs, Esquire, Brian W. Stull,
Esquire, American Civil Liberties Union Capital Punishment Project, Durham,
North Carolina, Amicus Curiae for the American Civil Liberties Union Foundation
of Delaware and the American Civil Liberties Union Capital Punishment Project.
PER CURIAM of Chief Justice Strine, Justice Holland, and Justice Seitz:

         The State has charged the Defendant, Benjamin Rauf with one count of First

Degree Intentional Murder, one count of First Degree Felony Murder, Possession

of a Firearm During those Felonies, and First Degree Robbery. The State has

expressed its intention to seek the death penalty if Rauf is convicted on either of

the First Degree Murder counts. On January 12, 2016, the United States Supreme

Court held in Hurst v. Florida that Florida‘s capital sentencing scheme was

unconstitutional because ―[t]he Sixth Amendment requires a jury, not a judge, to

find each fact necessary to impose a sentence of death.‖1 On January 25, 2016, the

Superior Court certified five questions of law to this Court for disposition in

accordance with Supreme Court Rule 41.                  On January 28, 2016, this Court

accepted revised versions of the questions certified by the Superior Court and

designated Rauf as the appellant and the State as the appellee.2

         In this case, we are asked to address important questions regarding the

constitutionality of our state‘s death penalty statute. The Superior Court believed

that Hurst reflected an evolution of the law that raised serious questions about the

continuing validity of Delaware‘s death penalty statute.             Specifically, Hurst

prompted the question of whether our death penalty statute sufficiently respects a

defendant‘s Sixth Amendment right to trial by jury.

1
    136 S. Ct. 616, 619 (2016).
2
    Rauf v. State, No. 39, 2016 (Del. Jan. 28, 2016) (ORDER).
                                                 1
      Because answering the certified questions requires us to interpret not simply

the Sixth Amendment itself, but the complex body of case law interpreting it, we

have a diversity of views on exactly why the answers to the questions are what we

have found them to be. But that diversity of views is outweighed by the majority‘s

collective view that Delaware‘s current death penalty statute violates the Sixth

Amendment role of the jury as set forth in Hurst. We also have a shared belief that

the importance of the subject to our state and our fellow citizens, reflected in the

excellent briefs and arguments of the parties, makes it useful for all the Justices to

bring our various perspectives to bear on these difficult questions.

      For the sake of clarity, we set forth the five questions asked and the succinct

answers to them.

                                   Question One

      Under the Sixth Amendment to the United States Constitution, may a

sentencing judge in a capital jury proceeding, independent of the jury, find the

existence of ―any aggravating circumstance,‖ statutory or non-statutory, that has

been alleged by the State for weighing in the selection phase of a capital

sentencing proceeding?




                                          2
         No. Because Delaware‘s capital sentencing scheme allows the judge to do

this,3 it is unconstitutional.

                                        Question Two

         If the finding of the existence of ―any aggravating circumstance,‖ statutory

or non-statutory, that has been alleged by the State for weighing in the selection

phase of a capital sentencing proceeding must be made by a jury, must the jury

make the finding unanimously and beyond a reasonable doubt to comport with

federal constitutional standards?

         Yes. The jury must make the finding unanimously and beyond a reasonable

doubt.     Because the Delaware death penalty statute does not require juror

unanimity,4 it is unconstitutional.




3
  See 11 Del. C. § 4209(d)(1) (―If a jury has been impaneled and if the existence of at least 1
statutory aggravating circumstance as enumerated in subsection (e) of this section has been
found beyond a reasonable doubt by the jury, the Court, after considering the findings and
recommendation of the jury and without hearing or reviewing any additional evidence, shall
impose a sentence of death if the Court finds by a preponderance of the evidence . . . that the
aggravating circumstances found by the Court to exist outweigh the mitigating circumstances
found by the Court to exist. The jury‘s recommendation concerning whether the aggravating
circumstances found to exist outweigh the mitigating circumstances found to exist shall be given
such consideration as deemed appropriate by the Court in light of the particular circumstances or
details of the commission of the offense and the character and propensities of the offender as
found to exist by the Court. The jury‘s recommendation shall not be binding upon the Court.‖).
4
  See § 4209(c)(3)(b)(2) (―The jury shall report to the Court by the number of the affirmative and
negative votes its recommendation on the question as to whether, by a preponderance of the
evidence, after weighing all relevant evidence in aggravation or mitigation which bear upon the
particular circumstances or details of the commission of the offense and the character and
propensities of the offender, the aggravating circumstances found to exist outweigh the
mitigating circumstances found to exist.‖).
                                                3
                                    Question Three

         Does the Sixth Amendment to the United States Constitution require a jury,

not a sentencing judge, to find that the aggravating circumstances found to exist

outweigh the mitigating circumstances found to exist because, under 11 Del. C.

§ 4209, this is the critical finding upon which the sentencing judge ―shall impose a

sentence of death‖?

         Yes. Because Delaware‘s death penalty statute does not require the jury to

perform this function,5 it is unconstitutional.

                                    Question Four

         If the finding that the aggravating circumstances found to exist outweigh the

mitigating circumstances found to exist must be made by a jury, must the jury

make that finding unanimously and beyond a reasonable doubt to comport with

federal constitutional standards?

         Yes. We answer question four in the identical manner in which we have

answered question two.

                                     Question Five

         If any procedure in 11 Del. C. § 4209‘s capital sentencing scheme does not

comport with federal constitutional standards, can the provision for such be




5
    See supra note 3.
                                           4
severed from the remainder of 11 Del. C. § 4209, and the Court proceed with

instructions to the jury that comport with federal constitutional standards?

      No. Because the respective roles of the judge and jury are so complicated

under § 4209, we are unable to discern a method by which to parse the statute so as

to preserve it. Because we see no way to sever § 4209, the decision whether to

reinstate the death penalty—if our ruling ultimately becomes final—and under

what procedures, should be left to the General Assembly.

                                     Summary

      This Court‘s prior cases on the constitutionality of Delaware‘s capital

sentencing scheme are hereby overruled to the extent they are inconsistent with the

answers in this opinion. Having answered the certified questions, the Clerk is

directed to transmit the opinions in this matter to the Superior Court.




                                          5
STRINE, Chief Justice, concurring in the Majority per curiam, with whom Justice
HOLLAND and Justice SEITZ join:

                                       I.

         I join with a majority of my colleagues in concluding that Delaware‘s

current death penalty statute conflicts with the Sixth Amendment of the United

States Constitution. The importance and complexity of the subject before us is

illustrated by the somewhat different ways that each of us approach how the

questions put to us should be answered and why they should be answered ―yes,‖

―no,‖ or not answered in part. I agree with the succinct answers given to the five

certified questions before us in the Majority‘s per curiam opinion, in which I

happily and fully join.      The questions posed involve the application of a

fundamental constitutional right that is easy to state—the right to a trial by a jury—

but that has been the subject of complex judicial explication during the past

forty-four years since Furman v. Georgia1 made the administration of the death

penalty a constant subject of federal constitutional rulings. Given these decisions

and the compelling importance of the subjects we now must address, I therefore

burden the interested reader with an explanation of how I reached the answers I

did. The core of my reasoning, however, is as follows.

         Distilled to their essence, the most critical of questions before us ask

whether the Sixth Amendment requires a jury, rather than a judge, to make all of

1
    408 U.S. 238 (1972).
                                            1
the factual findings in capital sentencing—including balancing those factors for

itself in assessing whether death is the appropriate punishment—and, if so, whether

the jury must make such findings unanimously and beyond a reasonable doubt.

Although I acknowledge that the meaning of Hurst v. Florida2 is contestable, it

states that ―[t]he Sixth Amendment requires a jury, not a judge, to find each fact

necessary to impose a sentence of death.‖3 A combination of settled U.S. Supreme

Court cases makes it impossible for a state to enact a statute under which a

defendant must receive the death penalty if he is convicted. Rather, even if a jury

unanimously finds that a defendant is guilty of a crime that is punishable by

death—by for example, finding that a defendant has committed a particular type of

murder for which the legislature has said death is a possible penalty—additional

findings must be made. To sentence a defendant to death, the sentencing authority

must consider all relevant factors bearing on whether the defendant should live or

die, weigh those factors rationally against each other, and make an ultimate

determination of whether the defendant should die or receive a comparatively more

merciful sentence, typically life in prison. The option for the sentencing authority

to give a prison sentence, rather than a death sentence, must always exist. After

consideration of these factors and a determination that the balance of the relevant



2
    136 S. Ct. 616 (2016).
3
    Id. at 619.
                                         2
factors weighs in favor of a death sentence, the defendant cannot receive a death

sentence.

          For these reasons, if the core reasoning of Hurst is that a jury, rather than a

judge must make all the factual findings ―necessary‖ for a defendant to receive a

death sentence,4 then Delaware‘s statute cannot stand.            Because our General

Assembly has acted with alacrity to address the mandates of the U.S. Supreme

Court, our statute necessarily mandates a fact-intensive inquiry at the ultimate

stage of sentencing, in which the factors that aggravate toward a death sentence

and mitigate against it are considered and weighed.            This application of the

sentencing authority‘s judgment, conscience, and experience to the facts of record

is what drives the ultimate decision whether the defendant should live or die.

Without that exercise, no defendant can receive a death sentence consistent with

the principles established by U.S. Supreme Court cases pre-dating Hurst.

          I recognize that this reading of Hurst is contestable, and that Hurst can be

read as simply reiterating that any factual finding that makes a defendant eligible to

receive the death penalty must be made by the jury. Under that approach, once a

jury has done all that is statutorily required to make death a permissible

punishment, the jury‘s constitutionally required role goes away entirely and the use

of a jury at all is optional. Past case law, whose reasoning is in sharp tension with


4
    Id. at 624.
                                             3
the central reasoning of Hurst and its predecessors such as Apprendi v. New

Jersey,5 embraces this narrow approach.

         For myself, however, I find it impossible to embrace a reading of Hurst that

judicially draws a limit to the right to a jury in the death penalty context to having

the jury make only the determinations necessary to make the defendant eligible to

be sentenced to death by someone else, rather than to make the determinations

itself that must be made if the defendant is in fact to receive a death sentence. I am

unable to discern in the Sixth Amendment any dividing line between the decision

that someone is eligible for death and the decision that he should in fact die. The

post-Furman jurisprudence has created a regime governing death penalty cases that

is intricate in design and often in tension with itself.        Candor requires an

acknowledgment that that jurisprudence, although no doubt well-intended, has

helped impel a reduction in the historical role of American juries in the death

sentencing process in a small number of states, including our own.

         At the beginning of our Republic and throughout most of its history,

defendants did not go to the gallows unless juries said they should. And the role of

the jury was seen as especially important when a defendant‘s life was in the

balance, because it made sure that a defendant would suffer the ultimate

punishment only if twelve members of the community deliberated together and


5
    530 U.S. 466 (2000).
                                           4
unanimously concluded that should be so. To me, Hurst and its predecessors

surface a reality that had been somewhat obscured in the development of the law in

the decades since Furman, which is that the Sixth Amendment right to a jury is

most important and fundamental when the issue is whether a defendant should live

or die. As the U.S. Supreme Court has long recognized, death is different. The

proposition that any defendant should go to his death without a jury of his peers

deciding that should happen would have been alien to the Founders, and starkly out

of keeping with predominant American practices as of the time of Furman itself.

The cost of useful precedent mandating that each defendant who commits a capital

offense must also be accorded a rational sentencing proceeding that must include a

careful consideration of those factors weighing in favor of mercy does not have to

include depriving the defendant of the fundamental protection of a jury having to

make the final judgment about his fate. If the right to a jury means anything, it

means the right to have a jury drawn from the community and acting as a proxy for

its diverse views and mores, rather than one judge, make the awful decision

whether the defendant should live or die.

      I therefore give Hurst its plain meaning and concur in the per curiam

opinion‘s answers to the questions before us. Under our statute that faithfully

respects the requirement to consider all relevant sentencing factors and allow a

death penalty only after those factors are weighed and the option for mercy is


                                            5
considered, findings beyond the eligibility stage are necessary if a defendant is to

receive a death sentence. Thus, our statute cannot stand. And to put my opinion in

more basic terms, I embrace the notion that the Sixth Amendment right to a jury

extends to all phases of a death penalty case, and specifically to the ultimate

sentencing determination of whether a defendant should live or die. Although

states may give judges a role in tempering the harshness of a jury or in ensuring

proportionality, they may not execute a defendant unless a jury has unanimously

recommended that the defendant should suffer that fate.

      I also note that this same result can be reached by a more oblique and

alternative route, which is holding that the practice of executing a defendant

without the prior unanimous vote of a jury is so out of keeping with our history as

to render the resulting punishment cruel and unusual. The jury‘s historical role as

an important safeguard against overreaching in this most critical of contexts was

recognized at the founding, and prevails in most states today, making our own state

one of the few outliers. Hurst recognizes the centrality of the jury‘s historic role,

and my opinion gives effect to that recognition.

      Consistent with this reasoning, I also conclude that the Delaware death

penalty statute is inconsistent with the Sixth Amendment to the extent that it does

not require a unanimous jury to make the key discretionary findings necessary to

impose a death sentence by employing a beyond a reasonable doubt standard.


                                         6
From the inception of our Republic, the unanimity requirement and the beyond a

reasonable doubt standard have been integral to the jury‘s role in ensuring that no

defendant should suffer death unless a cross section of the community

unanimously determines that should be the case, under a standard that requires

them to have a high degree of confidence that execution is the just result.

                                            II.

       To explain how I address the certified questions and the U.S. Supreme Court

cases that occasion the certified questions before us, it is critical to understand, at

least in rough outline, how we as a nation and state got to where we are in the

administration of the death penalty, and how different things look from when our

nation was founded. By necessity, my recitation of this process is truncated,

involves some simplification of a very complicated subject, and is compromised by

the reality that I am a judge, and do not claim to be a historian. That said, I am

aided by the many scholars and lay commentators who have lucidly outlined the

basic directional facts.6




6
  See, e.g., John G. Douglass, Confronting Death: Sixth Amendment Rights at Capital
Sentencing, 105 COLUM. L. REV. 1967 (2005); Nancy Gertner, A Short History of American
Sentencing: Too Little Law, Too Much Law, or Just Right, 100 J. CRIM. L. & CRIMINOLOGY 691
(2010); Morris B. Hoffman, The Case for Jury Sentencing, 52 DUKE L.J. 951 (2003); Erik
Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About Apprendi, 82 N.C. L. REV.
621 (2004).
                                             7
       At the beginning of our Republic, prisons of the kind we now have, where

many defendants spend lengthy periods of their lives, were unknown.7 Instead,

nearly all felonies carried mandatory death sentences,8 as was traditional in

England—the primary example upon which our criminal justice system was built. 9

Because of greater American antipathy toward the death penalty, however,

American criminal statutes had already begun to narrow the long list of crimes for

which death was the mandatory sentence.10                   For example, in the 1790s,

Pennsylvania became the first state ―to alleviate the undue severity of the law by

confining the mandatory death penalty to ‗murder of the first degree,‘‖ 11 a trend

that would gain momentum.12




7
   See United States v. Grayson, 438 U.S. 41, 45 (1978), superseded by statute, Sentencing
Reform Act of 1984, 18 U.S.C. § 3551 et seq., 28 U.S.C. §§ 991–998, as recognized in Barber v.
Thomas, 560 U.S. 474 (2010); Lillquist, supra note 6, at 641–43.
8
   See Woodson v. North Carolina, 428 U.S. 280, 289 (1976); EVAN J. MANDERY, CAPITAL
PUNISHMENT IN AMERICA: A BALANCED EXAMINATION xxi (2d ed. 2012).
9
  See Douglass, supra note 6, at 1977–78.
10
   See Woodson, 428 U.S. at 289; John W. Poulos, The Supreme Court, Capital Punishment and
the Substantive Criminal Law: The Rise and Fall of Mandatory Capital Punishment, 28 ARIZ. L.
REV. 143, 200 (1986).
11
   Woodson, 428 U.S. at 290; see also HUGO ADAM BEDAU, THE DEATH PENALTY IN AMERICA:
CURRENT CONTROVERSIES 4 (1997).
12
   See BEDAU, supra note 11, at 4–5 (―In rapid order most states followed Pennsylvania‘s lead, so
that today every American jurisdiction that authorizes the death penalty for murder does so by
limiting it to those convicted of murder in the first degree . . . .‖); see also RAYMOND TAYLOR
BYE, CAPITAL PUNISHMENT IN THE UNITED STATES 5–6 (1919); 6 WAYNE R. LAFAVE, ET AL.,
CRIMINAL PROCEDURE § 26.1(b), at 670–71 (3d ed. 2007).
                                               8
       From the beginning of our nation‘s history, the jury‘s role as the sentencer in

capital cases ―was unquestioned.‖13 This was true in Delaware, where juries made

the life or death decision at the beginning of our history. 14 And, without any

exception I have been able to identify, no defendant was put to death in the early

stages of our nation‘s history without a jury making all the necessary

determinations required.15 Of course, it is a bit of a misnomer to say that juries

―sentenced‖ defendants to death. Capital trials were not bifurcated, and ―[t]he

question of guilt and the question of death both were decided in a single jury

verdict at the end of a single proceeding conducted as an adversarial trial.‖ 16 But,

it would be even more inaccurate to say that the jury did not have an important role

in exercising its discretion and conscience in a manner that determined whether the

defendant should live or die.

       The starkest way in which juries did this was by acquitting a defendant who

was obviously guilty.17 By this crude action of nullification, a jury could exercise


13
   Walton v. Arizona, 497 U.S. 639, 710–11 (1990) (Stevens, J., dissenting) (quoting Welsh S.
White, Fact-Finding and the Death Penalty: The Scope of a Defendant’s Right to Jury Trial, 65
NOTRE DAME L. REV. 1, 10–11 (1989)) (internal quotation marks omitted); see also Ronald F.
Wright, Rules for Sentencing Revolutions, 108 YALE L.J. 1355, 1373 (1999).
14
   See, e.g., State v. Baynard, 1 Del. Cas. 662 (O. & T. 1794); State v. Donovan, 1 Del. Cas. 168
(O. & T. 1798); see also State v. Jeandell, 5 Del. 475, 483 (Gen. Sess. 1854).
15
   See Lillquist, supra note 6, at 628–29; Nancy J. King, The Origins of Felony Jury Sentencing
in the United States, 78 CHI.-KENT L. REV. 937 (2003).
16
   Douglass, supra note 6, at 1972.
17
   See Woodson, 428 U.S. at 293; see also Roberts v. Louisiana, 428 U.S. 325, 360 (1976)
(White, J., dissenting); Furman v. Georgia, 408 U.S. 238, 298 (1972) (Brennan, J., concurring);
JEFFREY B. ABRAMSON, WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY 217
(1994); VALERIE P. HANS & NEIL VIDMAR, JUDGING THE JURY 149–58 (1986); Jenia Iontcheva,
                                               9
its conscience by refusing to convict a guilty defendant precisely because the jury

thought that death was too harsh a punishment for the crime. Rather than this

practice of nullification leading to hostility to juries by our founding generation, it

was seen as an example of the bedrock importance of the jury in securing the

liberties of our citizens.18 John Adams, for example, wrote: ―It is not only [the

juror‘s] right, but his duty . . . to find the verdict according to his own best

understanding, judgment, and conscience, though in direct opposition to the

direction of the court.‖19

       The practice of nullification also exposed an important community

viewpoint that statute writers began to recognize, which is that crimes could be

serious but yet not be considered so injurious to society as to always warrant a

death sentence. Therefore, as Pennsylvania had done, states increasingly narrowed

the felonies for which death was a mandatory sentence.20 Degrees of murder were

in large measure introduced to allow juries to convict a defendant of a degree of

homicide while not exposing the defendant to death.                     And over time, jury

Jury Sentencing as Democratic Practice, 89 VA. L. REV. 311, 321–22 (2003); see also Rachel E.
Barkow, Recharging the Jury: The Criminal Jury’s Constitutional Role in an Era of Mandatory
Sentencing, 152 U. PA. L. REV. 33, 79 (2003); Thomas A. Green, The Jury and the English Law
of Homicide 1200–1600, 74 MICH. L. REV. 413, 430–31 (1976).
18
   See CLAY S. CONRAD, JURY NULLIFICATION: THE EVOLUTION OF A DOCTRINE 47–48 (2014);
White, supra note 13, at 30–31 (―[I]t became accepted that in homicide cases the jury would
exercise its nullification power when it believed that the defendants—although they might be
technically guilty of the capital offense—did not deserve to die. Thus, in this context, the jury‘s
fact-finding power has historically been used to temper the application of capital punishment so
that it will mirror the community‘s perception as to when that punishment is appropriate.‖).
19
   C.F. ADAMS, THE WORKS OF JOHN ADAMS 255 (1865).
20
   See supra note 12 and accompanying text.
                                               10
discretion over sentencing was more candidly introduced, as several states moved

to statutory regimes under which even a defendant convicted of the most serious of

crimes—such as intentional murder—could nonetheless be given a sentence other

than death. In the 1830s and 40s, the first states abandoned mandatory death

sentences even in first degree murder cases and granted juries discretion in capital

sentencing.21 Our own General Assembly divided murder into two degrees in

1852, with first degree murder carrying a mandatory death sentence and second

degree murder carrying various harsh, non-capital sentences.22 This gave the jury

an option to convict, but to exempt the defendant from death if its sense of mercy

moved in that direction.23

       About half of the states adopted discretionary statutes by 1900, and even

more states followed soon after.24           In 1899, the U.S. Supreme Court itself

well-summarized some of the key developments:

       The hardship of punishing with death every crime coming within the
       definition of murder at common law, and the reluctance of jurors to
       concur in a capital conviction, have induced American legislatures, in
       modern times, to allow some cases of murder to be punished by
       imprisonment, instead of by death. That end has been generally
       attained in one of two ways: First. In some states and territories,
       statutes have been passed establishing degrees of the crime of murder,
       requiring the degree of murder to be found by the jury, and providing
       that the courts shall pass sentence of death in those cases only in

21
   See Woodson, 428 U.S. at 291.
22
   See Del. C. ch. 127 §§ 1, 2 (1852).
23
   See State v. Reidell, 14 A. 550, 550 (Del. 1888).
24
   See Woodson, 428 U.S. at 291; BEDAU, supra note 11, at 5–6; BYE, supra note 12, at 7–8.
                                              11
       which the jury return a verdict of guilty of murder in the first degree,
       and sentence of imprisonment when the verdict is guilty of murder in
       the lesser degree. . . . Second. The difficulty of laying down exact
       and satisfactory definitions of degrees in the crime of murder,
       applicable to all possible circumstances, has led other legislatures to
       prefer the more simple and flexible rule of conferring upon the jury, in
       every case of murder, the right of deciding whether it shall be
       punished by death or by imprisonment.25

       Some exceptions to the jury tradition emerged, albeit in an unsavory context

that actually underscores the importance of the right to a jury. A few states,

unhappy with the rights accorded to black citizens by the Fourteenth and Fifteenth

Amendments, cut back on unanimity requirements for juries, in order to mute the

voice of newly eligible black jurors.26 But even with these exceptions, the overall

picture was remarkably consistent:            Defendants received death sentences only


25
   Winston v. United States, 172 U.S. 303, 310–12 (1899).
26
   E.g., Robert J. Smith & Bidish J. Sarma, How and Why Race Continues to Influence the
Administration of Criminal Justice in Louisiana, 72 LA. L. REV. 361, 375–78 (2012).
        Regrettably, Delaware was among the many states that embarked on a century-long
campaign of resistance to the rights granted to black people by the Fourteenth and Fifteenth
Amendments, including those related to juries. In justifying the total absence of any black
citizens in grand and petit jury pools as ―nowise remarkable,‖ Delaware‘s then-Chief Justice said
that ―the great body of black men residing in this State are utterly unqualified by want of
intelligence, experience or moral integrity to sit on juries.‖ Neal v. Delaware, 103 U.S. 370, 402
(1880) (Waite, C.J., dissenting) (quoting the Delaware Supreme Court‘s opinion) (internal
quotation marks omitted). A divided U.S. Supreme Court held that this exclusion violated the
Fourteenth Amendment, but dissenters embraced the rationale that categorical exclusion of black
people from jury pools on the basis of their presumed unfitness to serve was constitutional. See
id. at 397–98 (Harlan, J.) (finding that Delaware‘s practice of restricting juries to ―free white
male citizens, of the age of twenty-two years and upwards‖ was in violation of the Fourteenth
Amendment); id. at 407–08 (Waite, C.J., dissenting) (―No one can truly affirm that women, the
aged, and the resident foreigner, whether Caucasian or Mongolian, though excluded from acting
as jurors, are not as equally protected by the laws of the State as those who are allowed or
required to serve in that capacity. To afford equality of protection to all persons by its laws does
not require the State to permit all persons to participate equally in the administration of those
laws, or to hold its offices, or to discharge the trusts of government.‖).
                                                12
when the jury determined they should. And that jury determination had to be

unanimous.27

       One byproduct of the jury‘s more explicit role in exercising sentencing

discretion over whether a defendant should live or die was the emergence of a

greater judicial role in sentencing defendants convicted by juries of committing a

crime for which death was not a possible sentence. Early in our history, those few

crimes that did not carry the death penalty had relatively short, if any, prison

sentences attached to them.28 As mentioned, the term ―prison‖ was itself not the

right word, as we did not have an institutionalized system for incarcerating

defendants.29 In England and then in the early stages of our Republic, there was a

tradition of sentencing by judges in non-capital, misdemeanor cases.30 As society

determined through law that not all serious crimes should subject defendants to

death and that there needed to be other serious sentencing options to fulfill

objectives such as retribution and even loftier goals such as rehabilitation,


27
   See Andres v. United States, 333 U.S. 740, 748 (1948) (―In criminal cases this requirement of
unanimity extends to all issues—character or degree of the crime, guilt and punishment—which
are left to the jury.‖); id. at 763 (Frankfurter, J., concurring) (―The fair significance to be drawn
from State legislation and the practical construction given to it is that it places into the jury‘s
hands the determination whether the sentence is to be death or life imprisonment, and, since that
is the jury‘s responsibility, it is for them to decide whether death should or should not be the
consequence of their finding that the accused is guilty of murder in the first degree. Since the
determination of the sentence is thus, in effect, a part of their verdict, there must be accord by the
entire jury in reaching the full content of the verdict.‖).
28
    See JOEL SAMAHA, CRIMINAL PROCEDURE 475 (2011); Corinna Barrett Lain, Furman
Fundamentals, 82 WASH. L. REV. 1, 23 (2007).
29
   See supra note 7 and accompanying text.
30
   See Wright, supra note 13, at 1374–75; King, supra note 15, at 985–86.
                                                 13
institutions such as so-called ―penitentiaries‖ where defendants could do penance

for their misdeeds emerged.31 Consistent with the tradition that judges had often

decided on the appropriate punishment when life or death was not the binary

choice, judicial sentencing for non-capital offenses became more prevalent.32 And,

when the question was not the stark one of life or death, but the more nuanced one

of what number of years a defendant should spend in prison, judicial expertise was

perhaps seen as valuable.

      Before fast-forwarding to the status of these trends in practice as of when

Furman was decided in 1972, another important factor must be considered. This

evolution of practices emerged without intrusion by the federal Judiciary or the

federal Constitution. One cannot find U.S. Supreme Court cases addressing the

constitutionality of the various state approaches to these issues. That is because it

was not until 1932 that the U.S. Supreme Court first began to apply the provisions

in the Bill of Rights protecting criminal defendants to the states.33 And the wave of

cases holding that the Fourteenth Amendment incorporated the procedural

protections of criminal defendants and that the states had to abide by those




31
   See United States v. Moreland, 258 U.S. 433, 448 (1922); see also ARTHUR W. CAMPBELL,
LAW OF SENTENCING § 1.2, at 6–9 (3d ed. 2004); Douglass, supra note 6, at 2018.
32
   See Hoffman, supra note 6, at 965; Lillquist, supra note 6, at 628–29.
33
   See Powell v. Alabama, 287 U.S. 45, 71 (1932).
                                          14
protections to the same extent as the federal government rose in the era after World

War II and crested in the 1960s.34

       Coincident with this wave was a general trend toward making the death

penalty rarer in application. Some states went so far as to abolish the death

penalty.35    Delaware even did that for a brief period, from 1958 to 1961.36


34
   See, e.g., In re Oliver, 333 U.S. 257, 271–73 (1948) (incorporating the Sixth Amendment right
to a public trial and to notice of accusations); Wolf v. Colorado, 338 U.S. 25, 27–28, 33 (1949)
(―[T]he security of one‘s privacy against arbitrary intrusion by the police—which is at the core
of the Fourth Amendment—is basic to a free society [and i]t is therefore implicit in ‗the concept
of ordered liberty‘ and as such enforceable against the States through the Due Process Clause.‖),
overruled in part by Mapp v. Ohio, 367 U.S. 643 (1961); Mapp, 367 U.S. at 655–56 (further
incorporating the Fourth Amendment exclusionary rule by holding that ―all evidence obtained by
searches and seizures in violation of the Constitution is . . . inadmissible in a state court‖);
Robinson v. California, 370 U.S. 660, 667 (1962) (incorporating the Eighth Amendment
protection against cruel and unusual punishment); Gideon v. Wainwright, 372 U.S. 335, 342
(1963) (incorporating the Sixth Amendment guarantee of counsel for indigent defendants in
felony cases); Ker v. California, 374 U.S. 23, 34 (1963) (confirming that the Fourth Amendment
protection against unreasonable searches and seizures apply to the states); Malloy v. Hogan, 378
U.S. 1, 10–11 (1964) (incorporating the Fifth Amendment protection against compelled
self-incrimination); Aguilar v. Texas, 378 U.S. 108, 110 (1964) (―[T]he standard for obtaining a
search warrant is [] ‗the same under the Fourth and Fourteenth Amendments.‘‖ (quoting Ker, 374
U.S. at 33)), abrogated by Illinois v. Gates, 462 U.S. 213 (1983); Pointer v. Texas, 380 U.S. 400,
403 (1965) (incorporating the Sixth Amendment right of an accused to confront prosecution
witnesses); Parker v. Gladden, 385 U.S. 363, 364 (1966) (incorporating the Sixth Amendment
right to trial by an impartial jury); Klopfer v. North Carolina, 386 U.S. 213, 222–23 (1967)
(incorporating the Sixth Amendment right to a speedy trial); Washington v. Texas, 388 U.S. 14,
19–20 (1967) (incorporating the Sixth Amendment right to have compulsory process for
obtaining defense witnesses); Duncan v. Louisiana, 391 U.S. 145, 149, 158 (1968)
(incorporating the Sixth Amendment right to a trial by jury in all criminal cases, except for
―petty‖ offenses); Benton v. Maryland, 395 U.S. 784, 796 (1969) (incorporating the Fifth
Amendment protection against double jeopardy); see also Jerold H. Israel, Selective
Incorporation: Revisited, 71 GEO. L.J. 253, 296 (1982) (―The decisions of the 1960‘s had
selectively incorporated all but four of the Bill of Rights guarantees relating to the criminal
justice process: public trial, notice of charges, prohibition of excessive bail, and prosecution by
indictment.‖).
35
   See Woodson, 428 U.S. at 291.
36
   See State v. Dickerson, 298 A.2d 761, 764 n.6 (Del. 1972); Hugo Adam Bedau, The Death
Penalty in America, 35 FED. PROBATION 32, 32 (1971); Valerie P. Hans et al., The Death
Penalty: Should the Judge or the Jury Decide Who Dies, 12 J. EMPIRICAL L. STUD. 70, 73
                                               15
Although Delaware then reenacted the death penalty, it did so only for first degree

murder. And the Delaware statute made a death sentence for first degree murder

mandatory but with a safety valve involving the jury. The jury could not only use

the traditional means of convicting of a lesser degree of murder as a way of

avoiding the imposition of a death sentence, but could convict of first degree

murder and recommend mercy and a non-capital sentence to the judge37—a choice

juries did not have in the early years of Delaware‘s death penalty.38 This mercy

safety valve was first instituted in Delaware for murder cases in 1917.39 In giving

juries discretion to exercise mercy, Delaware was consistent with the overall trends

in states that retained the death penalty in the twentieth century.40 But, by allowing

the sentencing judge to disregard that mercy recommendation and instead impose

death, Delaware was nearly alone.41 ―By the end of World War I, all but eight

States, Hawaii, and the District of Columbia either had adopted discretionary death

penalty schemes or abolished the death penalty altogether. By 1963, all of these

(2015); Glenn W. Samuelson, Why Was Capital Punishment Restored in Delaware?, 60 J. CRIM.
L. & CRIMINOLOGY 148, 148 (1969).
37
   See 29 Del. C. ch. 266 (1917); see also State v. Thomas, 111 A. 538, 539 (Del. 1920); State v.
Carey, 178 A. 877, 878 (Del. O. &. T. 1935).
38
   See Dickerson, 298 A.2d at 764 n.6.
39
   See id.
40
   See Woodson, 428 U.S. at 289; see also Sheri Lynn Johnson et al., The Delaware Death
Penalty: An Empirical Study, 97 IOWA L. REV. 1925, 1929 (2012).
41
    See Andres, 333 U.S. at 758 (Frankfurter, J., concurring) (―In three States a jury‘s
recommendation of life imprisonment is not binding on the trial court: Delaware, New Mexico,
and Utah.‖). It appears that there was only one instance in which a trial judge imposed death
when a jury recommended mercy, and that sentence was overturned on other grounds, depriving
this Court of the chance to address whether that judicial override was proper. See Jenkins v.
State, 230 A.2d 262, 265 & n.1 (Del. 1967).
                                               16
remaining jurisdictions had replaced their automatic death penalty statutes with

discretionary jury sentencing.‖42

       Given the continued centrality of the jury in capital sentencing in the United

States, it was perhaps mundane for the Supreme Court to say in Witherspoon v.

Illinois43 in 1968 that capital juries ―express the conscience of the community on

the ultimate question of life or death.‖44 After all, as of the time Witherspoon was

decided, jury sentencing in capital cases was not only the norm, but was used in all

but two states.45 By contrast, judicial sentencing for non-capital cases had become

prevalent, with prison sentences the primary form of punishment for most serious

crimes. Importantly, it was only in this same time period that the Supreme Court

held in Duncan v. Lousiana46 that the Fourteenth Amendment incorporates the

Sixth Amendment‘s right to a jury trial.47

       As of that time, the U.S. Supreme Court had still not held that the

Constitution placed any particular limits on states‘ imposition of the death penalty.


42
   Woodson, 428 U.S. at 291–92; see also Andres, 333 U.S. at 759 (Frankfurter, J., concurring);
Brief for the United States as Amicus Curiae at 36, McGautha v. California, 402 U.S. 183
(1971).
43
   391 U.S. 510 (1968).
44
   Id. at 519.
45
   See id. at 525–27 & nn. 2–8; Bryan A. Stevenson, The Ultimate Authority on the Ultimate
Punishment, 54 ALA. L. REV. 1091, 1140 (2003); see also Johnson v. Texas, 509 U.S. 350, 359
(1993); Lockett v. Ohio, 438 U.S. 586, 597–98 (1978); Stephen P. Garvey, ―As the Gentle Rain
From Heaven‖: Mercy in Capital Sentencing, 81 CORNELL L. REV. 989, 996 (1996); Susan R.
Klein & Jordan M. Steiker, The Search for Equality in Criminal Sentencing, 2002 SUP. CT. REV.
223, 262–65; Lillquist, supra note 6, at 648; infra note 228 and accompanying text.
46
   391 U.S. 145.
47
   See id. at 149; see also Parker, 385 U.S. at 364.
                                              17
Before then, ―the death penalty was widely authorized‖ and states were not

required by any judicial mandate implementing the federal Constitution to narrow

the class of defendants eligible for death or to otherwise ensure that the death

penalty was not applied in an arbitrary or discriminatory manner.48 Consistent

with the traditional lack of a federal role in these areas, the Supreme Court issued a

decision in 1971 in McGautha v. California,49 holding that a state did not need to

provide capital sentencing juries with any kind of guidance or list of considerations

to use in making the life-or-death determination. The Court explained why:

      In light of history, experience, and the present limitations of human
      knowledge, we find it quite impossible to say that committing to the
      untrammeled discretion of the jury the power to pronounce life or
      death in capital cases is offensive to anything in the Constitution. The
      States are entitled to assume that jurors confronted with the truly
      awesome responsibility of decreeing death for a fellow human will act
      with due regard for the consequences of their decision and will
      consider a variety of factors, many of which will have been suggested
      by the evidence or by the arguments of defense counsel.50

      By the beginning of the 1970s, the death penalty was being more sparingly

applied than at any previous time in our nation‘s history, and public support for the

death penalty was relatively low.51 McGautha seemed to signal the Supreme

Court‘s view that juries could, as a general matter, be trusted to exercise the

48
   Stephen F. Smith, The Supreme Court and the Politics of Death, 94 VA. L. REV. 283, 287
(2008); see also Lain, supra note 28, at 18.
49
   402 U.S. 183 (1971), overruled by Crampton v. Ohio, 408 U.S. 941 (1972).
50
   Id. at 207–08.
51
   See ANDREA D. LYON, THE DEATH PENALTY, WHAT‘S KEEPING IT ALIVE 7 (2014); Sam Kamin
& Justin Marceau, Waking the Furman Giant, 48 U.C. DAVIS L. REV. 981, 990 (2015); Lain,
supra note 28, at 18–19.
                                           18
awesome power historically entrusted to them of making the life or death decisions

put to them without prescriptive federal judicial guideposts. Likewise, McGautha

seemed to signal that the Supreme Court would allow death penalty law to

continue to evolve based on determinations by state legislatures. But that, of

course, did not turn out to be the case.

                                            III.

       The very next year, in 1972, Furman v. Georgia upset the traditions and

destabilized the foundations on which state death penalty statutes stood, causing

some states to respond with approaches that reduced the jury‘s role in the death

penalty sentencing process.52        In Furman, the Supreme Court reviewed two

Georgia Supreme Court decisions, which affirmed death sentences for a defendant

convicted of murder and a defendant convicted of rape, and one Texas Supreme

Court decision, which affirmed a death sentence for a defendant convicted of

rape.53 In each of the death statutes at issue, ―the determination of whether the

penalty should be death or a lighter punishment was left by the State to the

discretion of the judge or of the jury.‖54 Because there was a jury trial in each of




52
   See Lockett, 438 U.S. at 598; Smith, supra note 48, at 288–91; Kamin & Marceau, supra note
51, at 986–87; James S. Liebman, Slow Dancing With Death: The Supreme Court and Capital
Punishment, 1963–2006, 107 COLUM. L. REV. 1, 23 (2007).
53
   See Furman, 408 U.S. at 239.
54
   See id. at 240 (Douglas, J., concurring).
                                             19
the three cases, under the Georgia and Texas statutes a jury ultimately sentenced

each of the defendants to death.55

       The defendants in Furman argued that the Georgia and Texas statutes

contained ―unbridled discretion [that] made it impossible to rationally distinguish

between those who would live and those who would die.‖56                    ―Certiorari was

granted limited to the following question: ‗Does the imposition and carrying out of

the death penalty in (these cases) constitute cruel and unusual punishment in

violation of the Eighth and Fourteenth Amendments?‘‖ 57 The splintered Court

held that it did.

       Although the Court struck down death sentences in the cases on appeal, it

stopped short of holding the death penalty unconstitutional as a categorical matter.

In a one-paragraph per curiam opinion, the Furman majority held ―that the

imposition and carrying out of the death penalty in these cases constitute cruel and

unusual punishment in violation of the Eighth and Fourteenth Amendments.‖58

But, like the situation we find ourselves in today, the Court‘s majority could not

agree on exactly why that was so.59 Three Justices, each authoring a separate

concurring opinion, voted to strike down the death sentences because the death


55
   See id.; Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital
Federal Habeas Corpus Cases, 77 N.Y.U. L. REV. 699, 716 n.80 (2002).
56
   Lain, supra note 28, at 16–17.
57
   Furman, 408 U.S. at 239.
58
   Id. at 239–40 (emphasis added).
59
   See Lain, supra note 28, at 10–11.
                                             20
penalty statutes in question did not provide sufficient protections to ensure that the

death penalty was not imposed in an arbitrary and capricious manner, and as a

result, were applied in a racially discriminatory manner.60               As one respected

treatise explains it, the Furman plurality ―held that the death penalty was so

arbitrarily and randomly imposed that it violated the Eighth Amendment.‖ 61 The

views of the two other Justices who voted to overturn the convictions is easier to

state: They viewed any imposition of the death penalty to any defendant to be

cruel and unusual punishment, and therefore as unconstitutional under the Eighth

and Fourteenth Amendments.62

       Despite the lack of consensus, Furman clarified that a capital sentencing

scheme must meet a basic hurdle to avoid violating the Eighth Amendment:

―Furman mandates that where discretion is afforded a sentencing body on a matter

so grave as the determination of whether a human life should be taken or spared,

that discretion must be suitably directed and limited so as to minimize the risk of

wholly arbitrary and capricious action.‖63              In other words, what Furman




60
   See Furman, 408 U.S. at 256–57 (Douglas, J., concurring); id. at 308, 310 (Stewart, J.,
concurring); id. at 310–11, 313 (White, J., concurring).
61
   6 LAFAVE, ET AL., supra note 12, § 26.1(b), at 671.
62
   See Furman, 408 U.S. at 305 (Brennan, J., concurring); id. at 369 (Marshall, J., concurring).
63
   Gregg, 428 U.S. at 189; see also Zant v. Stephens, 462 U.S. 862, 876–77 (1983); Douglass,
supra note 6, at 1994.
                                              21
established is that the sentencer in a capital case cannot have ―unbridled

discretion‖ in sentencing a defendant.64

                                              IV.

       Given that the common practice in the states before Furman was to give to

the jury the discretion to impose a life or death sentence, Furman had the practical

effect of ―str[iking] down virtually every death penalty law nationwide,‖ 65 and

creating a de facto moratorium on executions.66 In fact, ―[w]hen the Supreme

Court decided Furman in 1972, almost everyone—including the Justices

themselves—believed that America had seen its last execution.‖67                     But after

Furman, the prior trends in the states reversed course. Instead of reacting to

Furman by abolishing death penalty statutes as most people had expected, states

responded by passing new death penalty statutes that they thought would satisfy

the requirements Furman established.68 Indeed, after Furman defendants again

began being given death sentences at very high rates.69



64
   Woodson, 428 U.S. at 285 (emphasis added); see also Eddings v. Oklahoma, 455 U.S. 104,
110–12 (1982); Douglass, supra note 6, at 1995.
65
    Smith, supra note 48, at 288; FRANKLIN E. ZIMRING & GORDON HAWKINS, CAPITAL
PUNISHMENT AND THE AMERICAN AGENDA 41 (1986); Liebman, supra note 52, at 23.
66
   See Baze v. Rees, 553 U.S. 35, 88 (2008) (Scalia, J., concurring); Lain, supra note 28, at 19.
67
   Lain, supra note 28, at 45; see also Furman, 408 U.S. at 313 (White, J., concurring); LEE
EPSTEIN & JOSEPH F. KOBYLKA, THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE
DEATH PENALTY 81 (1992); Arthur J. Goldberg, The Death Penalty and the Supreme Court, 15
ARIZ. L. REV. 355, 367 (1973).
68
   See Callins v. Collins, 510 U.S. 1127, 1144 (1994) (Scalia, J., concurring).
69
   See Lain, supra note 28, at 47–49; Smith, supra note 48, at 290; ZIMRING & HAWKINS, supra
note 65, at 39.
                                               22
       To avoid arbitrariness and comply with the Eighth Amendment as

interpreted in Furman, states experimented. Some states changed their capital

sentencing schemes after Furman to allow the trial judge to make the ultimate

life-or-death decision.70     Many other states enacted mandatory statutes, which

outlined a specific category of crimes for which the death penalty was the required

sentence.71    The rationale behind these statutes was an obvious response to

Furman‘s concern about arbitrariness and discrimination: If every defendant who

committed a capital offense was subject to death, there would be no discrimination

or arbitrariness in the sentencing process. Conviction would invariably equal

death.72

       Still other states took a different approach. To rationally narrow the crimes

for which death was a possibility, states began to adopt more specific statutes

under which a defendant would be eligible for a death sentence only if he was

found to have committed, for example, not just a homicide, but a type of homicide

that the statute identified as especially egregious and deserving of harsh

punishment.73 Thus, the post-Furman capital sentencing statutes often included




70
   See Stephen Gillers, Deciding Who Dies, 129 U. PA. L. REV. 1, 17–18, 43 (1980) (eight states
switched from jury sentencing to judge sentencing after Furman).
71
   See Lain, supra note 28, at 56–57.
72
   See Poulos, supra note 10, at 186.
73
   See Liebman, supra note 52, at 10.
                                              23
lists of aggravating factors intended to narrow the scope of death eligible crimes

and defendants.74

                                               V.

       By the bicentennial, this period of legislative reaction had resulted in cases

ripe for Supreme Court consideration.               On July 2, 1976, the Supreme Court

decided four cases that addressed the constitutional adequacy of several states‘

attempts to comply with Furman. The most famous of these so-called ―July 2nd

cases‖ was, of course, Gregg v. Georgia.75                 At issue in Gregg was the

constitutionality of Georgia‘s capital sentencing scheme that was structurally

similar to that which had been struck down in Furman,76 but which attempted to

address Furman‘s requirements by ―provid[ing] some sort of criteria to guide the

jury‘s discretion in determining whether to impose death.‖77 The Supreme Court

upheld Georgia‘s new capital sentencing scheme and clarified that its holding in

Furman was limited to the imposition of the death penalty in the specific Georgia

and Texas cases at issue in Furman under the then-existing statutes.78 In keeping

with what it then viewed as the popular opinion in the United States,79 the Court

held in Gregg ―that the punishment of death does not invariably violate the


74
   See id.; Douglass, supra note 6, at 1994.
75
   428 U.S. 153 (1976).
76
   See Liebman, supra note 52, at 28.
77
   Lain, supra note 28, at 55 n.317.
78
   See Gregg, 428 U.S. at 168–69.
79
   See id. 179.
                                               24
Constitution,‖ and specifically the Eighth Amendment.80 And, the Court held that

capital punishment is not a cruel and unusual punishment for the crime of murder,

but is ―an extreme sanction, suitable to the most extreme of crimes.‖81

       Of equal importance to Gregg‘s validation of state approaches involving

what some have called ―guided discretion‖ was the Supreme Court‘s rejection of

mandatory statutes as an answer to its concerns over capricious imposition of the

death penalty. In Woodson v. North Carolina,82 the Court reviewed the death

sentences of four defendants who had been convicted of first degree murder

resulting from their participation in an armed robbery. North Carolina was one of

the states that amended their capital sentencing schemes after Furman to make

death the mandatory sentence for eligible crimes. After ―sketching the history of

mandatory death penalty statutes in the United States,‖ the Court noted that its

findings ―reveal[] that the practice of sentencing to death all persons convicted of a

particular offense has been rejected as unduly harsh and unworkably rigid.‖ 83 And,

the Court observed, ―a mandatory death penalty statute . . . does not fulfill

Furman‘s basic requirement by replacing arbitrary and wanton jury discretion with




80
   Id. at 169; see also Jurek v. Texas, 428 U.S. 262, 268 (1976).
81
   Gregg, 428 U.S. at 187; see also Kansas v. Marsh, 548 U.S. 163, 173–74 (2006).
82
   428 U.S. 280.
83
   Id. at 289, 293; see also Roberts v. Louisiana, 428 U.S. 325, 335–36 (1976) (same).
                                               25
objective standards to guide, regularize, and make rationally reviewable the

process for imposing a sentence of death.‖84

        Woodson then observed that an additional ―constitutional shortcoming of the

North Carolina statute is its failure to allow the particularized consideration of

relevant aspects of the character and record of each convicted defendant before the

imposition upon him of a sentence of death.‖85 The Court explained:

        [I]n capital cases the fundamental respect for humanity underlying the
        Eighth Amendment requires consideration of the character and record
        of the individual offender and the circumstances of the particular
        offense as a constitutionally indispensable part of the process of
        inflicting the penalty of death. This conclusion rests squarely on the
        predicate that the penalty of death is qualitatively different from a
        sentence of imprisonment, however long. Death, in its finality, differs
        more from life imprisonment than a 100-year prison term differs from
        one of only a year or two. Because of that qualitative difference, there
        is a corresponding difference in the need for reliability in the
        determination that death is the appropriate punishment in a specific
        case.86

        After Woodson, it was widely believed that states could not specify by

statute a list of crimes for which conviction would automatically result in a death

sentence. Although the Supreme Court had supposedly left open that the murder

of a prison guard by a prisoner might be an exception87—a possibility the Supreme




84
   Id. at 303.
85
   Id.
86
   Id. at 304–05.
87
   See id. at 287 n.7; id. at 292 n.25.
                                          26
Court later expressly rejected in 198788—commentators viewed the mandatory

approach as having been soundly rejected.89

       And in Jurek v. Texas,90 the Supreme Court reviewed the conviction of a

Texas man sentenced to death for murder. The Texas statute at issue required the

sentencing jury to consider the aggravating factors during sentencing, but did not

allow consideration of mitigating factors. The Supreme Court invalidated that

statute, holding that ―in order to meet the requirement of the Eighth and Fourteenth

Amendments, a capital-sentencing system must allow the sentencing authority to

consider mitigating circumstances.‖91 ―A jury,‖ the Court reasoned, ―must be

allowed to consider on the basis of all relevant evidence not only why a death

sentence should be imposed, but also why it should not be imposed.‖92

       In the final July 2nd case, the Supreme Court upheld the capital sentencing

schemes that were amended after Furman to switch from jury to judge sentencing

in capital cases from an Eighth Amendment challenge. In Proffitt v. Florida,93 the

Court recognized ―that jury sentencing in a capital case can perform an important

societal function,‖ but nevertheless explained that the Court had ―never suggested

88
   See Sumner v. Shuman, 483 U.S. 66, 77–78 (1987).
89
   See, e.g., Margaret Jane Radin, The Jurisprudence of Death: Evolving Standards for the Cruel
and Unusual Punishments Clause, 126 U. PA. L. REV. 989, 999 (1978); Death Penalty, 90 HARV.
L. REV. 63, 64, 69 (1976).
90
   428 U.S. 262.
91
   Id. at 271; see also Woodson, 428 U.S. at 303–04; Lockett, 438 U.S. at 605; Douglass, supra
note 6, at 1994–95.
92
   Jurek, 428 U.S. at 271.
93
   428 U.S. 242 (1976).
                                              27
that jury sentencing is constitutionally required.‖94 Of course, Proffitt was decided

only in 1976, less than a decade after the Court had first held that the Sixth

Amendment right to a jury applied against the states.95              And Proffitt never

examined that there had not been much basis as of 1976 to ponder the question of

whether a defendant had a right to have a jury make the final decision as to death,

given the overwhelming historical prevalence of jury sentencing authority in that

most sensitive of realms.

       What followed Gregg and the other July 2nd cases was another wave of new

death penalty statutes that confirmed that Furman and its progeny had unsettled

tradition.96 Perhaps unsurprisingly, the complexity of the procedures necessary for

states to implement the death penalty in a manner consistent with the Supreme

Court‘s evolving case law raised new questions regarding the respective roles of

judge and jury.97 One consequence of the Supreme Court‘s jurisprudence was

clear, which is that it was no longer practicable for a capital defendant to be subject

to a singular proceeding after which his guilt and punishment were determined

simultaneously, because states could not establish a mandatory death sentence

regime.98 And, states were required to take steps to limit the arbitrariness in the



94
   Id. at 252.
95
   See supra note 47 and accompanying text.
96
   See Johnson v. Texas, 509 U.S. 350, 360 (1993).
97
   See Douglass, supra note 6, at 2024–25 (discussing this issue).
98
   See supra notes 82–89 and accompanying text.
                                               28
application of the death penalty.99         Thus, ―all death-penalty states abandoned

unitary trials in favor of bifurcated proceedings that separate the case into a ‗guilty‘

phase and a ‗penalty‘ phase.‖100 By and large, this meant that states had to set up a

process for the consideration of all relevant factors bearing on whether a particular

defendant deserved the death penalty, including mitigating factors relevant only to

sentencing and not to guilt or innocence. Likewise, it meant having a process to

try to ensure proportionality in the imposition of the death penalty, by making sure

that it was not imposed for crimes that were not sufficiently egregious. 101 This

proportionality review necessarily required a consideration of not just the case at

hand, but of other similar cases, and was more fitting for judicial rather than jury

performance.102

       In reaction to the very cases that gave capital defendants constitutional

protections against arbitrary and capricious imposition of the death penalty, some

states adopted statutes that left them exposed to a new fate that was historically

unusual in American history—the possibility of being executed without a jury

unanimously saying that should happen. That is, as states adopted statutes that

provided specific processes to meet Furman‘s core concerns, some of them


99
   See supra notes 63–64 and accompanying text.
100
    Douglass, supra note 6, at 1995; see also id. at 2020.
101
    See Gregg, 428 U.S. at 173; Enmund v. Florida, 458 U.S. 782, 815 (1982) (same); Weeks v.
State, 653 A.2d 266, 270 (Del. 1995).
102
    See, e.g., Coker v. Georgia, 433 U.S. 584, 596 (1977); Clark v. State, 672 A.2d 1004, 1010
(Del. 1996).
                                             29
increasingly shifted the locus of authority for capital sentencing determinations

away from juries and toward judges.103 In effect then, Furman and the July 2nd

cases set in motion a historically unprecedented period in which sentencing in

capital cases was distinct from the conviction phase, in which judges in some states

came to have a more critical role, and in which it was not even clear that juries had

to have a role at all.104

       When the U.S. Supreme Court reviewed these capital sentencing statutes

that state legislatures enacted or revised in the wake of Furman and Gregg, the

Court also addressed cases focused on defendants‘ rights under the Sixth

Amendment. More specifically, after the states enacted statutory approaches to

satisfy Furman‘s key mandates, the U.S. Supreme Court issued a number of

decisions addressing various issues regarding the respective roles of judges and

juries in capital sentencing.

        In Spaziano v. Florida,105 for example, the Supreme Court reviewed

Florida‘s capital sentencing scheme, which allowed the sentencing judge to

override a jury‘s recommendation of life imprisonment and impose a death

sentence.106    This is precisely what happened at Spaziano‘s sentencing, and

Spaziano contended ―that allowing a judge to override a jury‘s recommendation of

103
    See Douglass, supra note 6, at 1984; Stevenson, supra note 45, at 1140.
104
    See Liebman, supra note 52, at 30–34.
105
    468 U.S. 447 (1984), overruled by Hurst v. Florida, 136 S. Ct. 616 (2016).
106
    See id. at 451.
                                               30
life violates the Eighth Amendment‘s proscription against ‗cruel and unusual

punishments,‘‖ and ―that the [judicial override] practice violates the Sixth

Amendment.‖107 Despite the fact that the Supreme Court had recently held in a

number of cases that procedural protections from the guilt stage of a criminal

case—including those guaranteed by the Sixth Amendment—also applied at the

penalty stage,108 the Court rejected Spaziano‘s arguments and upheld Florida‘s

capital sentencing scheme, holding ―that there is no constitutional imperative that a

jury have the responsibility of deciding whether the death penalty should be

imposed.‖109       As to Spaziano‘s Sixth Amendment argument, the Court‘s

reasoning—echoing its slight Eighth Amendment discussion in Proffitt—was so

cursory that it can be quoted in full:

       This Court, of course, has recognized that a capital proceeding in
       many respects resembles a trial on the issue of guilt or innocence.
       Because the ―embarrassment, expense and ordeal . . . faced by a
       defendant at the penalty phase of a . . . capital murder trial . . . are at
       least equivalent to that faced by any defendant at the guilt phase of a
       criminal trial,‖ the Court has concluded that the Double Jeopardy
       Clause bars the State from making repeated efforts to persuade a
107
    Id. at 457–58.
108
     See, e.g., Strickland v. Washington, 466 U.S. 668, 686–87 (1984) (holding that criminal
defendants have a right to effective assistance of counsel at ―[a] capital sentencing proceeding‖
because such a proceeding ―is sufficiently like a trial in its adversarial format and in the
existences of standards for decision‖); Mempa v. Ray, 389 U.S. 128, 134 (1967) (explicitly
extending the Sixth Amendment right to counsel to sentencing); see also White, supra note 13, at
18 n.145 (―Prior to Spaziano, the Court had decided a series of cases holding that procedural
protections at the guilt stage are also applicable at the penalty stage. See, e.g., Estelle v. Smith,
451 U.S. 454 (1981) (privilege against self-incrimination and right to counsel under Massiah);
Bullington v. Missouri, 451 U.S. 430 (1981) (double jeopardy); Gardner v. Florida, 430 U.S.
349 (1977) (right to confront and rebut government evidence).‖).
109
    Spaziano, 468 U.S. at 465; see also id. at 464.
                                                31
       sentencer to impose the death penalty. The fact that a capital
       sentencing is like a trial in the respects significant to the Double
       Jeopardy Clause, however, does not mean that it is like a trial in
       respects significant to the Sixth Amendment‘s guarantee of a jury
       trial. The Court‘s concern in Bullington was with the risk that the
       State, with all its resources, would wear a defendant down, thereby
       leading to an erroneously imposed death penalty. There is no similar
       danger involved in denying a defendant a jury trial on the sentencing
       issue of life or death. The sentencer, whether judge or jury, has a
       constitutional obligation to evaluate the unique circumstances of the
       individual defendant and the sentencer‘s decision for life is final.
       More important, despite its unique aspects, a capital sentencing
       proceeding involves the same fundamental issue involved in any other
       sentencing proceeding—a determination of the appropriate
       punishment to be imposed on an individual. The Sixth Amendment
       never has been thought to guarantee a right to a jury determination of
       that issue.110

Turning to Spaziano‘s Eighth Amendment argument, the Court explained that the

fact that the only three states allowed a judge to override a jury‘s recommendation

of life does not mean that those states‘ capital sentencing schemes are

unconstitutional because ―[t]he Eighth Amendment is not violated every time a

State reaches a conclusion different from a majority of its sisters over how best to

administer its criminal laws.‖111

       The Court reaffirmed and extended its holding in Spaziano in several later

cases, many of which also involved Florida‘s capital sentencing scheme.                      In




110
    Id. at 458–59 (citations omitted) (quoting Bullington v. Missouri, 451 U.S. 430, 445 (1981))
(internal quotation marks omitted).
111
    Spaziano, 468 U.S. at 464.
                                              32
Hildwin v. Florida,112 for example—―a per curiam decision without briefing,

argument, or plenary consideration‖113—the Court held that ―the Sixth Amendment

does not require that the specific findings authorizing the imposition of the

sentence of death be made by the jury.‖114 Using Spaziano as a springboard, the

Court reasoned that because ―the Sixth Amendment permits a judge to impose a

sentence of death when the jury recommends life imprisonment, . . . it follows that

it does not forbid the judge to make the written findings that authorize imposition

of a death sentence when the jury unanimously recommends a death sentence.‖115

       And, in Clemons v. Mississippi,116 the U.S. Supreme Court reaffirmed its

view that the Constitution did not require jury sentencing or that a jury make all

factual findings that are necessary to sentence a defendant to death.117 The Court

also explained in Clemons that a state appellate court may uphold a death sentence

that is based in part on an invalid statutory aggravating factor—or, as I refer to it

for the sake of simplicity and functional clarity, a ―death eligibility factor‖—as

long as that error is harmless because, for example, a different death eligibility

factor existed.118



112
    490 U.S. 638 (1989), overruled by Hurst v. Florida, 136 S. Ct. 616 (2016).
113
    White, supra note 13, at 18.
114
    Hildwin, 490 U.S. at 640–41.
115
    Id. at 640 (emphasis added); see also White, supra note 13, at 18–19.
116
    494 U.S. 738 (1990).
117
    See id. at 745.
118
    See id.
                                               33
       The Supreme Court again rejected a defendant‘s argument that the

Constitution requires jury sentencing in capital cases in Walton v. Arizona.119

There, a capital defendant challenged Arizona‘s capital sentencing scheme under

both the Sixth and Eighth Amendments.                 The Court first rejected Walton‘s

argument that Arizona‘s capital sentencing scheme, which required the trial judge

to make all factual findings involved in capital sentencing and gave the jury no

advisory role, was sufficiently distinct from the Florida scheme the Court had

upheld in Spaziano and Hildwin scheme, which did give the jury at least an

advisory role, to make the Arizona statute more vulnerable under the Sixth

Amendment.120       The Court was not troubled by any lesser role for the jury.

Instead, relying on Spaziano, Hildwin, and Clemons, the Court then held ―that the

Arizona capital sentencing scheme does not violate the Sixth Amendment.‖121

Second, the Court rejected Walton‘s Eighth Amendment argument, concluding that

a death penalty statute does not violate the Eighth Amendment solely because it

puts the burden of proving mitigating factors by a preponderance of the evidence

on the defendant.122




119
    497 U.S. 639, overruled by Ring v. Arizona, 536 U.S. 584 (2002).
120
    See id. at 648.
121
    Id. at 649.
122
    See id. at 650.
                                              34
       Finally, in Harris v. Alabama,123 the Supreme Court held that a capital

sentencing scheme that ―vests capital sentencing authority in the trial judge, but

requires the judge to consider an advisory jury verdict‖ was not unconstitutional.124

The Court noted the similarities between the Florida and Alabama schemes, and

observed that the key difference was that the Florida scheme which it had

previously upheld in the cases discussed above, unlike its Alabama counterpart,

required a trial judge to ―give ‗great weight‘ to the jury‘s recommendation

and . . . not override the advisory verdict of life unless ‗the facts suggesting a

sentence of death [are] so clear and convincing that virtually no reasonable person

could differ.‘‖125 Harris argued that the failure of Alabama‘s statute to provide

similar guidelines for considering the jury‘s advisory verdict rendered the statute

unconstitutional.126 But the Court disagreed: ―The Constitution permits the trial

judge, acting alone, to impose a capital sentence. It is thus not offended when a

State further requires the sentencing judge to consider a jury‘s recommendation

and trusts the judge to give it the proper weight.‖127

                                         *       *       *

       In sum, as the law stood at the turn of the twentieth century, the Supreme

Court itself held that jury sentencing was not required in capital cases, even though
123
    513 U.S. 504 (1995).
124
    Id. at 505.
125
    Id. at 509 (quoting Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975)).
126
    See id. at 511.
127
    Id. at 515.
                                                35
jury sentencing in death penalty cases had been predominant throughout our

nation‘s history before Furman128 and continued to be so.129 But, the Supreme

Court had placed some limits on death sentences, such as holding mandatory death

sentences unconstitutional and requiring that the sentencer consider mitigating

factors.130 And, the Supreme Court itself had recognized that its own jurisprudence

had essentially required at least two different stages within a case if a state was to

impose the death penalty consistent with the Constitution.                   To address the

requirement of Furman that capital sentencing discretion be narrowed to help

avoid arbitrary results, there must first be a phase that the Supreme Court has at

different times called the ―definition stage‖131 and the ―eligibility phase,‖132 the

latter of which I adopt as the more appropriate term. I refer to it as the eligibility

phase because that is the phase in which the defendant is found eligible for the

death penalty, typically as a result of a finding that one or more aggravating factors

exists that qualify his crime as making death an authorized punishment. This

eligibility phase responds to the requirements of Furman and its progeny, such as

Godfrey v. Georgia133 and Maynard v. Cartwright134 that there be a meaningful


128
    See supra note 15 and accompanying text.
129
    See Harris, 513 U.S. at 516–17 (Stevens, J., dissenting).
130
    See supra notes 85–92 and accompanying text.
131
    See, e.g., Zant, 462 U.S. at 879.
132
    See, e.g., Kansas v. Carr, 136 S. Ct. 633, 642 (2016); Jones v. United States, 527 U.S. 373,
381 (1999).
133
    446 U.S. 420 (1980).
134
    486 U.S. 356 (1988).
                                              36
―narrowing‖ of the class of offenders eligible for the death penalty.135                      The

statutory eligibility factors are typically referred to as aggravating factors, because

they are seen as special circumstances that take a very serious crime, such as an

unlawful homicide, and make it particularly blameworthy and thus subject to the

perpetrator to a possible death sentence. Common aggravators include killing a

victim who is a peace officer and committing murder in the course of another

felony.136 As the U.S. Supreme Court itself has done for precision at times, I use

the term ―death eligibility factor‖ to describe these circumstances because it more

clearly articulates what they are, and distinguishes them from the broader use of an

aggravating circumstance in the next required phase.137 Although having their

origins in Furman‘s mandate that the circumstances in which the death penalty be

imposed be narrowed, death eligibility factors have proliferated. 138 In Delaware,



135
    See Godfrey, 446 U.S. at 433; Maynard, 486 U.S. at 363–64; see also White, supra note 13, at
20 n.160.
136
    See Garvey, supra note 45, at 1035; Smith, supra note 48, at 297–98.
137
    See Brown v. Sanders, 546 U.S. 212, 216 n.2 (2006) (―Our cases have frequently employed
the terms ‗aggravating circumstance‘ or ‗aggravating factor‘ to refer to those statutory factors
which determine death eligibility in satisfaction of Furman‘s narrowing requirement. This
terminology becomes confusing when, as in this case, a State employs the term ‗aggravating
circumstance‘ to refer to factors that play a different role, determining which defendants eligible
for the death penalty will actually receive that penalty. To avoid confusion, this opinion will use
the term ‗eligibility factor‘ to describe a factor that performs the constitutional narrowing
function.‖ (emphasis in original) (citations omitted)).
138
    See Robert J. Smith, Forgetting Furman, 100 IOWA L. REV. 1149, 1160 (2015); Jeffrey L.
Kirchmeier, Casting a Wider Net: Another Decade of Legislative Expansion of the Death Penalty
in the United States, 34 PEPP. L. REV. 1, 25 (2006); James S. Liebman & Lawrence C. Marshall,
Less is Better: Justice Stevens and the Narrowed Death Penalty, 74 FORDHAM L. REV. 1607,
1649 (2006).
                                               37
for example, there are now twenty-two circumstances that can make a defendant

death eligible.139

       That next phase, which has been referred to among other things as the

―weighing phase,‖ the ―selection phase,‖ or in my view, the ―ultimate sentencing

phase,‖ is when there is an individualized determination of the sentence for the

defendant.140 This phase was required because the Supreme Court made clear that

even if a state had narrowed the circumstances for which death was the authorized

punishment to address the concerns raised in Furman, it still could not make death

a mandatory sentence.141 Instead, Furman and the July 2nd cases taken together

mandated that a sentencing phase occur during which all relevant factors bearing

on whether the defendant should live or die must be considered, and during which

the defendant has a constitutional right to effective representation in presenting

evidence mitigating against the imposition of death. In all circumstances, the state

must afford the option for the defendant to be given the comparatively more

merciful option of a lengthy prison sentence as opposed to death.142 As discussed,

these developments and their complexity gave rise to a small number of statutes

that cabined the jury‘s historical role in the death penalty sentencing process. A

notable example was the amendment to Delaware‘s capital sentencing scheme in

139
    See 11 Del. C. § 4209(e)(1).
140
    Smith, supra note 48, at 364–65.
141
    See Douglass, supra note 6, at 1994–95.
142
    See supra notes 83–84 and accompanying text.
                                             38
1991, which eliminated the unanimous jury requirement in capital sentencing as a

direct response to the failure of prosecutors to convince an entire jury to vote for

death in a high-profile case.143 As scholars observed, ―the presumption that judges

would be more willing to than juries to impose capital punishment appeared to

motivate the statutory change to judge sentencing.‖144

       With the intricacy of this two-stage process arose further questions about the

respective role of judge and jury in the sentencing phase process, questions that

came to the fore early in this century in an important non-capital case, which I now

discuss.

                                            VI.

       In 2000, the Supreme Court decided Apprendi, which marked a major shift

in the U.S. Supreme Court‘s Sixth Amendment jurisprudence and created the

momentum behind the line of cases leading directly to Hurst. The relevant facts of

that non-death penalty case were simple. Apprendi, who was white, had pled

guilty to multiple felonies arising from an event in which he fired several bullets

into the home of a black family.145         After holding an evidentiary hearing on

Apprendi‘s intent, the trial judge concluded that Apprendi had been motivated by

143
     See Hans et al., supra note 36, at 75 (the General Assembly eliminated the unanimity
requirement from § 4209 because the jury in a highly publicized murder case could not agree
unanimously on death for any of the four defendants); Joseph T. Walsh, The Limits of
Proportionality Review in Death Penalty Cases, 21 DEL. LAW. 13, 14 (2004). This Court upheld
that amendment in State v. Cohen, 604 A.2d 846 (Del. 1992).
144
    Johnson et al., supra note 40, at 1954.
145
    See Apprendi, 530 U.S. at 469–70.
                                            39
racial bias.146 Under New Jersey law, if a defendant ―acted with a purpose to

intimidate an individual or group of individuals because of race, color, gender,

handicap, religion, sexual orientation or ethnicity,‖ he could be deemed to have

committed a ―hate crime‖ and be eligible for a longer sentence. 147 Thus, the trial

judge found that the ―hate crime‖ sentencing enhancement applied, and the judge

increased Apprendi‘s sentence accordingly.148 The issue the U.S. Supreme Court

faced in Apprendi was whether a judge, as opposed to a jury, could find facts that

increased the defendant‘s maximum sentence.149 The Court held that ―[o]ther than

the fact of a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt.‖150       In extending Apprendi into the sentencing guidelines

context in Blakely v. Washington,151 the Supreme Court explained ―that the

‗statutory maximum‘ for Apprendi purposes is that maximum sentence a judge

may impose solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant. . . . In other words, the relevant ‗statutory maximum‘ is not the




146
    See id. at 470–71.
147
    Id. at 469 (quoting N.J. Stat. Ann. § 2C:44-3(e) (West Supp. 1999–2000)) (internal quotation
marks omitted).
148
    See id. at 471.
149
    See id. at 469.
150
    Id. at 490.
151
    542 U.S. 296 (2004).
                                              40
maximum sentence a judge may impose after finding additional facts, but the

maximum he may impose without any additional findings.‖152

       Shortly after Apprendi, the Supreme Court decided Ring v. Arizona,153 which

applied Apprendi for the first time to the death penalty sentencing process.154 Ring

was a case in which the Court was again faced with the constitutionality of the

Arizona capital sentencing scheme that it had upheld against both Sixth and Eighth

Amendment challenges in Walton.155 Ring confirmed that Apprendi‘s rule extends

to the death context, reasoning that ―[c]apital defendants, no less than noncapital

defendants . . . , are entitled to a jury determination of any fact on which the

legislature conditions an increase in their maximum punishment.‖156 In other

words, the Court explained, ―[i]f a State makes an increase in a defendant‘s

authorized punishment contingent on the finding of a fact, that fact—no matter

how the State labels it—must be found by a jury beyond a reasonable doubt.‖157

And then, recognizing that Walton and Apprendi were irreconcilable, Ring

―overrule[d] Walton to the extent that it allows a sentencing judge, sitting without a

jury, to find an aggravating circumstance necessary for imposition of the death



152
    Id. at 303–04 (emphasis in original).
153
    536 U.S. 584.
154
    See W. David Ball, Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and
the Meaning of Punishment, 109 COLUM. L. REV. 893, 896–97 (2009).
155
    See supra notes 119–122 and accompanying text.
156
    Ring, 536 U.S. at 589.
157
    Id. at 602.
                                             41
penalty.‖158 The Court held that ―[b]ecause Arizona‘s enumerated aggravating

factors operate as ‗the functional equivalent of an element of a greater offense,‘ the

Sixth Amendment requires that they be found by a jury.‖159

                                           VII.

                                           A.

       Ring occasioned one of the last major changes to Delaware‘s own death

penalty statute, and is the logical point at which to explain what our current statute

provides. As of Ring, the Delaware statute had last been amended in relevant part

in 1991 and provided that the jury‘s findings as to whether any death eligibility

factors existed and whether the aggravating factors outweighed the mitigating

factors were just advisory.160 The sentencing judge had the final say in both the

eligibility and ultimate sentencing stages.161 Delaware‘s approach was logical in

light of the post-Furman decisions. By providing that only certain homicides that

involved statutorily defined circumstances would make a defendant eligible for the

death penalty,162 the statute addressed the need to narrow the class of defendants

who could be executed. By providing for a sentencing phase during which those

factors that aggravated toward the death penalty and those that mitigated against it


158
    Id. at 609.
159
    Id. (internal citation omitted) (quoting Apprendi, 530 U.S. at 494 n.19).
160
    See Brice v. State, 815 A.2d 314, 320 (2003).
161
    See 11 Del. C. § 4209(d) (1991); S.B. 79, 137th Gen. Assemb., Reg. Sess. (Del. 1991); S.B.
449, 141st Gen Assemb., Reg. Sess. (Del. 2002).
162
    See 11 Del. C. § 4209(d)(1)(a) (1991).
                                             42
would be rationally considered,163 the Delaware statute addressed the constitutional

mandate that a death sentence not be mandatory, and instead be the product of a

rational, individualized process whereby any mitigating factor could be considered.

And, the statute also provided for an appellate process of proportionality review as

a further safeguard against the arbitrary imposition of the death penalty. 164

       In Ring itself, the U.S. Supreme Court took note that Delaware‘s

then-existing capital sentencing scheme was different from the Arizona statute it

was addressing. The Ring Court explained that Delaware was one of four ―hybrid

systems, in which the jury renders an advisory verdict but the judge makes the

ultimate sentencing determinations.‖165 But Ring seemed to make Delaware‘s

statute vulnerable because the jury‘s determination as to eligibility was not

necessary, just advisory. Thus, the General Assembly amended Delaware‘s death

penalty statute, § 4209, to reflect its current form. The amendment changed the

jury‘s role in the eligibility phase ―from one that was advisory under the 1991

version of § 4209 into one that is now determinative as to the existence of any

statutory aggravating circumstances [i.e., death eligibility factors].‖166



163
    See id. § 4209(d)(1)(b).
164
    See id. § 4209(g).
165
    Ring, 636 U.S. at 608 n.6.
166
    Brice v. State, 815 A.3d 314, 320 (Del. 2003); see also House Debate on S.B. 449, 141st Gen.
Assembly (Del. 2002) (statement on behalf of the Delaware Department of Justice); Senate
Debate on S.B. 449, 141st Gen. Assembly (Del. 2000) (statement on behalf of the Delaware
Department of Justice).
                                              43
       One year after Ring and the accompanying amendment to § 4209, this Court

decided Garden v. State,167 which impelled an amendment that went in the other

direction and reduced the jury‘s role in the death penalty sentencing process even

further. In Garden, this Court reviewed the Superior Court‘s imposition of a death

sentence despite the jury‘s recommendation of life sentences by ten-to-two and

nine-to-three votes on intentional murder and felony murder charges, respectively.

In response to that judicial override, Garden reversed the sentence of death and

held ―that a trial judge must give a jury recommendation of life ‗great weight‘ and

may override such a recommendation only if the facts suggesting a sentence of

death are so clear and convincing that virtually no reasonable person could

differ.‖168 As was the case with the legislation in 1991 eliminating the unanimity

requirement for § 4209,169 the failure of the State to obtain a death sentence

because juror opposition prevented that result led to legislation to diminish the

influence of the cross-section of the community empanelled to decide whether the

defendant was guilty.      To wit, to overrule Garden‘s ―great weight‖ standard,

§ 4209 was amended ―to provide that the jury‘s recommendation shall only be

‗given such consideration as deemed appropriate.‘‖170



167
    815 A.2d 327 (Del. 2003).
168
    Id. at 343.
169
    See supra note 143 and accompanying text.
170
    Michael L. Radelet, Overriding Jury Sentencing Recommendations in Florida Capital Cases:
An Update and Possible Half-Requiem, 2011 MICH. ST. L. REV. 793, 800.
                                            44
       Under the current version of § 4209, the Superior Court holds a separate

hearing to determine whether a defendant found guilty of first degree murder

should be sentenced to death or life imprisonment without parole. Unless the

defendant has waived her right to a jury trial, the jury that found the defendant

guilty is charged with answering two questions: (1) ―[w]hether the evidence shows

beyond a reasonable doubt the existence of at least 1 aggravating circumstance

[i.e., death eligibility factor] as enumerated in subsection (e)‖; and (2) ―[w]hether,

by a preponderance of the evidence . . . , the aggravating circumstances found to

exist outweigh the mitigating circumstances found to exist.‖171

       The jury‘s answers to the two questions in § 4209(c)(3) are used in the two

phases of sentencing described above, the eligibility phase and the ultimate

sentencing phase. The eligibility phase involves only the jury, not the judge.

Specifically, the jury determines whether at least one death eligibility factor exists

beyond a reasonable doubt. ―[T]he jury must be unanimous as to the existence of

that statutory aggravating circumstance [i.e., death eligibility factor].‖172 If the jury

finds that no death eligibility factor exists, the judge must sentence the defendant

to life imprisonment.173 But, if the jury finds that at least one death eligibility




171
    11 Del. C. § 4209(c)(3).
172
    Id. § 4209(c)(3)(b)(1); see also id. § 4209(e)(1).
173
    Id. § 4209(d)(2).
                                                 45
factor exists, then the defendant is death eligible and the process moves on to the

ultimate sentencing phase.174

       Unlike the eligibility phase, under § 4209 the ultimate sentencing phase

involves both the jury and the judge. The ultimate sentencing ―phase does not

increase the maximum punishment, but only ensures that the punishment is

appropriate and proportional.‖175           First, the jury decides ―[w]hether, by a

preponderance of the evidence, after weighing all relevant evidence in aggravation

or mitigation . . . , the aggravating circumstances found to exist outweigh the

mitigating circumstances found to exist.‖176 Then,

       the Court, after considering the findings and recommendation of the
       jury and without hearing or reviewing any additional evidence, shall
       impose a sentence of death if the Court finds by a preponderance of
       the evidence . . . that the aggravating circumstances found by the
       Court to exist outweigh the mitigating circumstances found by the
       Court to exist.177

As discussed, the jury‘s finding as to whether the aggravating circumstances

outweigh the mitigating circumstances ―shall not be binding upon the Court,‖ but

―shall be given such consideration as deemed appropriate by the Court.‖178 The

trial judge thus has the final say in deciding whether a capital defendant is

sentenced to death and need not give any particular weight to the jury‘s view.
174
    Id. § 4209(d)(1).
175
    Swan v. State, 28 A.3d 362, 390 (Del. 2011); see also Reyes v. State, 819 A.2d 305, 317 (Del.
2003).
176
    11 Del. C. § 4209(c)(3)(a)(2).
177
    Id. § 4209(d)(1).
178
    Id.
                                               46
                                             B.

       After § 4209 was amended in the wake of Ring, this Court answered four

certified questions from the Superior Court in Brice v. State.179 Brice found that

the jury‘s finding of a death eligibility factor in the eligibility phase—not the

judge‘s determination in the ultimate sentencing phase—is what makes a defendant

eligible for a death sentence under § 4209:

       Once the jury determines that a statutory aggravating factor exists, the
       defendant becomes death eligible. Although a judge cannot sentence
       a defendant to death without finding that the aggravating factors
       outweigh the mitigating factors, it is not that determination that
       increases the maximum punishment.              Rather, the maximum
       punishment is increased by the finding of the statutory aggravator
       [i.e., death eligibility factor]. At that point a judge can sentence a
       defendant to death, but only if the judge finds that the aggravating
       factors outweigh the mitigating factors. Therefore, the weighing of
       aggravating circumstances against mitigating circumstances does not
       increase the punishment. Rather, it ensures that the punishment
       imposed is appropriate and proportional.180

       Brice also considered the ultimate sentencing phase of the Delaware statute,

which requires the sentencing judge to make her own determination of whether the

aggravating circumstances outweigh the mitigating circumstances, a decision that

is informed by a jury vote but not dictated by it unless the jury majority

recommends a life sentence. In other words, this Court examined the reality that


179
   815 A.3d 314.
180
   Id. at 322 (internal citations omitted); see also Swan, 28 A.3d at 390; Ortiz v. State, 869 A.2d
285, 305–06 (Del. 2005); Reyes, 819 A.2d at 316; Norcross v. State, 816 A.2d 757, 767 (Del.
2003).
                                               47
the sentencing judge could rely on aggravating factors in addition to whatever

death eligibility factors were found by the jury. These factors—which I have

defined as aggravating factors for clarity—need not have been found by the jury.

But, the Court did not view that feature of Delaware‘s capital sentencing scheme as

problematic: ―Ring does not . . . require that the jury find every fact relied upon by

the sentencing judge in the imposition of the sentence.‖181 Thus, as long as the

jury has already found one death eligibility factor as required by Ring, the reality

that a sentencing judge under our statute may consider aggravating factors that the

jury does not find beyond a reasonable doubt ―does not ‗increase‘ the maximum

penalty that a defendant can receive.‖182 In other words, Brice embraced the

reading of Ring summarized by Justice Scalia in his concurrence in that case, in

which he stated:

       What today‘s decision says is that the jury must find the existence of
       the fact that an aggravating factor [i.e., a death eligibility] existed.
       Those States that leave the ultimate life-or-death decision to the judge
       may continue to do so—by requiring a prior jury finding of [an]
       aggravating factor [i.e., a death eligibility factor] in the sentencing
       phase or, more simply, by placing the aggravating-factor
       determination [i.e., death eligibility determination] (where it logically
       belongs anyway) in the guilt phase.183




181
    Brice, 815 A.2d at 322.
182
    Id.
183
    Ring, 536 U.S. at 612–13 (Scalia, J., concurring).
                                                48
                                         VIII.

       This lengthy tour has now arrived at Hurst, the new decision of the U.S.

Supreme Court that our Superior Court considered such a materially new addition

to our nation‘s constitutional jurisprudence to certify us questions covering

essentially the same issues as we confronted in Brice. The reason our learned

colleague did so is obvious from a close reading of Hurst, because Hurst can either

be seen, as I candidly admit, either as a plain application of Ring to a state, Florida,

that did not respond to Ring‘s mandate, or as signaling the recognition that a jury‘s

role in the death penalty process cannot be rigidly confined to the eligibility phase.

       As is now widely known, Hurst held that Florida‘s capital sentencing

scheme was unconstitutional.184 The Florida scheme evaluated in Hurst differed

from Delaware‘s in three material ways. First, Florida‘s statute charged the jury

with deciding by a majority vote both (1) whether a death eligibility factor exists;

and (2) whether the aggravating circumstances outweigh the mitigating

circumstances. Second, Florida‘s statute did not require the jury to decide whether

a death eligibility factor exists beyond a reasonable doubt. And third, a jury under

Florida‘s statute made ―an ‗advisory sentence‘ of life or death without specifying

the factual basis of its recommendation.‖185 In Delaware, by contrast, a jury must


184
  See Hurst, 136 S. Ct. at 619.
185
  Id. at 620 (quoting Fla. Stat. § 921.141(2) (2015)); see also Robin Maher, Hurst v. Florida:
How Much Does the Sixth Amendment Really Protect?, GEO. WASH. L. REV. DOCKET (Jan. 17,
                                             49
find a death eligibility factor unanimously and beyond a reasonable doubt. The

jury in Delaware is then charged with making a non-unanimous decision of

whether the aggravating factors outweigh the mitigating factors, under a

preponderance of the evidence standard. That recommendation, like in Florida, is

advisory,186 but unlike Florida, does not ask jurors to specifically vote whether they

believe death is the appropriate punishment. Despite these differences, there are

important similarities between the capital sentencing scheme struck down in Hurst

and § 4209: ―Both Florida‘s invalidated law and Delaware‘s leave the ultimate

sentencing phase and the final sentencing decision in the hands of a judge. Both

have a jury make a recommendation to the court, but this is merely advisory.‖ 187

       In finding that the Florida capital sentencing scheme was unconstitutional,

the Supreme Court focused on the fact that it required the judge to find facts

because the jury‘s ―recommendation‖ was just that—a recommendation that was

advisory and to which the judge was not bound. The Court explained that ―the

Florida sentencing statute does not make a defendant eligible for death until

‗findings by the court that such person shall be punished by death.‘‖188 That

statute was unconstitutional, the Court explained, because ―[t]he Sixth Amendment


2016),           http://www.gwlr.org/hurst-v-florida-how-much-does-the-sixth-amendment-really-
protect/; Judith L. Ritter, Time to Rethink Delaware’s Death Penalty?, 34 DEL. LAW. 1, 15
(2016).
186
    See 11 Del. C. § 4209(c)–(d).
187
    Ritter, supra note 185, at 16.
188
    Hurst, 136 S. Ct. at 620 (quoting Fla. Stat. § 775.082(1)) (emphasis in original).
                                             50
requires a jury, not a judge, to find each fact necessary to impose a sentence of

death.‖189

       In explaining its understanding of Ring, the Hurst Court observed that

―Ring‘s death sentence . . . violated his right to have a jury find the facts behind his

punishment‖ because ―[h]ad Ring‘s judge not engaged in factfinding, Ring would

have received a life sentence.‖190 The Court then explained:

       As with Timothy Ring, the maximum punishment Timothy Hurst
       could have received without any judge-made findings was life in
       prison without parole. As with Ring, a judge increased Hurst‘s
       authorized punishment based on her own factfinding. In light of Ring,
       we hold that Hurst‘s sentence violates the Sixth Amendment.191

In holding that Florida‘s capital sentencing scheme was unconstitutional, Hurst

expressly overruled its prior decisions addressing Florida‘s death penalty statute in

Spaziano and Hildwin ―in relevant part‖192—both cases in which the Court had

rejected a defendant‘s argument that jury sentencing is constitutionally required in

capital cases: ―Spaziano and Hildwin summarized earlier precedent to conclude

that the Sixth Amendment does not require that the specific findings authorizing

the imposition of the sentence of death be made by the jury. Their conclusion was

wrong, and irreconcilable with Apprendi.‖193 This was a move that some Justices



189
    Hurst, 136 S. Ct. at 619.
190
    Id. at 621.
191
    Id. at 622 (emphasis added).
192
    Id. at 623.
193
    Id. (internal quotation marks omitted).
                                              51
had been advocating for some time.194 But, by overruling those cases only ―in

relevant part,‖ the Court left open the notion that they were problematic only

insofar as Florida had not required a jury to make every fact finding required to

render the defendant eligible for death. The use of the term ―authorizing‖ could be

read as supporting that view, although the term could also be seen as ambiguous

and functionally indistinct from the term ―necessary.‖

       That is, the meaning of Hurst is contestable because it uses language at

critical points in a way that is not necessarily consistent. For example, there is a

portion of Hurst that seems to be a vanilla application of Ring.                      The Court

explained that ―[t]he analysis the Ring Court applied to Arizona‘s sentencing

scheme applies equally to Florida‘s.‖195 But, there are other portions of Hurst

which use broader, or at least less narrowly cabined language, and I understand

these portions to be those which largely motivate the questions posed to us and the

contesting positions of the parties. For example, the Court couched its holding in

broader language, explaining that a jury must ―find each fact necessary to impose a

sentence of death.‖196

       The Supreme Court‘s use of the term ―necessary‖ in Hurst also has

relevance because the author of Hurst, Justice Sotomayor, had earlier issued a
194
    See, e.g., Woodward v. Alabama, 134 S. Ct. 405, 407 (2013) (Sotomayor, J., dissenting from
denial of cert.) (calling for reconsideration of Spaziano); Harris, 513 U.S. at 524–26 (Stevens, J.,
dissenting).
195
    Hurst, 136 S. Ct. at 621–22.
196
    Id. at 619 (emphasis added).
                                                52
dissenting opinion from a denial of certiorari, in which she wrote that the ―required

finding that the aggravating factors of a defendant‘s crime outweigh the mitigating

factors is . . . necessary to impose the death penalty.‖ 197 In other words, if by

―necessary‖ in Hurst, the Supreme Court in fact meant what it said in an

unqualified way, these factors would include the findings that its own

jurisprudence mandate must be made at the ultimate sentencing phase before a

defendant can be given a death sentence. If these necessary findings must be made

by a jury, then the approach taken by Delaware would be problematic.

       Notably, Hurst was not a unanimous decision. It generated a concurrence

from Justice Breyer, who is a passionate defender of judicial sentencing discretion

in the context of non-capital cases, and dissented in both Apprendi and Ring.198 At

the same time, Justice Breyer takes the position, which he anchors in the Eighth

Amendment, that no death penalty sentence can be imposed without ―a jury, not a

judge, mak[ing] the decision to sentence a defendant to death.‖199 ―[T]he danger of

unwarranted imposition of the [death] penalty,‖ Justice Breyer believes, ―cannot be

avoided unless ‗the decision to impose the death penalty is made by a jury rather

than by a single governmental official.‖200 ―Even in jurisdictions where judges are


197
    See Woodward, 134 S. Ct. at 410–11 (Sotomayor, J., dissenting from denial of cert.).
198
    See Apprendi, 530 U.S. at 555 (Breyer, J., dissenting); Ring, 536 U.S. at 613 (Breyer, J.,
dissenting).
199
    Hurst, 136 S. Ct. at 624 (quoting Ring, 536 U.S. at 614 (Breyer, J., dissenting)).
200
     See Ring, 536 U.S. at 618 (Breyer, J., dissenting) (quoting Spaziano, 468 U.S. at 469
(Stevens, J., concurring in part and dissenting in part))).
                                             53
selected directly by the people, the jury remains uniquely capable of determining

whether, given the community‘s views, capital punishment is appropriate in the

particular case at hand.‖201 One can summarize Justice Breyer‘s position this way.

He believes that it is so vital to the fairness, regularity, and non-cruelty of any

administration of the death penalty that it must be preceded by a unanimous

determination by a jury that the defendant should die. He believes that without a

cross-section of the community unanimously agreeing a defendant should die, the

resulting penalty is cruel and unusual, because it so drastically departs from the

American tradition. As I note later, this sounds like an oblique way of saying that

there is a fundamental right to have a jury say you should die before the state can

execute you.

        Finally, Justice Alito dissented in Hurst.          Most importantly for present

purposes, Justice Alito called for reconsideration of Ring because he believes that

there is no Sixth Amendment right to have a jury decide any fact other than those

necessary to guilt.202 Justice Alito then explained that ―even if Ring is assumed to

be correct,‖ he would not extend it to Florida‘s capital sentencing scheme because

of the differences between Florida‘s and Arizona‘s at the time of Ring.203




201
    See id. at 616.
202
    See Hurst, 136 S. Ct. at 625 (Alito, J., dissenting).
203
    Id.
                                                  54
       After the Supreme Court decided Hurst—and after we accepted the certified

question before us—the Court vacated three Alabama death penalty convictions

―in light of Hurst.‖204 Although these orders provide no extensive guidance on

why or how Hurst affected the Alabama convictions, the obvious connection

between these cases and Hurst is that they collectively involve two of the three

capital sentencing schemes that permitted a judge to override a jury‘s

recommendation of a life sentence before Hurst—those of Florida and Alabama.205

The third such scheme is our own.

                                           IX.

                                           A.

       The five certified questions are:

       (1)    Under the Sixth Amendment to the United States Constitution, may a
              sentencing judge in a capital jury proceeding, independent of the jury,
              find the existence of ―any aggravating circumstance,‖ statutory or
              non-statutory, that has been alleged by the State for weighing in the
              selection phase of a capital sentencing proceeding?

       (2)    If the finding of the existence of ―any aggravating circumstance,‖
              statutory or non-statutory, that has been alleged by the State for
              weighing in the selection phase of a capital sentencing proceeding
              must be made by a jury, must the jury make the finding unanimously
              and beyond a reasonable doubt to comport with federal constitutional
              standards?
204
    Johnson v. Alabama, 136 S. Ct. 1837 (2016); Wimbley v. Alabama, __ S. Ct. __, 2016 WL
410937 (May 31, 2016); Kirksey v. Alabama, __ S. Ct. __, 2016 WL 378578 (June 6, 2016).
205
     Woodward, 134 S. Ct. at 407 (Sotomayor, J., dissenting from denial of cert.); Ross
Kleinstuber, ―Only a Recommendation‖: How Delaware Capital Sentencing Law Subverts
Meaningful Deliberations and Jurors’ Feelings of Responsibility, 19 WIDENER L. REV. 321, 325
(2013).
                                            55
      (3)    Does the Sixth Amendment to the United States Constitution require a
             jury, not a sentencing judge, to find that the aggravating
             circumstances found to exist outweigh the mitigating circumstances
             found to exist because, under 11 Del. C. § 4209, this is the critical
             finding upon which the sentencing judge ―shall impose a sentence of
             death‖?

      (4)    If the finding that the aggravating circumstances found to exist
             outweigh the mitigating circumstances found to exist must be made by
             a jury, must the jury make that finding unanimously and beyond a
             reasonable doubt to comport with federal constitutional standards?

      (5)    If any procedure in 11 Del. C. § 4209‘s capital sentencing scheme
             does not comport with federal constitutional standards, can the
             provision for such be severed from the remainder of 11 Del. C.
             § 4209, and the Court proceed with instructions to the jury that
             comport with federal constitutional standards?

      Fundamentally, the first four questions may be summarized this way: Must

any death sentence be preceded by a unanimous jury verdict concluding that after

considering all the relevant aggravating and mitigating factors, the defendant

should suffer execution as his punishment, rather than the comparatively more

merciful option of a lengthy prison sentence? And, if so, must the jury make that

decision beyond a reasonable doubt?

      The advocates before us take dividing positions on these questions and do so

with clarity and skill, and with a close attention to the precedent. From the State‘s

perspective, the answer to the question above is no. The State‘s well-written and

well-argued position is that Hurst must be read contextually and narrowly, and that

its use of the term ―necessary‖ cannot be divorced from other language in the
                                         56
opinion relying on Ring and Apprendi. By ―necessary,‖ says the State, Hurst refers

only to those fact findings necessary to make the defendant statutorily eligible to

receive a death sentence. That is, in the parlance I use, the State argues that the

jury need only determine unanimously and beyond a reasonable doubt that a death

eligibility factor exists. Beyond that point, any role for the jury is entirely optional,

and a state can in fact dispense altogether with a role for the jury, and allow a

judge to use his own reasoned discretion to weigh the aggravating and mitigating

factors and decide whether to impose the death penalty. Put simply, the State

argues that Hurst should be seen as a clean-up case, where a state, Florida—that

did not view Ring as applying to its statute because the Supreme Court had not

overruled its decisions in Spaziano and Hildwin, in which it had upheld Florida‘s

capital sentencing scheme—was informed that it had to abide by Ring. The bright

line for the Sixth Amendment, in the State‘s conception, is that a jury must find

any fact necessary to authorize a form of punishment, for the narrow purpose of

making a defendant eligible for that punishment. By making the defendant eligible

to receive that punishment, though, a jury need not play any role in the ultimate

sentencing phase, even in a capital case. In other words, the State embraces the

reading of Ring given in Justice Scalia‘s concurrence in that case, and argues that

his joinder in the Hurst majority opinion is further evidence of its limited meaning.




                                           57
       By contrast, counsel for Rauf (and several of the amicus curiae) view Hurst

as going beyond Ring, and as standing for the proposition that if any finding of fact

is necessary as a pre-condition to a death sentence, the Sixth Amendment requires

that finding of fact to be made by a unanimous jury. Rauf argues from the plain

language of the Delaware statute that findings of fact that go beyond the existence

of guilt and of a death eligibility factor are ―necessary‖ for a death sentence to be

imposed in Delaware.           Absent factual findings that the aggravating factors

outweigh the mitigating factors, a defendant must be given a life sentence under

the Delaware statute. Thus, these sentencing stage findings are literally ―necessary

to impose a death sentence.‖206 Rauf‘s argument builds on other U.S. Supreme

Court case law, which prevents states from having a statute whereby a death

sentence is the automatic consequence of a guilty verdict, and which requires states

to have a sentencing phase in which all mitigating factors must be rationally

considered and after which the option of giving a non-capital sentence must exist.

       Rauf is joined by amicus curiae, who echo his arguments, but who also make

a more fundamental argument, which is that there is no more fundamentally

important role for a jury fairly drawn from the community than determining

whether a defendant should live or die.207 They read Hurst as recognizing a more


206
   Hurst, 136 S. Ct. at 619.
207
   See, e.g., Br. of Charles Hamilton Houston Institute for Race and Justice at 9–12 (hereinafter
―C. H. Houston Br.‖).
                                               58
essential consideration that has been obscured in the complexity of the

post-Furman world, which is that the Sixth Amendment right to a jury has perhaps

its most powerful importance when the question is whether the defendant should

live or die.

                                          B.

          Against this backdrop of § 4209 and the U.S. Supreme Court‘s capital

sentencing decisions, I explain my answer to the five certified questions. But,

rather than addressing the first four questions in piecemeal fashion, I consider the

broader implications of the federal Constitution and the Supreme Court‘s precedent

addressing it on the role of the judge and the jury under § 4209. The Sixth

Amendment provides:

          In all criminal prosecutions, the accused shall enjoy the right to a
          speedy and public trial, by an impartial jury of the state and district
          wherein the crime shall have been committed, which district shall
          have been previously ascertained by law, and to be informed of the
          nature and cause of the accusation; to be confronted with the
          witnesses against him; to have compulsory process for obtaining
          witnesses in his favor, and to have the assistance of counsel for his
          defense.208

I focus here on the question of who—jury or judge—may make the determination

whether a defendant should receive a death sentence or not because I believe it is

inarguable that the required determination in all contexts where the sentencing

authority can give a defendant death or life involves factual determinations. That

208
      U.S. Const. amend. VI.
                                            59
is clearly so under our own statute, which plainly requires that a specific finding be

made before a death sentence can be issued.209 That finding is whether ―the

aggravating circumstances found to exist outweigh the mitigating circumstances

found to exist.‖210 Our prior decisions have often noted that sentencing decisions,

including those in the death penalty context, involve an exercise of discretion

based on a weighing of facts.211 In doing so, we broke no ground, but simply

recognized an obvious reality reflected broadly in American jurisprudence that the

weighing of aggravating and mitigating factors is ―a clear factfinding directive to

which there is no exception.‖212 Thus, the question in this context is not whether

factual determinations are involved in the weighing phase of capital sentencing,

but whether the Sixth Amendment requires those factual judgments to be made by

a jury.

          In one sense, the answer to the certified questions could be simple. If when

Hurst said ―necessary,‖ it meant that, then Delaware‘s death penalty statute is

209
    See 11 Del. C. § 4209(c)–(d).
210
    Id. § 4209(c)(3).
211
    See, e.g., Zebroski v. State, 715 A.2d 75, 84 (Del. 1998) (―The balancing of aggravating and
mitigating circumstances is not a quantitative exercise, but rather a reasoned judgment as to what
factual situations require the imposition of death and which can be satisfied by life imprisonment
in light of the totality of the circumstances present.‖ (emphasis added) (internal quotation marks
omitted)); Ferguson v. State, 642 A.2d 772, 782 (Del. 1994) (―The weighing of aggravating and
mitigating circumstances involves a qualitative rather than a quantitative consideration of the
circumstances to determine the appropriate punishment. That qualitative process requires that
the jury and the judge carefully consider the specific facts of each case and, when appropriate,
not to give one or more aggravating factors independent weight.‖ (internal quotation marks
omitted) (footnotes omitted)).
212
    Cunningham v. California, 549 U.S. 270, 279 (2007); see also CAMPBELL, supra note 31,
§ 9.3 at 354–59.
                                               60
unconstitutional. Under our statute the findings required to make a defendant

―eligible‖ for the death penalty are not sufficient to enable him to be sentenced to

death. Rather, it is obvious that § 4209 makes other findings necessary. That

necessity is in fact dictated by U.S. Supreme Court precedent.

          In concluding that Hurst requires the invalidation of our state‘s approach to

the death penalty, I do not wish to elide the potency of the other side of the

question. Hurst can be read as having used the loose language of necessity to

describe only what is necessary to make a defendant death eligible, especially

because the statute at issue in Hurst failed on that narrower basis, which

Delaware‘s does not. But, I am reluctant to conclude that the Supreme Court was

unaware of the implications of requiring ―a jury, not a judge, to find each fact

necessary to impose a sentence of death.‖213 If those words mean what they say,

they extend the role of a death penalty jury beyond the question of eligibility.

Even more, these words seem to be the latest spade work in the judicial unearthing

of an unattractive byproduct of a lengthy period of judicial innovation.

          That byproduct is that the Furman line of U.S. Supreme Court precedent has

been a causal factor in impelling a small number of states (of which Delaware is

one) to adopt a death penalty system that would have been fundamentally alien to

the founding generation, a system under which a defendant can be executed even if


213
      Hurst, 136 S. Ct. at 619.
                                            61
a unanimous jury does not believe that is the correct penalty. 214 What has emerged

is a system whereby there is a strange admixture of the role of judge and jury in

this most sensitive of areas—an admixture that allows a defendant to go to his

death without a jury of his peers unanimously concluding that he should do so.

Although perhaps not compelled to do so by the formal logic of Hurst,215 I am

persuaded that it is not tenable under the broader logic of the case, and a

consideration of related provisions of the Constitution, including the Eighth

Amendment, to pretend any longer that this admixture is consistent with the

fundamental guarantee of a jury trial as it was understood throughout most of our

history—one in which ―[t]he Founders viewed juries as so fundamental to the

democratic experience that the right to a jury in criminal trials is the only right

expressly included twice in the Constitution‖216—and as most states still

understand it today.217


214
    See Woodson, 428 U.S. at 289–93; McGautha v. California, 402 U.S. at 200 nn. 10, 11; see
also Green, supra note 17, at 421–25.
215
    Because I admit that Hurst can be read more than one way, I understand why my respected
colleague in dissent views Hurst as simply an application of Ring, and as a case-specific ruling
that a jury must make all findings necessary to make a defendant eligible for the death penalty.
216
    See Kleinstuber, supra note 205, at 329; see also THE DECLARATION OF INDEPENDENCE para.
3 (U.S. 1776) (listing among the reasons for separation from England: ―For depriving us in
many cases, of the benefits of Trial by Jury.‖); Letter from Thomas Jefferson to Thomas Paine
(1789) (―I consider trial by jury as the only anchor yet imagined by man, by which a government
can be held to the principles of its constitution.‖); THOMAS JEFFERSON, NOTES ON THE STATE OF
VIRGINIA 140 (J.W. Randolph ed., 1853) (―[I]f the question relate to any point of public liberty,
or if it be one in which the judges may be suspected of bias, the jury undertake to decide both
law and fact.‖); Statement of John Adams (1774) (―Representative government and trial by jury
are the heart and lungs of liberty.‖); THE FEDERALIST NO. 83 (Alexander Hamilton) (―The friends
and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the
                                                62
       In so finding, I acknowledge the argument, made powerfully by Justice

Scalia and others, that Furman unsettled the traditional practice and that the

deviation from the traditional practice that a jury simultaneously decided guilt and

punishment resulted from the decisions of three justices in Furman that said that

the death penalty could be imposed only if the sentence is imposed in some non-

arbitrary way.218 In Furman and the decisions that followed it, the Supreme Court

said that states could not find that certain crimes, such as intentional murder, were


value they set upon the trial by jury . . . .‖); Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4 (1794)
(Chief Justice John Jay instructed the jury: ―It may not be amiss, here, Gentlemen, to remind
you of the good old rule, that on questions of fact, it is the province of the jury, on questions of
law, it is the province of the court to decide. But it must be observed that by the same law,
which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to
take upon yourselves to judge of both, and to determine the law as well as the fact in
controversy. On this, and on every other occasion, however, we have no doubt, you will pay that
respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that
juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best
judges of law. But still both objects are lawfully, within your power of decision.‖); Zylstra v.
Corp. of Charleston, 1 S.C.L. (1 Bay) 382, 389 (1794) (―[T]he trial by jury is a common law
right; not the creature of the constitution, but originating in time immemorial; it is the inheritance
of every individual citizen, the title to which commenced long before the political existence of
this society; and which has been held and used inviolate by our ancestors in succession from that
period to our own time; having never been departed from, except in the instances before
mentioned. This right then, is as much out of the reach of any law, as the property of the citizen;
and the legislature has no more authority to take it away, than it has to resume a grant of land
which has been held for ages.); Klein & Steiker, supra note 45, at 265 (―Throughout this
country‘s history, judge sentencing has been the norm in the non-capital context, and jury
sentencing has been the norm in capital cases.‖); Hoffman, supra note 6, at 967; Roger Roots,
The Rise and Fall of the American Jury, 8 SETON HALL CIRCUIT REV. 1, 6 (2011) (―‗When courts
exercised their properly judicial (as opposed to administrative) functions, the decision-makers
were juries. The most striking feature of colonial sentencing was the bare modicum of authority
that judges actually exercised.‘‖ (quoting JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND
THE IDEAS IN THE MAKING OF THE CONSTITUTION 30 (1996))).
217
    See Woodward, 134 S. Ct. at 407 (Sotomayor, dissenting from denial of cert.) (citations
omitted)); 6 LAFAVE, ET AL., supra note 12, § 26.2(b), at 699; see also Lillquist, supra note 6, at
650.
218
    See, e.g., Ring, 536 U.S. at 610 (Scalia, J. concurring).
                                                 63
so heinous that a verdict of guilt automatically resulted in a death sentence. 219

Instead, each defendant, regardless of whether he committed an intentional murder,

had a right to have the sentencing authority consider all mitigating factors and

weigh them against the aggravating factors.220 And, of course, the full bite of

Strickland v. Washington221 enforced the duty of counsel to present those factors

with effectiveness. Not only that, to avoid arbitrariness, statutes were revised to

include procedures such as the proportionality review as a way to ensure that

capital punishment was meted out non-capriciously.222 It was these and other

mandates that states like Delaware reacted to in shaping their current death penalty

statutes. Even my long earlier account of the evolution of past death penalty

jurisprudence slights the complexity of the law in this area. For present purposes,

what must be acknowledged is that much effort has been expended by many states

since Furman, including by our own,223 to design procedures that complied with

the intricate Supreme Court case law designed to ensure that capital sentences

would only issue in conformity with the Constitution.

       Obscured in the complexity of the Furman line of cases, however, was

something fundamental:         The overwhelming trend before 1972 was that a


219
    See supra note 84 and accompanying text.
220
    See supra notes 85, 91–92 and accompanying text.
221
    466 U.S. 668 (1984).
222
    See Garvey, supra note 45, at 997–98; Liebman, supra note 52, at 28; supra note 69 and
accompanying text.
223
    See Johnson et al., supra note 40, at 1931; Hans et al., supra note 36, at 73–78 (same).
                                            64
defendant was not sentenced to death without the support of a unanimous jury of

the defendant‘s peers determining that was appropriate.224                   Scholars225 and

judges226 have set forth this history in compelling terms. In fact, the U.S. Supreme

Court itself expressed the importance of jury sentencing in capital cases in Winston

v. United States227 in 1899:

       The authority of the jury to decide that the accused shall not be
       punished capitally is not limited to cases in which the court or the jury
       is of opinion that there are palliating or mitigating circumstances. But
       it extends to every case in which, upon a view of the whole evidence,
       the jury is of opinion that it would not be just or wise to impose
       capital punishment. How far considerations of age, sex, ignorance,
       illness, or intoxication, of human passion or weakness, of sympathy or
       clemency, or the irrevocableness of an executed sentence of death, or
       an apprehension that explanatory facts may exist which have not been
       brought to light, or any other consideration whatever, should be
       allowed weight in deciding the question whether the accused should
       or should not be capitally punished, is committed by the act of
       congress to the sound discretion of the jury, and of the jury alone.228

And, as noted above,229 the Supreme Court in 1968 described the jury‘s role in

capital cases as ―express[ing] the conscience of the community on the ultimate

question of life or death.‖230



224
    See supra notes13–15, 45 and accompanying text.
225
    See, e.g., Smith, supra note 52, at 287–91; Lillquist, supra note 6, at 641–52; The Changing
Role of the Jury in the Nineteenth Century, 74 YALE L.J. 170, 170–74 (1964).
226
    See, e.g., Woodson, 428 U.S. at 289–93 (Stewart, J.); Hoffman, supra note 6, at 963–68.
227
    172 U.S. 303 (1899).
228
    Id. at 313.
229
    See supra note 44 and accompanying text.
230
    Witherspoon, 391 U.S. at 519; see also Furman, 408 U.S. at 439–40 (Powell, J., dissenting);
Gregg, 428 U.S. at 181.
                                              65
       That juries historically acted as the sentencing authorities in capital cases is

not an anomaly. Rather, it makes sense. After all, it was the jury‘s role as the

conscience of the community on issues of proportionality and mercy that was

recognized as making its role in capital sentencing so vital. 231 As Declaration of

Independence signee and future federal judge Francis Hopkinson wrote in 1786:

       [The authority to sentence] can no where be lodged so safely as with
       the jury who find the fact. The proportion of punishment, equitably
       due according to the nature of the offence, is not a question involved
       in the technical subtleties of the law; but arises from the particular
       circumstances of the case, . . . and an honest, impartial, and
       conscientious jury, are as competent to this purpose, as the most
       profound judge. They will necessarily have heard the state of the
       whole matter, with the arguments for the prosecution, and in behalf of
       the prisoner; and being a temporary body, accidentally brought
       together, and impaneled for the occasion, are more likely to do
       substantial justice, than a judge who is so hackneyed in criminal
       prosecutions. . . .232

Given the significance that jury sentencing has historically had, then, it should

come as no surprise that ―jury sentencing is . . . the norm for capital cases.‖233

       Further, one need look no further than the aggravating and mitigating factors

that the U.S. Supreme Court approved for use in making capital sentencing

determinations to see the factual nature of questions involved and how they came

to bear on the issue of what punishment the defendant should suffer. As to

231
    See Winston, 172 U.S. at 313; see also Carr, 136 S. Ct. at 642; Andres, 333 U.S. at 753–54
(Frankfurter, J., concurring); Garden, 815 A.2d at 344; White, supra note 13, at 30–31.
232
    2 THE MISCELLANEOUS ESSAYS AND OCCASIONAL WRITINGS OF FRANCIS HOPKINSON, ESQ.
101–02 (1792).
233
    6 LAFAVE, ET AL., supra note 12, § 26.2(b), at 699.
                                             66
aggravating factors, for example, the sentencing authority may consider ―whether

the crime was committed in the course of one of several enumerated felonies,

whether it was committed for pecuniary gain, whether it was committed to assist in

an escape from custody or to prevent a lawful arrest, and whether the crime was

especially heinous, atrocious, or cruel.‖234 As to mitigating factors, approved

considerations include ―whether the defendant has a prior criminal record, whether

the defendant acted under duress or under the influence of extreme mental or

emotional disturbance, whether the defendant‘s role in the crime was that of a

minor accomplice, and whether the defendant‘s youth argues in favor of a more

lenient sentence than might otherwise be imposed.‖235 The core of each of these

questions is a factual inquiry that a cross-section of the community is best suited to

make.236   And on an even more basic level that extends beyond the capital

sentencing context, appellate courts give enormous deference to a judge‘s or jury‘s

sentencing determination precisely because of the factual nature of the issues

involved in sentencing generally and the inescapable requirement for the




234
    Proffitt, 428 U.S. at 251; see also Schriro v. Summerlin, 542 U.S. 348, 361–62 (2004)
(Breyer, J., dissenting).
235
    Proffitt, 428 U.S. at 251.
236
    See Carr, 136 S. Ct. at 642; Stevenson, supra note 45, at 1121.
                                           67
sentencing authority to apply its discretionary sense of conscience and mercy to the

case at hand.237

       In my view, Hurst has starkly revealed a perverse result of some of the

post-Furman efforts to adopt capital sentencing schemes that are constitutionally

satisfactory, which is that perhaps the most fundamental protection of the Sixth

Amendment has been dropped from the panoply of rights accorded to the

defendant—the right to be put to death only if twelve members of his community

agree that should happen.238 There are, of course, reasons why this fundamental

issue has been elided. They include the reality that for most crimes, judges make

the key sentencing determination. Times have changed greatly since the founding,

when prison sentences were rare, and with changing times has come a diminution

(although by no means an elimination)239 of statutorily mandated sentences. Some

cognitive dissonance can be caused by holding that, unlike other sentencing

options, a sentence of death may only be issued consistent with the Sixth

Amendment if the jury itself believes that is appropriate.

237
    See 24 C.J.S. Criminal Law § 2374 Westlaw (database updated 2016); see also Caldwell v.
Mississippi, 472 U.S. 320, 340 n.7 (1985); Dorszynski v. United States, 418 U.S. 424, 431
(1974); 3 CHARLES ALAN WRIGHT ET AL., FED. PRAC. & PROC. CRIM. § 552 (4th ed. 2016).
238
    See Gregg, 428 U.S. at 190; Ring, 536 U.S. at 616 (Breyer, J., concurring); Harris, 513 U.S.
at 526 (Stevens, J., dissenting); Gillers, supra note 70, at 89; MANDERY, supra note 8, at 164
(internal quotation marks omitted)); see also Woodward, 134 S. Ct. at 410 (Sotomayor, J.,
dissenting from denial of cert.).
239
    E.g., Quick Facts: Mandatory Minimum Penalties, 28 FED. SENT. R. 217, 217 (2016) (of the
nearly 76,000 cases reported to the U.S. Sentencing Commission in 2014, offenders in 23.6% of
cases were ―convicted of an offense carrying a mandatory minimum penalty,‖ and at sentencing,
13.6% of offenders ―remained subject to a mandatory minimum penalty‖).
                                              68
       But if ever Emerson‘s famous maxim had purchase, it would be here. The

Supreme Court has long said that ―death is different.‖240 Furman was based on

that notion, and however Balkanized the five votes in Furman were, that case has

remained part of our nation‘s jurisprudence for forty-four years.241 Many cases

recognize that the Constitution‘s protections apply with special force to capital

cases, because of their uniquely high stakes.242 No doubt there are Justices who

have disclaimed any explicit reliance on the distinction between a case involving a

potential for a death sentence and one involving only potential incarceration. Still,

it is easy to say that the approach taken in, for example, Strickland cases—which

suggest that what an attorney must do to be effective in a death penalty case

involves greater effort than in a non-capital case243—arises from the recognized

principle that when what is at stake is of greater importance, what is a reasonable

effort must be measured against that reality. Of course, that is another way in this



240
    Many cases stand for this proposition. E.g., Streetman v. Lynaugh, 484 U.S. 992, 995 (1988);
Ford v. Wainwright, 477 U.S. 399, 411 (1986); see also Beck v. Alabama, 447 U.S. 625, 637
(1980); Rummel v. Estelle, 445 U.S. 263, 272 (1980); Gardner v. Florida, 430 U.S. 349, 357–58
(1977); Harmelin v. Michigan, 501 U.S. 957, 993–94 (1991); Pennell v. State, 604 A.2d 1368,
1375 (Del. 1992); see also Scott W. Howe, The Futile Quest for Racial Neutrality in Capital
Selection and the Eighth Amendment Argument for Abolition Based on Unconscious Racial
Discrimination, 45 WM. & MARY L. REV. 2083, 2157 (2004).
241
    See Glossip v. Gross, 135 S. Ct. 2726, 2759–64 (2015); Wright v. State, 633 A.2d 329, 336–
37 (Del. 1993) (same).
242
    See Gilmore v. Taylor, 508 U.S. 333, 342 (1993); Murray v. Giarratano, 492 U.S. 1, 8–9
(1989) (quoting Lockett, 438 U.S. at 604) (internal citations omitted)); Ake v. Oklahoma, 470
U.S. 68, 86 (1985) (Burger, C.J., concurring); Walton, 497 U.S. at 657 (Scalia, J., dissenting).
243
    See Williams v. Taylor, 529 U.S. 362, 396–99 (2000); Wiggins v. Smith, 539 U.S. 510, 523–
25 (2003); Rompilla v. Beard, 545 U.S. 374, 388–89 (2005); Douglass, supra note 6, at 1986–87.
                                              69
context of taking into account that death is different, a point the Supreme Court has

made by:

            Narrowing the class of crimes for which the death penalty may be
             imposed by holding that death may not be imposed for rape of an
             adult woman,244 kidnapping,245 murder where the defendant had not
             killed, attempted to kill, or intended to kill anyone,246 and rape of a
             child that does not result in the child‘s death;247

            Narrowing the class of defendants eligible for the death penalty by
             holding that the death penalty may not be imposed upon defendants
             who are insane,248 mentally retarded,249 or minors;250 and

            Continually explaining that capital sentencing requires special
             considerations and rules that are not applicable in non-capital
             sentencing, including special hearsay considerations,251 special
             consideration of mitigating aspects of a defendant‘s character,252 and
             mandatory consideration of lesser-included offenses.253

244
    See Coker v. Georgia, 433 U.S. 584, 592 (1977).
245
    See Ebheart v. Georgia, 433 U.S. 917, 917 (1977).
246
    See Enmund, 458 U.S. at 798–801; see also Harmelin, 501 U.S. at 994.
247
    See Kennedy v. Louisiana, 554 U.S. 407, 412 (2008).
248
    Ford v. Wainwright, 477 U.S. 399, 410 (1986).
249
    Atkins v. Virginia, 536 U.S. 304, 321 (2002).
250
    See Roper v. Simmons, 543 U.S. 551, 568 (2005); see also Thompson v. Oklahoma, 487 U.S.
815, 838 (1988).
251
    See Green v. Georgia, 442 U.S. 95, 97 (1979).
252
    See Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality).
253
    See Beck, 447 U.S. at 627; see also Powell v. Alabama, 287 U.S. 45, 71 (1932) (―[I]n a capital
case, where the defendant is unable to employ counsel, and is incapable adequately of making
his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of
the court, whether requested or not, to assign counsel for him as a necessary requisite of due
process of law; and that duty is not discharged by an assignment at such a time or under such
circumstances as to preclude the giving of effective aid in the preparation and trial of the case.‖);
Williams v. Florida, 399 U.S. 78, 103 (1970) (holding that the Sixth Amendment does not
require the use of a jury of twelve in noncapital cases); Gardner, 430 U.S. at 362 (holding that a
death sentence imposed even in part upon information which the offender had no opportunity to
deny or explain violates the defendant‘s due process); Roberts v. Louisiana, 431 U.S. 633, 637–
38 (1977) (holding that mandatory death penalty for a particular crime violates the Eighth
Amendment); Presnell v. Georgia, 439 U.S. 14, 15–17 (1978) (per curiam) (holding that death
sentence cannot be based on an aggravating factor that was previously used to establish guilt);
                                                70
For present purposes, the precise reason why that inspires the differential approach

is immaterial. The important thing is the undisputed reality that the Supreme Court

often applies the protections of the Constitution differently to death penalty cases

than to other criminal cases.254

       Although it might be possible to resolve the case before us on the narrow

basis we did in Brice by qualifying the broad use of ―necessary‖ in Hurst to mean

only necessary to death eligibility, I believe that would involve ignoring the core

issue that Hurst and its predecessor cases have laid bare, which is how it can be


Godfrey v. Georgia, 446 U.S. 420, 428–29 (1980) (because of the death penalty‘s unique nature,
the Constitution requires that states clearly define the aggravating factors that can result in death
sentences); Caldwell v. Mississippi, 472 U.S. 320, 341 (1985) (the Eighth Amendment prohibits
a death sentence determination to be made by a jury which is told that the ultimate responsibility
for determining the appropriateness of death rests with appellate courts); Turner v. Murray, 476
U.S. 28, 36–37 (1986) (because of ―the special seriousness of the risk of improper sentencing in
a capital case,‖ ―a capital defendant accused of an interracial crime is entitled to have prospective
jurors informed of the race of the victim and questioned on the issue of racial bias‖); Sumner,
483 U.S. at 77 (answering question that was expressly reserved in Roberts v. Louisiana and
holding that the Eighth Amendment prohibits a mandatory death sentence for murder in prison
by an inmate serving a life sentence); Burger v. Kemp, 483 U.S. 776, 785 (1987) (―Our duty to
search for constitutional error with painstaking care is never more exacting than it is in a capital
case.‖); Mills v. Maryland, 486 U.S. 367, 377 (1988) (―In reviewing death sentences, the Court
has demanded even greater certainty that the jury‘s conclusions rested on proper grounds.‖);
Lankford v. Idaho, 500 U.S. 110, 127 (1991) (defendant‘s ―lack of adequate notice that the judge
was contemplating the imposition of the death sentence‖ violated the defendant‘s constitutional
rights); Simmons v. South Carolina, 512 U.S. 154, 168–69 (1994) (when a capital defendant‘s
future dangerousness is at issue and the only alternative sentence to death is life imprisonment
without possibility of parole, the defendant has the right to inform the jury of her ineligibility of
parole); see also 1 LAFAVE, ET AL., supra note 12, § 1.8(e), at 415–17; 6 LAFAVE, ET AL., supra
note 12, § 26.1(b), at 673–76.
254
    For an overview of how the review of capital sentences is treated differently than the review
of non-capital sentences, a topic which the U.S. Supreme Court has not directly spoken about but
which state courts have addressed, see 24 C.J.S. Criminal Law §§ 2374–75 Westlaw (database
updated 2016); see also ARTHUR W. CAMPBELL, LAW OF SENTENCING § 14.4, at 579–82 (3d ed.
2004).
                                                71
consistent with the Sixth Amendment (or for that matter the Eighth Amendment)

for a state to deny a defendant the right to have a jury make the determination

whether he should live or die. It is only by reference to the intricate post-Furman

jurisprudence of the U.S. Supreme Court that I can rationalize a justification for

current practice.255      That rationalization is this unsatisfactory one:               Having

interpreted the Constitution to make states comply with procedures after Furman

that were not recognized before it, it would be unfair to make states do so while

requiring them to condition any death sentence on a unanimous jury verdict to that

effect.

          This is not to say that close consideration of complex case law is not

important. But, it is to say that when much of that case law has slighted one of the

most central protections of the Sixth Amendment in the most compelling of

contexts,256 a consideration of the Constitution itself and its purposes is more

important.257     And the cursory rejection of the Sixth Amendment claims in


255
    See Gillers, supra note 70, at 18 (―[E]ach of the eight states currently opting for judge
sentencing made that choice after Furman. Each had previously embraced jury sentencing in
some form. Their adoption of judge sentencing is an apparent attempt to meet Furman‘s unclear
commands.‖); Ritter, supra note 185, at 16 (―There is a rational argument that Apprendi requires
jury verdicts for all aggravating circumstances because these factual findings expose a defendant
to a death rather than a life sentence.‖).
256
    See Stevenson, supra note 45, at 1103 (―Looking back on the entire line of pre-Ring cases on
the right to jury sentencing in capital cases, it is apparent that the die was indelibly cast in
Proffitt [v. Florida, 428 U.S. 242 (1976)] and Spaziano.‖).
257
    See David A. Strauss, Foreword: Does the Constitution Mean What It Says?, 129 HARV. L.
REV. 1, 29 (2015) (―Implicit in all of this [discussion of constitutional interpretation] is Chief
Justice Marshall‘s famous statement that ‗it is a constitution we are expounding.‘ We should not
expect to treat the Constitution as if it were any ordinary text. But Chief Justice Marshall‘s
                                               72
Spaziano and Hildwin by conclusory language without persuasive reasoning for

support is a gruel too thin to sustain the failure to recognize the vital importance of

the jury‘s role in the capital sentencing process.             Hurst, of course, overruled

Spaziano and Hildwin only in relevant part, but I cannot discern interpretive

wisdom in those cases that survives Hurst, if it was ever existent.258 And to the

extent early post-Furman cases like Proffitt were grounded in the hypothesis that

judges would be better positioned to ensure the proportional, non-discriminatory

application of the death penalty than unanimous juries drawn from the


dictum is just the starting point. The idea is to see, as best we can, what we are doing when we
‗expound‘ the Constitution. Expounding the U.S. Constitution means operating in a mixed
system that comprises precedent as well as the text, and in which provisions of the Constitution
often, as I have suggested, seem to function roughly in the same way as precedents.‖ (quoting
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819)) (emphasis in original)); see also
Duncan, 391 U.S. at 155–56 (―The guarantees of jury trial in the Federal and State Constitutions
reflect a profound judgment about the way in which law should be enforced and justice
administered. A right to jury trial is granted to criminal defendants in order to prevent
oppression by the Government. Those who wrote our constitutions knew from history and
experience that it was necessary to protect against unfounded criminal charges brought to
eliminate enemies and against judges too responsive to the voice of higher authority. The
framers of the constitutions strove to create an independent judiciary but insisted upon further
protection against arbitrary action. Providing an accused with the right to be tried by a jury of
his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and
against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense
judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge,
he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions
reflect a fundamental decision about the exercise of official power—a reluctance to entrust
plenary powers over the life and liberty of the citizen to one judge or to a group of judges.‖).
258
    See Douglass, supra note 6, at 1985 (―The Court‘s Sixth Amendment ruling is remarkable for
its brevity and, I suggest, for its shallow analysis. The portion of the opinion dealing with the
Sixth Amendment occupies only two paragraphs. It makes no mention of the constitutional text.
It says nothing of the history, origin, and purpose of the Sixth Amendment right to a jury. It
makes no attempt to explain, distinguish, or limit Witherspoon. . . . [T]he sum of Spaziano‘s
Sixth Amendment analysis is merely that (a) the principal issue in capital sentencing is
essentially the same as ordinary sentencing, and (b) there has never been a right to a jury for
ordinary sentencing.‖).
                                               73
community,259 empirical evidence since then seems to have contradicted that

prediction.260 As one scholar has explained:

       [W]hen it comes to capital cases, there is no historical support for the
       line that Ring attempts to draw between factfinding to establish death
       eligibility, on the one hand, and the ultimate sentencing, or selection
       decision, on the other. There simply was no eighteenth-century
       practice that limited juries to a purely factfinding role, while granting
       judges the ultimate power to choose a death sentence. To the
       contrary, in 1791—and indeed for more than a century thereafter—the
       unified nature of capital trials left the ultimate decision of life or death
       in the hands of juries.261

       To my mind, the deeper logic of Apprendi, Ring, and Hurst cannot be

confined neatly to the death eligibility stage of a capital case.262 That confinement


259
    See Proffitt, 428 U.S. at 252 (―[I]t would appear that judicial sentencing should lead, if
anything, 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.‖ (internal citation
omitted)).
260
    See, e.g., Hoffman, supra note 6, at 985–90; Iontcheva, supra note 17, at 356–60. As our
own state‘s experience since Furman shows, reductions in the role of the jury have not been
inspired by any error-reducing motive, but instead to make it easier for the state to obtain a death
a sentence. See supra note 143 and accompanying text. Scholars suggest that this has also been
a factor in other states‘ impingement on juries‘ ability to make the ultimate life or death
decision. See, e.g., Smith, supra note 48, at 294.
261
    Douglass, supra note 6, at 2022.
262
    See Smith, supra note 48, at 364–65 (―Theoretically, capital sentencing proceedings can be
disaggregated into two discrete issues: whether the defendant‘s crime is eligible for the death
penalty (aggravation) and, if so, whether the defendant nonetheless lacks the moral culpability
necessary for the ultimate sanction (mitigation). In the real world of litigation, however, the two
issues are not so neatly divided. Rather, the issue at any capital sentencing hearing is the
singular one of whether or not the defendant should be put to death.‖); White, supra note 13, at
30 (―[F]rom a functional perspective, the content of the specific aggravating circumstances
enumerated in a sentencing statute is not critical. Regardless of the specific aggravating and
mitigating circumstances to be determined, the sentencer is required to make an essentially moral
judgment as to whether the defendant should live or die. Thus, it may be argued that the capital
defendant's right to jury trial should not vary depending on the particular aggravating
circumstances to be determined.‖); Hoffman, supra note 6, at 982 (―The Court [in Apprendi and
                                                74
can be done only by accepting an admixture of the historical understanding of the

role of the jury, based on the (understandable, but not ultimately satisfying) notion

that states have to be given wiggle room after Furman, because Furman unsettled

long-standing practices.263

       Likewise, I do not find convincing an attempt to draw fine lines between the

role of the jury as a fact-finder and the role played by the sentencing authority.

Since Furman, it has been understood that whatever authority is given the power to

determine the sentence in a capital case must consider the relevant aggravating and

mitigating factors, balance them, have an option to give life, and base any

determination to give a death sentence on a determination that the aggravating


Ring] seems balanced on an impossibly difficult saddlepoint: if the Sixth Amendment means
anything, it must mean that legislatures cannot deprive criminal defendants of their right to a jury
trial by the simple artifice of labeling elements as ‗sentencing factors‘; yet there seems to be no
principled basis upon which to truly distinguish elements from sentencing factors. This dilemma
is so sharp that the slightest change of perspective or wording by one or two Justices seems to
have a magnified effect on the outcomes in these cases.‖); id. at 1000 (―Of course, the very
reason Apprendi leads to the threshold of jury sentencing is because of the impossible
distinctions it forces the system to make between the jury‘s role in deciding ‗elements‘ and the
judge‘s role in deciding ‗sentencing factors.‘‖).
263
    See Douglass, supra note 6, at 1972–73 (―Unitary capital trials were the norm when the Sixth
Amendment was created. . . . Bifurcation—separating the guilt determination from the choice of
an appropriate penalty—was a procedure that evolved after the founding, initially for noncapital
sentencing. Bifurcation spread as popular resistance to the death penalty and the corresponding
rise of a prison system gave judges new options and new powers in fixing sentences. Bifurcation
came to capital cases quite late in our history, primarily in response to the Court‘s Eighth
Amendment decisions in the mid-1970s. My point in reviewing this history is not that
bifurcation is a bad idea, nor that we must try capital cases today as we did in 1791. My point is
simply that the separation of trial from capital sentencing is a post-constitutional idea that was
born from a movement away from capital punishment, not as a means to implement it. We
cannot assume, as the Court seems to have done, that separation of trial and sentencing is part of
the natural order of things, or that the ‗trial rights‘ of the Sixth Amendment were conceived with
such a separation in mind.‖); supra notes 52, 96, 218 and accompanying text.
                                                75
factors outweigh those mitigating for the comparatively more merciful one. 264 Not

only does this involve a consideration of the facts, it results in a decision of

existential fact: Whether the defendant should live or die. If U.S. Supreme Court

jurisprudence has and therefore can turn on a determination that death is

different,265 it is certainly appropriate to recognize that the decision to give death or

life is the most important one that can be made in any criminal trial, and that the

Sixth Amendment right was understood as of its adoption and for much of our

history as allocating that authority to the jury.266

       As this discussion suggests, the intricacy of the judicially built regime for

capital sentencing has contributed to legal arguments, and even judicial opinions,

built on non-bearing foundations. Perhaps fearing that determining that the Sixth

Amendment requires that any death sentence be predicated at minimum on a

unanimous jury verdict would somehow require a determination that the Sixth

Amendment also requires that a jury determine any criminal sentence, judicial

opinions have taken the view that it is only those fact findings that make a




264
    See Eddings, 455 U.S. at 117; Gregg, 428 U.S. at 206–07.
265
    See supra note 240 and accompanying text.
266
    See Furman, 408 U.S. at 449 (Powell, J., dissenting) (quoting McGautha, 402 U.S. at 207));
see also Witherspoon, 391 U.S. at 518–22 (explaining the vital role a jury plays in capital
sentencing and holding that a jury that excludes jurors opposed to capital punishment violates the
defendant‘s Sixth and Fourteenth Amendment right to an impartial sentencer); supra note 45 and
accompanying text.
                                               76
defendant eligible to receive a death sentence that must be made by a jury.267 In

other words, they read the Sixth Amendment jury right as extending only up to

those findings they view as necessary to establish the minimum and maximum

sentences, even though other trial rights in the Constitution persist throughout the

full sentencing process, whether the sentence is imposed by a judge or jury. 268 The

logic these opinions are missing, however, is that because the U.S. Supreme Court

has held that a consideration of mitigating factors, and a balancing of the

aggravating and mitigating factors are prerequisites to death, the weighing stage of

capital sentencing will always be ―necessary‖ for the imposition of a death

sentence.269 That is, because the constitutionally required weighing phase comes

after the finding of a death eligibility factor, a step necessary for the imposition of

death will always remain after the eligibility phase occurs and no state will be able




267
    See, e.g., Bell v. Cone, 543 U.S. 447, 454 n.6 (2005); United States v. Gabrion, 719 F.3d 511,
533 (6th Cir. 2013); People v. Montour, 157 P.3d 489, 498 (Colo. 2007); Brice, 815 A.2d at 322;
see also Jeffrey Abramson, Death-Is-Different Jurisprudence and the Role of the Capital Jury
OHIO ST. J. CRIM. L. 117, 121 (2004).
268
    See, e.g., Mitchell v. United States, 526 U.S. 314, 327 (1999) (the Fifth Amendment right
against compelled self-incrimination extends to sentencing); McConnell v. Rhay, 383 U.S. 2, 3–4
(1968) (―[The Sixth Amendment right to counsel extends through sentencing and] must . . . be
treated like the right to counsel at other stages of adjudication.‖).
269
    See Woodward, 134 S. Ct. at 411 (Sotomayor, dissenting from denial of cert.); Blystone v.
Pennsylvania, 494 U.S. 299, 322 n.15 (1990) (Brennan, J., dissenting); see also Douglass, supra
note 6, at 2004; Criminal Procedure—Confrontation Clause—Fourth Circuit Finds No Right to
Confrontation During Sentence Selection Phase of Capital Trial, 128 HARV. L. REV. 1027, 1032
(2015); Margery Malkin Koosed, Averting Mistaken Executions by Adopting the Model Penal
Code’s Exclusion of Death in the Presence of Lingering Doubt, 21 N. ILL. U. L. REV. 41, 101
(2001).
                                               77
to draft a statute in which the factual findings that occur after the eligibility phase

are not necessary for death.

       Not only that, I cannot find in the text of the Constitution any dividing line

involving facts necessary to get the ―maximum‖ or ―authorized‖ punishment.

Rather, judges have construed this as a notice requirement inherent in the Due

Process Clause, and as providing a right to have a jury make the factual

determination as to any matter that establishes the maximum authorized

sentence.270 This judicial interpretation led to Justices tussling over whether it is

applicable only to the maximum, or also to the minimum, 271 a debate resolved only

in 2013 in Alleyne v. United States272 in favor of it applying it to both. This

approach is often justified as considering factual findings necessary to set a range

of sentence as an element of the crime itself,273 even though that is formally not the

case. They treat the factors making the defendant eligible for a higher punishment

as essentially ―elements‖ of an ―aggravated‖ version of the underlying crimes. 274

And as to this point, it is not clear what constitutional line exists involving facts

that aggravate toward greater punishment or those that mitigate toward leniency.


270
    See Apprendi, 530 U.S. at 475–76.
271
    Compare Harris, 536 U.S. at 565–66 (finding that juries need only determine any fact that
increases a maximum authorized sentence, and not a fact that increases a minimum sentence),
with id. at 577–78 (Thomas, J., dissenting) (arguing that juries must also determine any fact that
increases a minimum sentence).
272
    133 S. Ct. 2151 (2013) (overruling Harris, 536 U.S. 545).
273
    See id. at 2158.
274
    See id. at 2161.
                                               78
These are both key factual components, and yet only the former are even

considered in Ring and Hurst.275 Perhaps that is because mitigating factors do not

go the maximum sentence. But, a consideration of the mitigating factors is every

bit as crucial—as necessary—to the determination of life or death.276 In Blakely v.

Washington, as noted, the Supreme Court said ―that the ‗statutory maximum‘ for

Apprendi purposes is that maximum sentence a judge may impose solely on the

basis of the facts reflected in the jury verdict or admitted by the defendant.‖277 If

that is so, in the death penalty context, the fact finding necessary to sentence a

defendant to death cannot avoid a consideration of mitigating factors too.

       At the same time, those who would stretch Ring and Hurst—including the

defendant here—embrace arguments that also have a strained quality.                          These

arguments ensnare states in their own efforts to comply in good faith with cases

like Furman. Thus, because every state retains some role for the jury in the capital

275
    See Hurst, 136 S. Ct. at 621–24; Ring, 536 U.S. at 597–609.
276
    In concluding this for myself, I again acknowledge that Hurst can be read in different ways,
and respect that one of my learned colleagues who concurs in part in the result we reach views
Hurst as extending only to those findings that aggravate in favor of a death sentence, and not to
those that mitigate against them. Our difference in this respect is not as important as the effect of
our shared agreement, which is that findings beyond the mere eligibility stage are necessary
before a defendant can be sentenced to death under our statute, and that those findings must be
made by a jury under the logic of Hurst. My principle disagreement with my colleague is that I
believe that the role of the jury in the death penalty process has long encompassed all the factors
bearing on the appropriate punishment, and that frequent references to the role of the jury in
exercising its conscience and sense of mercy cannot be explained solely by the jury‘s role in
deciding facts in the strict sense of how a crime was committed. Instead, I believe it extended to
all factors, including those personal to the defendant, bearing on the jury‘s sense of the
blame-worthiness of the crime and the fitting punishment for it. See, e.g., Winston, 172 U.S. at
310–12; Witherspoon, 391 U.S. at 528.
277
    Blakely, 542 U.S. at 303 (emphasis in original).
                                                79
sentencing process, and because Supreme Court jurisprudence such as Woodson

requires that any death sentence be premised upon a consideration of whether the

aggravating factors outweigh those in mitigation, gotcha arguments with a

somewhat artificial quality naturally arise.278             Seizing on the reality that any

ultimate and rational sentencing determination that involves the discretion to give a

heavier or lighter punishment will involve the sentencing authority‘s exercise of

weighing the circumstances that justify a greater sentence against those counseling

for a lesser one, advocates can logically argue that any death sentence must be

made by a jury.279 Why? Because the Supreme Court-mandated default is that a

defendant receive a life, not death sentence, unless it is ultimately found that the

aggravating circumstances outweigh those in mitigation. As the Supreme Court

noted in Kansas v. Marsh,280 ―the State always has the burden of demonstrating


278
    For example, it is possible to form this gotcha syllogism that has the effect of grounding a
holding that a unanimous jury verdict must buttress any death penalty judgment. That would go
like this. States cannot make the death penalty the mandatory punishment for any crime. See
Woodson, 428 U.S. at 303. Nor can a state execute a defendant before both the aggravating and
mitigating factors are fairly considered, and rationally weighed against each other and the factors
that weigh in favor of death are found to outweigh those mitigating against it. See id. at 303–04;
Jurek, 428 U.S. at 271. As a result, the default penalty will always be life imprisonment, absent
a specific fact intensive inquiry beyond the stage where guilt and even death eligibility is the sole
factor. See Marsh, 548 U.S. at 179. Thus, as this would go, when you put together all the
Supreme Court cases, a jury must now determine whether any defendant should get the death
penalty.
279
    See, e.g., Hoffman, supra note 6; Iontcheva, supra note 17; Sam Kamin & Justin Marceau,
The Facts About Ring v. Arizona and the Jury’s Role in Capital Sentencing, 13 U. PA. J. CONST.
L. 529 (2011); Betrall L. Ross II, Reconciling the Booker Conflict: A Substantive Sixth
Amendment in a Real Offense Sentencing System, 4 CARDOZO PUB. L. POL‘Y & ETHICS J. 725
(2006).
280
    548 U.S. 163.
                                                80
that mitigating evidence does not outweigh aggravating evidence. Absent the

State‘s ability to meet that burden, the default is life imprisonment.‖281                      By

considering this a ―fact finding‖ essential to the imposition of a death sentence,

voila, a Sixth Amendment right is created. But, rather than this conclusion being

the result of a focused consideration of the jury right in the Sixth Amendment and

what it means, this conclusion emerges as the product of piecing together judicial

decisions, all of which were rendered in the last fifty years. And the conclusion is

therefore only as good as you think the prior decisions were, and if they, as some

have felt, were not based on an accurate reading of the Constitution, the outcome is

hardly convincing.282 Thus, the retort to this line of reasoning is available to those

making it only because of prior cases that, in the view of jurists and advocates of a

different view, imposed upon the states a regime of death penalty jurisprudence not

recognized in this nation until the 1970s.

       I recognize that this type of jurisprudential serve-and-volley is to some

extent endemic to our system of law, and its use of judicial review, and sometimes

encourages judicial opinions that read like exercises in predicting the outcome of


281
   Id. at 178–79; see also Sattazahn v. Pennsylvania, 537 U.S. 101, 110 (2003).
282
   This, of course, is exactly why several Justices have focused on death eligibility factors being
considered as an element of a crime, and that the jury right only extends to having the jury
decide all the facts necessary to make a defendant eligible to be executed. They rationalize this
by saying that all are on notice of the criminal laws, and if the criminal laws say that if you do X
crime, the range of punishment is Y, then your jury trial right is fully preserved if you are not
exposed to Y until a jury says you should be. See supra note 218 (discussing Justice Scalia‘s
view on this point); see also Hoffman, supra note 6, at 976–77.
                                                81
our political sporting contests. But, the death penalty context represents one in

which our nation‘s Supreme Court is increasingly called on to build out the interior

of an edifice entirely of its own construction. The hazards for statute writers,

prosecutors, defense attorneys, defendants, trial courts, and state appellate judges

of trying to anticipate what designs will prove durable are formidable.                       In

particular, determining the respective roles of jury and judge has been especially

challenging.

       In deciding as I do, I therefore am reluctant to rest my answers on this kind

of reasoning, because there is no predictable or principled way to choose between

these approaches, which turn on irresolvable debates about what current or future

Justices might think about the wisdom, meaning, and application of complex

precedent to state legislative attempts to comply with the post-Furman mandates.

Those who argue that a greater role for the jury is required do not want a full return

to pre-Furman practices.283 Those who argue that the jury‘s role can stop short of

capital sentencing itself contend that it would be unfair to the states to lard a jury

sentencing requirement on top of judicially constructed death penalty requirements

that were established only since the early 1970s.284


283
    See, e.g., Hoffman, supra note 6, at 1009–10 (advocating for jury sentencing in capital cases
without the arbitrary sentencing in death cases that existed before Furman).
284
    See, e.g., Ring, 536 U.S. at 610 (Scalia, J., concurring) (―What compelled Arizona (and many
other States) to specify particular ‗aggravating factors‘ that must be found before the death
penalty can be imposed was the line of this Court‘s cases beginning with Furman v. Georgia. In
my view, that line of decisions had no proper foundation in the Constitution. I am therefore
                                               82
       Instead of entering a guess-work world to which I am an outsider, I prefer to

isolate the fundamental interests at stake. Accepting Furman, for all its fractures,

as establishing that states cannot establish crimes for which death is the automatic

sentence, and accepting Gregg and its progeny as establishing that any death

sentence must be based on a rational consideration of the aggravating and

mitigating factors and that there must be an option to give life, I also accept

another reality of the case law, which is that the Supreme Court cases acknowledge

what our history shows, which is that death is different.285 Under this line of cases,

fact findings beyond eligibility are not optional; they must be made and are

necessary. Rather than write more and more intricate judicial decisions parsing

different kinds of fact findings, I conclude that Hurst is best read as restoring

something basic that had been lost. At no time before Furman was it the general

practice in the United States for someone to be put to death without a unanimous

jury verdict calling for that final punishment. Overlooking the role juries played in

capital sentencing before Furman and its progeny altered the status quo would be

ignoring nearly 200 years of our nation‘s customs and traditions.




reluctant to magnify the burdens that our Furman jurisprudence imposes on the States. Better for
the Court to have intended an evidentiary requirement that a judge can find by a preponderance
of the evidence, than to invent one that a unanimous jury must find beyond a reasonable
doubt.‖); see also Lillquist, supra note 6.
285
    See supra note 240 and accompanying text.
                                              83
       The U.S. Supreme Court has often drawn lines regarding when

constitutional rights come into play and when they are transgressed.286 That has

long been true in criminal law itself.287 If, as I conclude, the jury right is a

fundamental one that was understood at founding to involve the right to have a jury

determine whether a death sentence should be imposed,288 then that right should be

enforced. The recognition that death is different is not one first made by judges in

the 1970s. It was recognized throughout our nation‘s history, and was a key reason

why a jury was required to unanimously agree that any death sentence would be

imposed. There is no more important part of the criminal trial process than the

sentencing phase in a capital case. In allowing judges rather than juries to make ―a

choice between life and death,‖ the Delaware statute ―sanctions a practice that the

Framers never saw and would not have tolerated.‖289 Throughout our history,




286
    See, e.g., South Dakota v. Dole, 483 U.S. 203, 207–08 (1987) (establishing five-part test for
determining when Congress‘s conditional spending is Constitutional); Tinker v. Des Moines
Indep. Sch. Dist., 393 U.S. 503, 509 (1969) (establishing ―Tinker test‖ for determining whether a
school‘s censuring speech violates the First Amendment).
287
    See, e.g., Crawford v. Washington, 541 U.S. 36, 68 (2004) (reformulating test for determining
whether hearsay statements are admissible under the Sixth Amendment‘s Confrontation Clause);
Illinois v. Gates, 462 U.S. 213, 230–39 (1983) (establishing test for determining when probable
cause exists under Fourth Amendment).
288
    See Spaziano, 468 U.S. at 484 (Stevens, J., dissenting) (―[T]he lesson history teaches is that
the jury—and in particular jury sentencing—has played a critical role in ensuring that capital
punishment is imposed in a manner consistent with evolving standards of decency. This is a
lesson of constitutional magnitude, and one that was forgotten during the enactment of the
Florida statute.‖); supra note 216 and accompanying text.
289
     Douglass, supra note 6, at 1974; see also id. at 2012–15; Lillquist, supra note 6, at 650;
Hoffman, supra note 6, at 964.
                                               84
capital sentencing has been a ―responsibility traditionally left to juries,‖ 290 and the

decision of whether a ―fellow citizen should live or die‖ has been considered a

responsibility too great for any one person to make alone.291

                                       *       *      *

       Two other considerations are at play here. First, as members of the U.S.

Supreme Court have eloquently written, disconnecting the right to a jury from the

death penalty creates a strong argument that the resulting punishment is unusual.292

The reason for that is that the role of the jury was understood as especially critical

when the punishment for a crime involved death, and that a defendant should be

executed only if a jury of his peers unanimously determined that was so. It was

understood that this would make giving a death sentence harder in some important

circumstances, and that was why the jury right was important.                     By sending

someone to the grave based on the determination, not of a unanimous jury, but

simply of a judge, a state denies the defendant a fundamental procedural protection

long part of the American tradition. The unanimous jury requirement also best

assures that defendants are sent to death only when a representative sample of the

290
     Adriaan Lanni, Jury Sentencing in Noncapital Cases: An Idea Whose Time Has Come
(Again)?, 108 YALE L.J. 1775, 1800 (1999).
291
    James Wilson, Lectures of James Wilson, in 2 COLLECTED WORKS OF JAMES WILSON 1008–
09 (Kermit L. Hall & Mark David Hall, eds., 2007)
292
    See Hurst, 136 S. Ct. at 624 (Breyer, J., concurring); Schriro, 542 U.S. at 360 (Breyer, J.,
dissenting); Ring, 536 U.S. at 619 (Breyer, J., concurring); Harris, 513 U.S. at 515–16, 519–20
(Stevens, J., dissenting); Patten v. Florida, 474 U.S. 876, 876 (1985) (Marshall, J., dissenting
from denial of cert.); Spaziano, 468 U.S. at 477–81 (Stevens, J., dissenting); see also Gillers,
supra note 70, at 39–74.
                                              85
community agrees, because the voice of minority perspectives in the jury room is

assured equal weight in this most high stakes of decisions.293 But, in my view, the

Eighth Amendment bank-shot approach of requiring jury sentencing is just an

intricate way of confronting the implication of a direct Sixth Amendment

approach. That implication is that it was understood that no defendant would go to

the gallows unless a jury of his peers said he should. That is, that a defendant had

a right to have a jury say whether he should live or die. That this fundamental,

historical right is respected and restored is more important than the numerical

constitutional amendment under which that happens.

       Second, a requirement that a jury unanimously decide that a defendant

should receive a death sentence does not mean that there can be no role for the

judge. Rather, it would remain constitutional for states to provide a meaningful

role for the trial judge in reviewing any death sentence recommendation made by a

jury and giving the trial judge the option to give a more merciful sentence if she




293
    As amicus points out, the requirement of a unanimous jury was settled as of the time of our
founding as a nation. See C. H. Houston Br. at 4–5; see also 1 JOHN ADAMS, A DEFENCE OF THE
CONSTITUTIONS OF GOVERNMENT OF THE UNITED STATES OF AMERICA 376 (1797) (―[I]t is the
unanimity of the jury that preserves the rights of mankind . . . .‖); JAMES WILSON, THE WORKS OF
THE HONOURABLE JAMES WILSON, L.L.D. 350 (1804) (―To the conviction of a crime, the
undoubting and the unanimous sentiment of the twelve jurors is of indispensable necessity. . . .
[T]he consequence unquestionably is, that a single doubt or single dissent must produce a verdict
of acquittal.‖); Claudio v. State, 585 A.2d 1278, 1301 (Del. 1991) (―[U]nanimity of the jurors is
required to reach a verdict since such was the common law rule.‖).
                                               86
believed that was justified.294           As with any other case, traditional motions

addressed to the jury‘s determinations could be addressed to the trial judge.

       In sum, I find that no death sentence can be given unless that sentence is first

determined to be appropriate by a unanimous jury, properly charged with weighing

the aggravating and mitigating factors for itself.

                                               C.

       Before concluding, I must also address two specific issues posed by the first

four certified questions before us.295 The first issue regards unanimity. I have used

the term ―unanimously‖ throughout this opinion, presaging my answer to part of

the fourth certified question, which is that a defendant cannot be sentenced to death

without a unanimous jury decision to that effect. Not only is the tradition in

294
    See Parker v. Dugger, 498 U.S. 308, 314 (1991).
295
    The Delaware statute in its current form also has another potential problem, which is related
to these two points. That is, it distances the role of the jury from the actual decision about life or
death, by stating the jury only has to make a finding of whether a certain aggravator exists and
whether the aggravating factors outweigh the mitigating factors, under a preponderance standard.
An academic study of the reflections of actual jurors in eight Delaware death penalty cases found
that Delaware‘s approach of having the jurors simply vote on whether the aggravating or
mitigating factors predominate had the effect of distancing jurors from having a sense of
responsibility that their vote was actually one about life or death. The scholars believed the data
―suggest[ed] that capital jurors in Delaware are not taking their sentencing responsibilities
seriously‖ and ―take mental strides to effectively distance themselves as much as possible from
the sentencing decision.‖ Kleinstuber, supra note 205, at 340; see also id. at 325 (―Further
divesting Delaware capital jurors of a sense of responsibility for their decisions, they are not
actually asked whether or not the defendant should be sentenced to death.‖). For these reasons, it
is arguable under the Sixth Amendment that a jury must deliver a sentencing verdict, in which it
specifically imposes either a death sentence or the alterative prison sentence. Either that, or the
jury must be told that it always has an option to exercise mercy and that if its sense of mercy
counsels for the less harsh penalty, it may and should find that the mitigators outweigh the
aggravators. Consistent with that, the jury should also have to be told that a finding that the
aggravators outweigh the mitigators means the jury believes that death should be the defendant‘s
penalty.
                                                 87
Delaware is that a jury act unanimously,296 that is the American tradition and the

understanding of how the jury right worked when it was embodied in the Sixth

Amendment to our Constitution.297 The unanimity requirement is vital to making

sure that jurors deliberate and take each other‘s vote seriously, and that all jurors

have equal voice in making this most critical of decisions.298

       Indeed, the only anomaly to the tradition of the unanimous jury verdict in

Delaware is the recent one introduced into our own death penalty statute, an

innovation expressly intended to bypass the safeguard that a unanimous jury

requirement provides against the imposition of the ultimate punishment of death.299


296
    See Capano v. State, 889 A.2d 968, 978 (Del. 2006); Claudio v. State, 585 A.2d 1278, 1301
(Del. 1991).
297
    See supra notes 27, 42 and accompanying text.
298
    See Smith, supra note 48, at 244 (―More than four decades of social science research indicates
that unanimous juries deliberate longer, discuss and debate the evidence more thoroughly, and
are more tolerant and respectful of dissenting voices. Non-unanimous decision rules also tend to
promote perilous racial dynamics.‖); see also Zylstra, 1 S.C.L. (1 Bay) at 389 (―[W]hen the
rights of the citizens are to be determined on by 12 men, changed at every Court, and
indiscriminately drawn from every class of their fellow citizens, there will be a better chance
generally, that the poor will receive an equal measure of justice with the rich, and that the
decision of facts will be according to the truth of them.‖).
299
    The unanimity requirement has long been celebrated as an important protective safeguard for
a defendant‘s rights, precisely because it makes every voice in the jury room of critical
importance, and thereby has been seen as ensuring that the ultimate outcome is a good proxy for
how the larger community would decide the matter if that were feasible. See Andres, 333 U.S. at
761–65 (Frankfurter, J., concurring). See generally JEFFREY ABRAMSON, WE, THE JURY (2004).
For the obvious reason that eliminating the unanimity requirement reduces the importance of
individual jurors and the incentive for the jury to deliberate in an inclusive manner because the
agreement of every juror is no longer necessary to reach an outcome, it is unsurprising that
scholars have developed empirical evidence that they believe demonstrates that non-unanimous
jury statutes diminish the voice of minority jurors and produce results that seem to reflect greater
racial bias. See, e.g., Kim Taylor-Thompson, Empty Votes in Jury Deliberations, 113 HARV. L.
REV. 1261 (2000); Robert J. Smith, The Geography of the Death Penalty and Its Ramifications,
92 B.U. L. REV. 227 (2012). Among those studies is one that noted that ―Delaware has the
                                                88
If Hurst means what it says, then the finding required to be made for the

imposition of a death sentence must not only be made by a jury, it must be made

by a unanimous jury.300

       The other issue is whether the jury must find any fact that constitutes an

aggravating circumstance in the ultimate sentencing phase beyond a reasonable

doubt, and whether any determination it makes that a defendant should suffer death

because the factors aggravating for that outcome outweigh any mitigating factors,

including the jury‘s own sense of mercy, must be found beyond a reasonable

doubt. As is well-explained in Justice Holland‘s excellent concurring opinion,

which I happily join, the answer to those questions is ―yes.‖ As Justice Holland

shows, § 4209 requires the state to identify any non-statutory aggravating factors

that it is relying upon in the sentencing phase in aid of its pursuit of a death

sentence. And as discussed, it is clear that statute requires the jury to consider

whether the aggravating factors relevant to sentencing, be they a statutory death

highest death-sentencing rate in the country in black defendant/white victim cases.‖ Hans et al.,
supra note 36, at 72.
300
    I acknowledge the odd cases of Apodaca v. Oregon, 406 U.S. 404 (1972), and Johnson v.
Louisiana, 406 U.S. 356 (1972), in which the U.S. Supreme Court held that the Sixth
Amendment applies differently to the federal government than to the states. That rationale, I
confess, is not convincing to me, and I do not believe that the Supreme Court would allow a state
to depart from unanimity in the death penalty context. See McDonald v. City of Chicago, 561
U.S. 742, 765 (2010) (plurality) (―[I]ncorporated Bill of Rights protections ‗are all to be enforced
against the States under the Fourteenth Amendment according to the same standards that protect
those personal rights against federal enforcement.‘‖ (quoting Malloy v. Hogan, 378 U.S. 1, 10
(1964)); see also id. at 823 (Thomas J., joining plurality opinion and concurring) (―Section 1 [of
the Fourteenth Amendment] protects the rights of citizens ‗of the United States‘ specifically.
The evidence overwhelmingly demonstrates that the privileges and immunities of such citizens
included individual rights enumerated in the Constitution . . . .‖).
                                                89
eligibility factor or any pure sentencing aggravator, outweigh the mitigating

factors.

       As I have discussed, the jury‘s role in the administration of the death penalty

was considered essential from the inception of our Republic. Part of the protective

armor the right gave to a defendant against unwarranted imposition of the death

penalty was not just that a jury be unanimously convinced that the death penalty

was appropriate, but that the jury had to have an extremely high level of

confidence that the ultimate punishment should be imposed.                  The beyond a

reasonable doubt standard employed throughout our history in criminal

proceedings reflects the importance our society places on ensuring that criminal

punishment is not imposed lightly.301 When juries found defendants not guilty at

all when any kind of murder or serious felony resulted in a mandatory death

sentence, or guilty of a lesser degree of murder because first degree murder carried

mandatory death sentence when degrees of murder came in to temper that feature

of the law, the beyond a reasonable doubt standard was, along with the unanimity

requirement, a critical feature in ensuring that no one was executed unless the jury

was highly confident that that was the equitable result. To wit, because for much

of our history death was the mandatory result of conviction, the beyond a


301
   See Linda E. Carter, A Beyond a Reasonable Doubt Standard in Death Penalty Proceedings:
A Neglected Element of Fairness, 52 OHIO ST. L.J. 195, 204–05 (1991); Erik Lillquist, Absolute
Certainty and the Death Penalty, 42 AM. CRIM. L. REV. 45, 47–53 (2005).
                                             90
reasonable doubt standard acted as a safeguard in punishment too, not just

conviction.302

       There is no circumstance in which it is more critical that a jury act with the

historically required confidence than when it is determining whether a defendant

should live or die. If, as a majority of us have concluded, the Sixth Amendment

requires a jury to make all the necessary factual determinations relevant to a capital

defendant‘s fate, there is no reason to depart from the long-standing beyond a

reasonable doubt standard when the jury is making the crucial fact-laden judgment

of whether the defendant should be executed.303 Put simply, the Sixth Amendment

right to a jury includes a right not to be executed unless a jury concludes

unanimously that it has no reasonable doubt that is the appropriate sentence.304



302
    See supra notes 17–19 and accompanying text (jury‘s historical role in acquitting guilty
defendants they believed should not suffer death when that was the penalty); supra notes 20–23
and accompanying text (degrees of murder and lesser included offenses arose in part to give the
jury an option to convict a defendant of a lesser crime when guilty of a first degree murder for
which death was the mandatory penalty, when they could not reach an agreement unanimously
and beyond a reasonable doubt that death was the fitting punishment).
303
    See United States v. Gabrion, 648 F.3d 307, 325–26 (6th Cir. 2011), rev’d en banc, 719 F.3d
511 (6th Cir. 2013); Carter, supra note 301, at 215–21.
304
    In so concluding, I acknowledge that post-Furman case law does not apply the beyond a
reasonable doubt standard to the ultimate sentencing phase of a capital trial, and that this Court‘s
own decision in State v. Cohen took that approach. See Cohen, 604 A.2d at 850–52. I also
acknowledge that the U.S. Supreme Court has recently suggested that freighting a sentencing
inquiry with a specific standard of review is inconsistent with the discretionary nature of
sentencing. See Carr, 136 U.S. at 642. But, the reality is that American law has long required
that certain decisions be made with a high level of confidence. In family law, for example, our
state requires a determination that parental rights should be terminated to be made under a clear
and convincing standard. See Barr v. Div. Fam. Servs., 974 A.2d 88, 94 (Del. 2009). And in the
death penalty context itself, several states in fact sensibly direct that any death sentence be
imposed only when the jury is convinced beyond a reasonable doubt that execution is the just
                                                91
sentence. See, e.g., ARK. CODE ANN. § 5-4-603 (West 2016); UTAH CODE ANN. § 76-3-207
(West 2016).
                                        92
HOLLAND, Justice, concurring in the Majority per curiam, with whom Chief
Justice STRINE and Justice SEITZ join:

       The State has charged the Defendant, Benjamin Rauf (―Rauf‖) by indictment

with one count of First Degree Intentional Murder, one count of First Degree

Felony Murder, Possession of a Firearm During those Felonies and First Degree

Robbery. The State has expressed its intention to seek the penalty of death in the

event Rauf is convicted on either of the First Degree Murder counts. On January

12, 2016, the United States Supreme Court held in Hurst v. Florida,1 that Florida‘s

capital sentencing scheme was unconstitutional because ―[t]he Sixth Amendment

requires a jury, not a judge, to find each fact necessary to impose a sentence of

death.‖2 On January 25, 2016, the Superior Court certified five questions of law to

this Court for disposition in accordance with Rule 41 of the Supreme Court rules.

On January 28, 2016, this Court accepted revised versions of the questions

certified by the Superior Court and designated Rauf as the appellant and the State

as the appellee.3 What follows in this opinion are the reasons for my answers to

each question.

                                       Question One

       Under the Sixth Amendment to the United States Constitution, may a

sentencing judge in a capital jury proceeding, independent of the jury, find the

1
  136 S. Ct. 616 (2016).
2
  Id. at 619.
3
  Rauf v. State, No. 39, 2016 (Del. Jan. 28, 2016) (ORDER).
                                              1
existence of ―any aggravating circumstance,‖ statutory or non-statutory, that has

been alleged by the State for weighing in the selection phase of a capital

sentencing proceeding?

       The answer to question one is no. In Hurst, the United States Supreme

Court held that: ―The Sixth Amendment requires a jury, not a judge, to find each

fact necessary to impose a sentence of death.‖4 In Hurst, the Supreme Court

applied its prior holdings in Apprendi v. New Jersey,5 and Ring v. Arizona.6 In

Apprendi, the Supreme Court held ―that any fact that ‗expose[s] the defendant to a

greater punishment than that authorized by the jury‘s guilty verdict‘ is an ‗element‘

that must be submitted to a jury.‖7

       In Hurst, the Supreme Court stated: ―In Ring, we concluded that Arizona‘s

capital sentencing scheme violated Apprendi‘s rule because the State allowed a

judge to find the facts necessary to sentence a defendant the death.‖8 The relevant

inquiry in Hurst, as in Ring, was what maximum sentence the defendant could

receive in the absence of judicial fact-finding. The United States Supreme Court

answered that inquiry, as follows:

               As with Timothy Ring, the maximum punishment
               Timothy Hurst could have received without any judge-
               made findings was life in prison without parole. As with
4
  Hurst, 136 S. Ct. at 619 (emphasis added).
5
  530 U.S. 466 (2000).
6
  536 U.S. 584 (2002).
7
  Hurst, 136 S. Ct. at 621 (quoting Apprendi, 530 U.S. at 494).
8
  Id.
                                                2
              Ring, a judge increased Hurst‘s authorized punishment
              based on her own factfinding. In light of Ring, we hold
              that Hurst‘s sentence violates the Sixth Amendment.9

The Florida sentencing statute at issue in Hurst did ―not make a defendant eligible

for death until ‗findings by the court that such person shall be punished by

death.‘‖10 The holding in Hurst means that when a state statute requires a trial

judge, instead of a jury, to make factual findings that are necessary before a death

sentence can be imposed, the Sixth Amendment is violated.

       In Kansas v. Carr,11 the United States Supreme Court held that the finding

that aggravating circumstances exist is without question a ―purely factual

determination.‖12 Thus, finding the existence of aggravating circumstances is the

functional equivalent of a criminal element in support of the ultimate penalty. In

Hurst, the United States Supreme Court overruled Spaziano v. Florida,13 and

Hildwin v. Florida,14 and held sentencing schemes that ―allow a sentencing judge

to find an aggravating circumstance, independent of a jury‘s factfinding, that is

necessary for imposition of the death penalty,‖ is impermissible under the Sixth

Amendment.15



9
  Id. at 622.
10
   Id. (quoting Fla. Stat. § 775.082(1)).
11
   136 S. Ct. 633 (2016).
12
   Id. at 642.
13
   468 U.S. 447 (1984), overruled by Hurst v. Florida, 136 S. Ct. 616 (2016).
14
   490 U.S. 638 (1989), overruled by Hurst v. Florida, 136 S. Ct. 616 (2016).
15
   Hurst, 136 S. Ct. at 624.
                                               3
       The Delaware death penalty statutes requires the State to give ―[n]otice in

writing of any aggravating circumstances [statutory and non-statutory] . . . prior to

the punishment hearing, and after the verdict on guilt.‖16 The Delaware statute

requires the judge to instruct the jury that ―in order to find the existence of a

statutory aggravating circumstances‖ they must do so beyond a reasonable doubt

and must be unanimous.17 The Delaware statute also requires that ―[a]s to any

statutory aggravating circumstances . . . which were alleged but for which the jury

is not unanimous, the jury shall report the number of affirmative and negative

votes on each such [statutory aggravating] circumstance.‖18

       The Delaware statute does not require the jury to be instructed that the

existence of non-statutory aggravating circumstances must be found unanimously

and beyond a reasonable doubt. It does not require the jury to specifically identify

any of the non-statutory aggravating circumstances that it found to exist. It also

does not require the jury to report the affirmative and negative votes on any alleged

non-statutory aggravating circumstance for which there was not unanimity.

       After the jury finds at least one statutory aggravating circumstance, the

defendant is death eligible. However, as with Timothy Ring and Timothy Hurst,

the maximum punishment a defendant in Delaware can receive without any


16
   11 Del. C. § 4209(c).
17
   11 Del. C. § 4209(c)(3)(b.1) (emphasis added).
18
   Id. (emphasis added).
                                               4
additional judge-made factual findings is life in prison.19         Under the current

Delaware capital sentencing scheme, the judge alone, without knowledge of which,

if any, non-statutory aggravating circumstances the jury found unanimously and

beyond a reasonable doubt or otherwise, independently finds the existence of non-

statutory aggravating circumstances.20 As with the capital sentencing schemes at

issue in Ring and Hurst, a Delaware judge alone can increase a defendant‘s jury

authorized punishment of life to a death sentence, based on her own additional

factfinding of non-statutory aggravating circumstances.           In light of Hurst‘s

application of Ring, this violates the Sixth Amendment.             Accordingly, that

provision in the Delaware death penalty statute is unconstitutional.

                                          Question Two

          If the finding of the existence of ―any aggravating circumstance,‖ statutory

or non-statutory, that has been alleged by the State for weighing in the selection

phase of a capital sentencing proceeding must be made by a jury, must the jury

make the finding unanimously and beyond a reasonable doubt to comport with

federal constitutional standards?

          The answer to question two is yes. First, unanimous verdicts are an essential

component of the Sixth Amendment guarantee to the right to a trial by jury:

―[T]he historical foundation for our recognition of these principles extends down

19
     See id.; Hurst, 136 S. Ct. at 622.
20
     11 Del. C. § 4209(d)(1).
                                               5
centuries into the common law. ‗[T]o guard against a spirit of oppression and

tyranny,‘ . . . trial by jury has been understood to require that ‗the truth of every

accusation . . . be confirmed by the unanimous suffrage of twelve of [the

defendant‘s] equals and neighbours . . . .‘‖21 Although Justice Powell wrote, in an

opinion concurring in judgment with the United States Supreme Court‘s plurality

opinion in Apodaca v. Oregon,22 that non-unanimous jury verdicts were

permissible,23 his reasoning has since been called into question.24 Moreover, when

Justice Scalia concurred in Apprendi, he wrote that charges against the accused,

and the maximum exposure the accused faces, must be determined ―beyond a

reasonable doubt by the unanimous vote of 12 of his fellow citizens.‖25

Nevertheless, there is no doubt that unanimous jury verdicts are required by the

Delaware Constitution even though that question is not before us.26 Second, in

Hurst, the Supreme Court stated: ―The Sixth Amendment provides: ‗In all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury . . . .‘ This right, in conjunction with the Due Process Clause,
21
   Apprendi, 530 U.S. at 477 (internal citations omitted).
22
   406 U.S. 404 (1972).
23
   Johnson v. Louisiana, 406 U.S. 356, 369–80 (1972) (Powell, J., concurring in the judgment in
Apacada).
24
   See McDonald v. City of Chicago, 561 U.S. 742, 765–66, 766 n.14 (2010).
25
   Apprendi, 530 U.S. at 498 (Scalia, J., concurring) (emphasis in original).
26
   Claudio v. State, 585 A.2d 1278, 1290–1301 (Del. 1991) (discussing Delaware‘s history of
jury trials and the requirement of a unanimous jury verdict pursuant to the right to a trial by
jury); see also Capano v. State, 889 A.2d 968, 973 (Del. 2006) (vacating the defendant‘s death
sentence because the defendant‘s ―eligibility for the death penalty was decided by the sentencing
judge without a unanimous jury finding,‖ and ―[i]n Delaware, the elements of any criminal
offense, including the greater offense of capital murder, must be found by a unanimous jury.‖).
                                               6
requires that each element of a crime be proved to a jury beyond a reasonable

doubt.‖27 As succinctly summarized by Justice Scalia, when he concurred in Ring:

―[T]he fundamental meaning of the jury-trial guarantee of the Sixth Amendment is

that all facts essential to imposition of the level of punishment that the defendant

receives—whether the statute calls them elements of the offense, sentencing

factors, or Mary Jane—must be found by the jury beyond a reasonable doubt.‖28

                                        Question Three

       Does the Sixth Amendment to the United States Constitution require a jury,

not a sentencing judge, to find that the aggravating circumstances found to exist

outweigh the mitigating circumstances found to exist because, under 11 Del. C.

§ 4209, this is the critical finding upon which the sentencing judge ―shall impose a

sentence of death‖?

       The answer to question three is yes. This Court has recognized that the

weighing determination in Delaware‘s statutory sentencing scheme is a factual

finding necessary to impose a death sentence.29 ―[A] judge cannot sentence a

defendant to death without finding that the aggravating factors outweigh the

mitigating factors . . . .‖30           The relevant ―maximum‖ sentence, for Sixth

Amendment purposes, that can be imposed under Delaware law, in the absence of

27
   Hurst, 136 S. Ct. at 621 (quoting Alleyne v. United States, 133 S. Ct. 2151 (2013)).
28
   Ring, 536 U.S. at 610 (Scalia, J., concurring).
29
   Brice v. State, 815 A.2d 314, 322 (Del. 2003).
30
   Id.
                                                7
any judge-made findings on the relative weights of the aggravating and mitigating

factors, is life imprisonment. In Hurst, the Supreme Court noted ―the maximum

punishment Timothy Hurst could have received without any judge-made findings

was life in prison without parole.‖31

       As in Florida‘s statutory scheme that was held to be unconstitutional in

Hurst, in Delaware, the judge alone ―must find the facts that sufficient aggravating

circumstances exist and that there are insufficient mitigating circumstances to

outweigh the aggravating circumstances‖ before a death sentence may be

imposed.32 When the Delaware death penalty statute was amended in 2003, the

synopsis to that legislation stated, in relevant part:

               This Act will reverse the Delaware Supreme Court‘s
               judicial misinterpretation of Delaware‘s death penalty
               statute by repealing the Tedder standard adopted by the
               Supreme Court in [Garden v State]. It will clarify that it
               is and has been the intent of the General Assembly that
               while the sentencing judge must consider a jury‘s
               recommended finding on the question of whether the
               aggravating circumstances found to exist outweigh the
               mitigating circumstances found to exist, he or she shall
               not be bound by the recommendation, but instead shall
               give it such weight as he or she deems appropriate under
               the circumstances present in a given case.33

In Hurst, the Supreme Court explained why Delaware‘s advisory system, in which

the jury provides its non-binding recommendation whether or not the aggravating

31
   Hurst, 136 S. Ct. at 622.
32
   Id. (internal quotations marks and alterations omitted). Accord 11 Del. C. § 4209(d)(1).
33
   Del. H.B. 287 syn., 142nd Gen. Assem., 74 Del. Laws ch. 174 (2003).
                                                8
circumstances outweigh the mitigating circumstances, does not qualify as a

―finding‖ by a jury for Sixth Amendment purposes.34 After the decision in Hurst,

when a statute provides for the judge alone to make the factual findings necessary

for the imposition of a death sentence, it violates Sixth Amendment.

       In 2003, in Brice v State,35 this Court held that the Delaware statute did not

violate the Sixth Amendment under Ring.36 In Brice, this Court determined that

the jury‘s verdict finding proof of a statutory aggravating circumstance satisfied

the Sixth Amendment because it was this death eligibility finding alone that served

to increase the maximum punishment to death.37 This Court‘s holding in Brice was

based upon the United States Supreme Court‘s decision in Hildwin.38 However, in

Hurst, the decisions in Hildwin and Spaziano were both ―overruled to the extent

they allow a sentencing judge to find an aggravating circumstance, independent of

a jury‘s factfinding, that is necessary for imposition of the death penalty.‖ 39 Thus,

just as ―[t]ime and subsequent cases have washed away the logic of Spaziano and

Hildwin,‖ the reasoning of Brice is no longer viable following the decision Hurst.

       The only constitutional infirmity at issue in Ring and Hurst was the judicial

determination of aggravating circumstances. On the other hand, Woodward v.


34
   See Hurst, 136 S. Ct. at 622; 11 Del. C. § 4209.
35
   815 A.2d 314 (Del. 2003).
36
   Id. at 322.
37
   Id.
38
   Id. at 319.
39
   Hurst, 136 S. Ct. at 624.
                                                 9
Alabama,40 involved a challenge to Alabama‘s capital punishment scheme, which

allows judges to independently weigh aggravating and mitigating circumstances

and impose death sentences, even where a jury has recommended a sentence of life

in prison.41     Justice Sotomayor, dissenting from the denial of certiorari in

Woodward made this observation:

               A defendant is eligible for the death penalty in Alabama
               only upon a specific factual finding that any aggravating
               factors outweigh the mitigating factors he has presented.
               The statutorily required finding that the aggravating
               factors of a defendant‘s crime outweigh the mitigating
               factors is therefore necessary to impose the death penalty.
               It is clear, then, that this factual finding exposes the
               defendant to a greater punishment than he would
               otherwise receive: death, as opposed to life without
               parole. Under Apprendi and Ring, a finding that has such
               an effect must be made by a jury.42

       Justice Sotomayor was the author of Hurst, which held: ―The Sixth

Amendment requires a jury, not a judge, to find each fact necessary to impose a

sentence of death.‖43 Although the United States Supreme Court‘s holding in

Hurst only specifically invalidated a judicial determination of aggravating

circumstances, it also stated unequivocally that the jury trial right recognized in

Ring now applies to all factual findings necessary to impose a death sentence

under a state statute. The logical extension of that broader statement in Hurst is


40
   134 S. Ct. 405 (2013).
41
   Id. at 406.
42
   Id. at 410–11 (Sotomayor, J., dissenting).
43
   Hurst, 136 S. Ct. at 619 (emphasis added).
                                                10
that a jury must determine the relative weight of aggravating and mitigating

circumstances.44          Therefore, according to the broader statement in Hurst, the

weighing process provision in the Delaware death penalty statute is

unconstitutional because it violates the Sixth Amendment.

                                       Question Four

          If the finding that the aggravating circumstances found to exist outweigh the

mitigating circumstances found to exist must be made by a jury, must the jury

make that finding unanimously and beyond a reasonable doubt to comport with

federal constitutional standards?

          The answer to question four is yes for the same reasons given in response to

question two.

                                        Question Five

          If any procedure in 11 Del. C. § 4209‘s capital sentencing scheme does not

comport with federal constitutional standards, can the provision for such be

severed from the remainder of 11 Del. C. § 4209, and the Court proceed with

instructions to the jury that comport with federal constitutional standards?

          The answer to question five is no. The multiple infirmities in the Delaware

death penalty statute, as a result of the United States Supreme Court‘s decision in

Hurst,             must     be     addressed        by   the   General      Assembly.


44
     Id. at 622.
                                               11
VALIHURA, Justice, concurring in part and dissenting in part as to the per curiam
Opinion:

         In light of the United States Supreme Court‘s decision in Hurst v. Florida,1

this Court certified five questions from the Superior Court concerning the

constitutionality of 11 Del. C. § 4209. My answers are as follows:

      1. Under the Sixth Amendment to the United States Constitution, may a

         sentencing judge in a capital jury proceeding, independent of the jury, find

         the existence of ―any aggravating circumstance,‖ statutory or non-statutory,

         that has been alleged by the State for weighing in the selection phase of a

         capital sentencing proceeding? Answer: Negative.

      2. If the finding of the existence of ―any aggravating circumstance,‖ statutory

         or non-statutory, that has been alleged by the State for weighing in the

         selection phase of a capital sentencing proceeding must be made by a jury,

         must the jury make the finding unanimously and beyond a reasonable doubt

         to comport with federal constitutional standards? Answer: Negative as to

         unanimity (as a matter of federal law only, and not Delaware constitutional

         law, which requires unanimity); affirmative as to the burden of proof.

      3. Does the Sixth Amendment to the United States Constitution require a jury,

         not a sentencing judge, to find that the aggravating circumstances found to

         exist outweigh the mitigating circumstances found to exist because, under 11

1
    136 S. Ct. 616 (2016).
                                           1
           Del. C. § 4209, this is the critical finding upon which the sentencing judge

           ―shall impose a sentence of death‖? Answer: Negative.

      4. If the finding that the aggravating circumstances found to exist outweigh the

           mitigating circumstances found to exist must be made by a jury, must the

           jury make that finding unanimously and beyond a reasonable doubt to

           comport with federal constitutional standards? Answer: Given my answer to

           Question 3, Question 4 is inapplicable.

      5. If any procedure in 11 Del. C. § 4209‘s capital sentencing scheme does not

           comport with federal constitutional standards, can the provision for such be

           severed from the remainder of 11 Del. C. § 4209, and the Court proceed with

           instructions to the jury that comport with federal constitutional standards?

           Answer: Negative.

      I.      CERTIFIED QUESTION 1, AS TO WHETHER A JUDGE,
              INDEPENDENT OF A JURY, MAY FIND AGGRAVATING
              CIRCUMSTANCES, SHOULD BE ANSWERED IN THE
              NEGATIVE

           Question 1 should be answered in the negative. In Hurst, the United States

Supreme Court concluded that Florida‘s capital sentencing statute did not comport

with Ring v. Arizona.2 Ring ―required a jury to find every fact necessary to render

[a defendant] eligible for the death penalty.‖3        Because ―Florida‘s sentencing


2
    536 U.S. 584 (2002).
3
    Hurst, 136 S. Ct. at 622.
                                             2
scheme . . . required the judge alone to find the existence of an aggravating

circumstance,‖ the Supreme Court concluded that it was unconstitutional.4 The

Hurst Court held that ―[t]he Sixth Amendment requires a jury, not a judge, to find

each fact necessary to impose a sentence of death.‖5 Finding that ―[t]he analysis

the Ring Court applied to Arizona‘s sentencing scheme applie[d] equally to

Florida‘s,‖6 Hurst overruled Spaziano v. Florida7 and Hildwin v. Florida,8 but only

―in relevant part‖9 and ―to the extent they allow a sentencing judge to find an




4
  Id. at 624.
5
  Id. at 619.
6
  Id. at 621-22. The Hurst Court summarized Ring as follows:

       In Ring, we concluded that Arizona‘s capital sentencing scheme violated
       Apprendi‘s rule because the State allowed a judge to find the facts necessary to
       sentence a defendant to death. An Arizona jury had convicted Timothy Ring of
       felony murder. Under state law, ―Ring could not be sentenced to death, the
       statutory maximum penalty for first-degree murder, unless further findings were
       made.‖     Specifically, a judge could sentence Ring to death only after
       independently finding at least one aggravating circumstance. Ring‘s judge
       followed this procedure, found an aggravating circumstance, and sentenced Ring
       to death.

       The Court had little difficulty concluding that ―‗the required finding of an
       aggravated circumstance exposed Ring to a greater punishment than that
       authorized by the jury‘s guilty verdict.‘‖ Had Ring‘s judge not engaged in any
       factfinding, Ring would have received a life sentence. Ring‘s death sentence
       therefore violated his right to have a jury find the facts behind his punishment.

Id. at 621 (internal citations omitted).
7
  468 U.S. 447 (1984), overruled in part by Hurst v. Florida, 136 S. Ct. 616 (2016).
8
  490 U.S. 638 (1989) (per curiam), overruled in part by Hurst v. Florida, 136 S. Ct. 616 (2016).
9
  Hurst, 136 S. Ct. at 623 (emphasis added).
                                               3
aggravating circumstance, independent of a jury‘s factfinding, that is necessary for

imposition of the death penalty.‖10

       In my view, 11 Del. C. § 4209 complies with the Sixth Amendment to the

United States Constitution so long as the judge finds and relies upon only those

aggravating circumstances found by the jury beyond a reasonable doubt. To the

extent that it permits the death penalty to be imposed as a result of aggravating

circumstances found only by the judge, and not the jury, then our statute runs afoul

of Hurst.11

       There is no question that the Delaware statute permits the trial court to find

aggravating factors that were never found by the jury. 12 In addition to the plain

language of the statute itself, this Court‘s decision in Ploof v. State,13 which cited

Ortiz v. State14 with approval, makes this clear.15                Because an aggravating


10
   Id. at 624 (emphasis added).
11
   See id. at 619. The United States Supreme Court has made clear that the determination as to
whether aggravating circumstances exist is ―purely factual.‖ Kansas v. Carr, 136 S. Ct. 633, 642
(2016).
12
   Under 11 Del. C. § 4209, the sentencing judge cannot impose the sentence of death unless the
jury ―first finds unanimously and beyond a reasonable doubt the existence of at least 1 statutory
aggravating circumstance . . . .‖ 11 Del. C. § 4209(d)(1). However, if a jury finds unanimously
and beyond a reasonable doubt the existence of at least one statutory aggravating circumstance,
the court, ―after considering the findings and recommendation of the jury and without hearing or
reviewing any additional evidence, shall impose a sentence of death if the Court finds by a
preponderance of the evidence‖ that the ―aggravating circumstances found by the Court to exist
outweigh the mitigating circumstances found by the Court to exist.‖ Id. (emphasis added).
―Otherwise, the Court shall impose a sentence of imprisonment for the remainder of the
defendant‘s natural life without benefit of probation or parole or any other reduction.‖ 11 Del.
C. § 4209(d)(2).
13
   75 A.3d 840 (Del. 2013).
14
   869 A.2d 285 (Del. 2005), cert. denied, 546 U.S. 832 (2005).
                                               4
circumstance found by a judge, but not by a jury, may be necessary for imposition

of the death penalty, it operates as ―the functional equivalent of an element of a

greater offense‖16 and the Sixth Amendment requires that it be found by a jury. 17

        The following hypothetical illustrates how 11 Del. C. § 4209 may run afoul

of Hurst in the instance where a judge finds an aggravating factor, or multiple

aggravating factors, not found by the jury. Assume the defendant is convicted of

first-degree murder by a jury that later finds the existence of one statutory

aggravating factor unanimously and beyond a reasonable doubt.                               The jury

recommends a life sentence. The judge, without hearing any new evidence, finds
15
   See Ploof, 75 A.3d at 846 n.12 (citing Ortiz, 869 A.2d 285) (―[A] jury‘s lack of unanimity
regarding [a] statutory aggravating factor . . . does not preclude the sentencing judge from
considering such evidence as a non[-]statutory aggravating factor as part of his weighing
calculus.‖). As recounted by the Ploof Court, Ortiz ―affirmed the imposition of the death penalty
after a jury, having considered two statutory aggravating factors, unanimously found that the
defendant was previously convicted of a violent felony, but found only by a vote of 9-3 the
circumstance of premeditation and substantial planning. Although it was not entitled to qualify
as a statutory aggravating factor, the trial court found that sufficient evidence existed of
premeditation and substantial planning to warrant its use as a non[-]statutory aggravating factor.‖
Id. (internal citations omitted). The Superior Court also found seven additional non-statutory
aggravating factors in Ortiz. Ortiz, 869 A.2d at 308-09.
16
   Apprendi v. New Jersey, 530 U.S. 466, 494 n.19 (2000); see also Ring, 536 U.S. at 609 (citing
Apprendi, 530 U.S. at 494 n.19) (―Because Arizona‘s enumerated aggravating factors operate as
‗the functional equivalent of an element of a greater offense,‘ the Sixth Amendment requires that
they be found by a jury.‖ (internal citation omitted)).
17
   Hurst, 136 S. Ct. at 621; see also Ring, 536 U.S. 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.‖); id. at 610 (Scalia, J.,
concurring) (―[T]he fundamental meaning of the jury-trial guarantee of the Sixth Amendment is
that all facts essential to imposition of the level of punishment that the defendant receives—
whether the statute calls them elements of the offense, sentencing factors, or Mary Jane—must
be found by the jury beyond a reasonable doubt.‖); Apprendi, 530 U.S. at 494; id. at 499 (Scalia,
J., concurring) (―And the guarantee that ‗[i]n all criminal prosecutions, the accused shall enjoy
the right to . . . trial, by an impartial jury,‘ has no intelligible content unless it means that all the
facts which must exist in order to subject the defendant to a legally prescribed punishment must
be found by the jury.‖ (emphasis in original) (alterations in original)).
                                                   5
three aggravating circumstances not found by the jury and gives de minimis or no

weight to the aggravating factor found by the jury.                  She concludes that the

aggravating circumstances that she found outweigh the mitigating circumstances.

The judge imposes a sentence of death, overriding the jury‘s advisory

recommendation primarily on the basis of the three aggravators that she found.

       In my hypothetical, the court‘s three independent factual findings of

aggravating circumstances were ―necessary for imposition of the death penalty.‖18

Absent factfinding by the court, the maximum punishment the defendant could

receive under our statute is life, since the judge was not persuaded that the sole

aggravating circumstance found by the jury outweighed the mitigating

circumstances.19       The plain language of Hurst provides that ―[t]he Sixth

Amendment requires a jury, not a judge, to find each fact necessary to impose a

sentence of death.‖20

       Hurst is the next step in a progression of cases that have enhanced the jury‘s

role in certain, but not all, aspects of capital cases. In 2000, the United States

Supreme Court decided Apprendi v. New Jersey.21 The defendant in Apprendi pled

guilty to multiple felonies. Pursuant to a New Jersey statute that increased the

18
   Hurst, 136 S. Ct. at 624.
19
   See 11 Del. C. § 4209(d)(1)-(2).
20
   Hurst, 136 S. Ct. at 619; see also id. at 624 (―The Sixth Amendment protects a defendant‘s
right to an impartial jury. This right required Florida to base Timothy Hurst‘s death sentence on
a jury‘s verdict, not a judge‘s factfinding. Florida‘s sentencing scheme, which required the judge
alone to find the existence of an aggravating circumstance, is therefore unconstitutional.‖).
21
   530 U.S. 466 (2000).
                                                6
maximum sentence from 10 years to 20 years if the court found that the defendant

committed his crime with racial bias, the defendant was sentenced to a 12-year

term of imprisonment after the judge found that the ―hate crime‖ sentencing

enhancement applied. On appeal, the United States Supreme Court found the

defendant‘s sentence to have been unconstitutionally enhanced by judicial

factfinding.    The Apprendi Court held that ―[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.‖22

       Four years later, in a non-capital case, Blakely v. Washington,23 Justice

Scalia, writing for the Majority, stated that the United States Supreme Court‘s

―precedents make clear . . . that the ‗statutory maximum‘ for Apprendi purposes is

the maximum sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant.‖24 Blakely further stated

that ―[w]hen a judge inflicts punishment that the jury‘s verdict alone does not

allow, the jury has not found all the facts ‗which the law makes essential to the

punishment,‘ and the judge exceeds his proper authority.‖25


22
   Id. at 490.
23
   542 U.S. 296 (2004).
24
    Id. at 303 (citing Ring, 536 U.S. at 602 (―‗[T]he maximum he would receive if punished
according to the facts reflected in the jury verdict alone.‘‖)) (emphasis in original) (citations
omitted).
25
   Id. at 304 (internal citation omitted).
                                               7
       In Blakely, the defendant‘s plea supported a maximum sentence of 53

months. But the judge imposed a 90-month sentence after finding the defendant

had acted with deliberate cruelty. The State of Washington contended that there

was no Apprendi violation because the maximum sentence was not 53 months, but

rather the 10-year maximum corresponding to a certain classification of felonies.

Rejecting that contention, the Blakely Court stated that ―[t]he ‗maximum sentence‘

is no more 10 years here than it was 20 years in Apprendi (because that is what the

judge could have imposed upon finding a hate crime) or death in Ring (because

that is what the judge could have imposed upon finding an aggravator).‖26

       In 2013, in Alleyne v. United States,27 a non-capital case, the United States

Supreme Court overruled its decision in Harris v. United States,28 where the Court

declined to extend Apprendi to facts that increased the mandatory minimum

sentence but not the maximum sentence. The Harris Court held that judicial

factfinding that increased the mandatory minimum did not implicate the Sixth

Amendment. ―Because the jury‘s verdict ‗authorized the judge to impose the

minimum with or without the finding,‘ the Court was of the view that the factual

26
   Id.
27
   133 S. Ct. 2151 (2013).
28
   536 U.S. 545 (2002). In Harris, the defendant was charged with carrying a firearm in the
course of committing a drug trafficking crime. Under 18 U.S.C. § 924, the mandatory minimum
sentence based on the jury‘s verdict alone was five years. The United States District Court for
the Middle District of North Carolina nonetheless imposed a seven-year mandatory minimum
sentence on the defendant, based on its finding that the defendant brandished the firearm. On
appeal to the United States Supreme Court, the defendant unsuccessfully challenged the imposed
mandatory minimum sentence as unconstitutional under Apprendi.
                                              8
basis for increasing the minimum sentence was not ‗essential‘ to the defendant‘s

punishment. Instead, it merely limited the judge‘s ‗choices within the authorized

range.‘‖29 Alleyne overruled Harris.

       In Alleyne, the defendant was charged with using or carrying a firearm in

relation to a crime of violence, which carried a five-year mandatory minimum

sentence that increased to a seven-year mandatory minimum sentence if the firearm

was ―brandished.‖30 The jury convicted the defendant. The sentencing range

supported by the jury‘s verdict was five years‘ imprisonment to life, but the judge,

rather than the jury, found that the defendant brandished the firearm, increasing the

mandatory minimum sentence from five years to seven years. The judge‘s finding

that the defendant brandished the firearm, the Alleyne Court held, violated the

Sixth Amendment right to a jury trial.31              Alleyne made clear that Apprendi‘s

definition of an element of an offense necessarily included not only facts that

increased the punishment ceiling, but also those that increased the floor. As Justice


29
   Alleyne, 133 S. Ct. at 2157 (quoting Harris, 536 U.S. at 557, 560-61, 567) (internal citations
omitted) (internal quotation marks omitted).
30
   Id. at 2155 (quoting 18 U.S.C. § 924(c)(1)(A)) (internal quotation marks omitted).
31
   The Alleyne Court was careful to point out that their ruling ―does not mean that any fact that
influences judicial discretion must be found by a jury,‖ since the Supreme Court has ―long
recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the
Sixth Amendment.‖ Id. at 2163 (citing Dillon v. United States, 560 U.S. 817, 828-29 (2010)
(―[W]ithin established limits[,] . . . the exercise of [sentencing] discretion does not contravene
the Sixth Amendment even if it is informed by judge-found facts.‖ (alterations in Alleyne));
Apprendi, 530 U.S. at 481 (―[N]othing in this history suggests that it is impermissible for judges
to exercise discretion—taking into consideration various factors relating both to offense and
offender—in imposing a judgment within the range prescribed by statute.‖ (alteration in Alleyne)
(emphasis in original)) (citations omitted).
                                                9
Thomas wrote in Alleyne, ―[d]efining facts that increase a mandatory statutory

minimum to be part of the substantive offense enables the defendant to predict the

legally applicable penalty from the face of the indictment,‖ and ―[i]t also preserves

the historic role of the jury as an intermediary between the State and criminal

defendants.‖32 The United States Supreme Court further concluded in Alleyne that

       the essential Sixth Amendment inquiry is whether a fact is an element
       of the crime. When a finding of fact alters the legally prescribed
       punishment so as to aggravate it, the fact necessarily forms a
       constituent part of a new offense and must be submitted to the jury. It
       is no answer to say that the defendant could have received the same
       sentence with or without that fact.33

Accordingly, the Supreme Court stated that ―if a judge were to find a fact that

increased the statutory maximum sentence, such a finding would violate the Sixth

Amendment, even if the defendant ultimately received a sentence falling within the

original sentencing range (i.e., the range applicable without that aggravating

fact).‖34 Apprendi, Ring, Blakely, Alleyne, and Hurst—decided in the years 2000,




32
   Id. at 2161 (internal citations omitted).
33
   Id. at 2162; see also id. at 2162-63 (―The essential point is that the aggravating fact produced a
higher range, which, in turn, conclusively indicates that the fact is an element of a distinct and
aggravated crime. It must, therefore, be submitted to the jury and found beyond a reasonable
doubt.‖).
34
   Id. at 2162 (citations omitted); see also Blakely, 542 U.S. at 303-04 (―[T]he relevant ‗statutory
maximum,‘ is not the maximum sentence a judge may impose after finding additional facts, but
the maximum he may impose without any additional findings.‖ (emphasis in original)).
                                                10
2002, 2004, 2013, and 2016, respectively—can be read as a linear development of

the United States Supreme Court‘s Sixth Amendment jurisprudence.35

         This Court‘s principal case upholding the constitutionality of the post-Ring

variant of 11 Del. C. § 4209, Brice v. State,36 is no longer viable as a result of

Hurst.     Brice‘s statement that ―a finding of non-statutory factors does not

‗increase‘ the maximum penalty that a defendant can receive‖37 conflicts with

Hurst‘s plain language, which prohibits judicial findings of aggravating

circumstances that are ―necessary for imposition of the death penalty.‖ 38 As my

hypothetical illustrates, the judge was statutorily required to sentence the defendant

to life because she would not have imposed death absent her independent findings

of additional aggravating circumstances. Thus, the additional judicial findings

were necessary for imposition of the death penalty.39 If it remained unclear how

the principles espoused in Alleyne and Blakely apply in the capital sentencing




35
   See Alleyne, 133 S. Ct. at 2165 (Sotomayor, J., concurring) (observing that Apprendi‘s ―rule
has become even more firmly rooted in the Court‘s Sixth Amendment jurisprudence in the
decade since Harris‖).
36
   815 A.2d 314 (Del. 2003).
37
   Id. at 322.
38
   Hurst, 136 S. Ct. at 624; see also id. at 619 (―The Sixth Amendment requires a jury, not a
judge, to find each fact necessary to impose a sentence of death.‖ (emphasis added)); id. at 622
(―Ring required a jury to find every fact necessary to render [a defendant] eligible for the death
penalty.‖ (emphasis added)).
39
   See supra note 12.
                                               11
context, the Supreme Court‘s language in Hurst makes clear that the foundational

―underpinnings‖ of Brice have been ―eroded.‖40

     II.      CERTIFIED QUESTION 2 SHOULD BE ANSWERED IN THE
              NEGATIVE AS TO UNANIMITY AND IN THE AFFIRMATIVE
              AS TO THE BURDEN OF PROOF

           Question 2 should be answered in the negative with respect to unanimity, as

a matter of federal constitutional law—not as a matter of the Delaware

Constitution.41 However, Question 2 should be answered in the affirmative as to

the burden of proof.

           Under Delaware‘s present capital sentencing framework, the jury‘s primary

function in the sentencing phase is to make a factual finding concerning the

existence of a statutory aggravating circumstance.                  The jury also makes a

sentencing recommendation regarding whether the aggravating circumstances

found to exist outweigh the mitigating circumstances found to exist.



40
   Hurst, 136 S. Ct. at 623 (observing that ―in the Apprendi context, we have found that ‗stare
decisis does not compel adherence to a decision whose ‗underpinnings‘ have been ‗eroded‘ by
subsequent developments of constitutional law‘‖ (internal citations omitted)) (internal quotation
marks omitted); compare id. at 624 (holding that a judge cannot find an aggravating
circumstance, independent of a jury, that is necessary to impose the death penalty), with Brice,
815 A.2d at 322 (―Non-statutory aggravators, if considered at all, do not enter the mix until after
the jury performs its essential function during the narrowing phase. Accordingly, a finding of
non-statutory factors does not ‗increase‘ the maximum penalty that a defendant can receive.
Rather, non-statutory aggravators are part of the total mix, including mitigating factors, when the
sentencing judge performs his function during the weighing phase.‖).
41
   See Claudio v. State, 585 A.2d 1278, 1301 (Del. 1991) (citing Fountain v. State, 275 A.2d 251
(Del. 1971)) (―This Court has expressly held that under the Delaware Constitution, unanimity of
the jurors is required to reach a verdict since such was the common law rule.‖ (footnote
omitted)).
                                               12
       In Apodaca v. Oregon,42 the United States Supreme Court held that although

the Sixth Amendment right to trial by jury requires a unanimous jury verdict in

federal criminal trials, it does not require a unanimous jury verdict in State

criminal trials.43 There, the Supreme Court considered whether convictions of

crimes by less-than-unanimous juries violated the right to trial by jury in criminal

cases under the Sixth Amendment.             A plurality of the Court ―perceive[d] no

difference between juries required to act unanimously and those permitted to

convict or acquit by votes of 10 to two or 11 to one.‖44 The plurality concluded

that ―in either case, the interest of the defendant in having the judgment of his

peers interposed between himself and the officers of the State who prosecute and

judge him is equally well served.‖45

       In McDonald v. City of Chicago,46 the United States Supreme Court

observed that the outcome in Apodaca ―was the result of an unusual division

among the Justices,‖ where ―four Justices took the view that the Sixth Amendment

does not require unanimous jury verdicts in either federal or state criminal trials,
42
   406 U.S. 404 (1972).
43
   See Johnson v. Louisiana, 406 U.S. 366, 369-75 (1972) (Powell, J., concurring in the Apodaca
judgment and concurring in Johnson); see also McDonald v. City of Chicago, 561 U.S. 742, 766
n.14 (2010) (citing Apodaca, 406 U.S. 404; Johnson, 406 U.S. 356 (holding that the Due Process
Clause does not require unanimous jury verdicts in state criminal trials)); Jordan v.
Massachusetts, 225 U.S. 167, 176 (1912) (―In criminal cases due process of law is not denied by
a state law . . . which dispenses with the necessity of a jury of twelve, or unanimity in the
verdict.‖).
44
   Apodaca, 406 U.S. at 411 (joint opinion of White, J., Burger, C.J., Blackmun and Rehnquist,
JJ.).
45
   Id.
46
   561 U.S. 742 (2010).
                                              13
and four other Justices took the view that the Sixth Amendment requires

unanimous jury verdicts in federal and state criminal trials.‖47 The McDonald

Court nevertheless observed that ―Justice Powell‘s concurrence in the [Apodaca]

judgment broke the tie, and he concluded that the Sixth Amendment requires juror

unanimity in federal, but not state, cases.‖48

       More recently, in Hurst, the petitioner challenged the viability of Apodaca,

but the Supreme Court declined to address whether the Sixth Amendment right to

trial by jury requires a unanimous jury verdict in State criminal trials.49 Thus,

Apodaca remains the federal constitutional law.                     Apodaca‘s precariousness

notwithstanding, as a matter of the Delaware Constitution, the jury must

unanimously find beyond a reasonable doubt the existence of at least one statutory

aggravating factor as a predicate to the imposition of the death penalty. 50 But, as


47
   Id. at 766 n.14 (internal citations omitted).
48
   Id.; see also Richardson v. United States, 526 U.S. 813, 821 (1999) (―The cases are not federal
but state, where this Court has not held that the Constitution imposes a jury-unanimity
requirement.‖ (citation omitted)).
49
   See Brief for Petitioner at 45-47, Hurst v. Florida, 136 S. Ct. 616 (2016) (No. 14-7505), 2015
WL 3523406.
50
   This Court has provided that ―it is untenable to conclude that the right to trial by jury in the
Delaware Constitution means exactly the same thing as that right in the United States
Constitution.‖ Claudio, 585 A.2d at 1298 (citation omitted). Delaware law has long recognized
the significance of juror unanimity in criminal proceedings. See Wilson v. Oldfield, 1 Del. Cas.
622, 624-27 (Del. Com. Pl. 1818). This Court, in Fountain v. State, 275 A.2d 251 (Del. 1971),
re-affirmed that it is ―fundamental under our law that the verdict of a jury must be unanimous.‖
Id. at 251. There, we recognized that the requirement of juror unanimity under Delaware law
follows from Article I, § 4 of the Delaware Constitution, which provides: ―Trial by jury shall be
as heretofore.‖ Del. Const. art. I, § 4. Fountain thus interpreted Article I, § 4 to ―guarantee[] the
right to trial by jury as it existed at common law.‖ Fountain, 275 A.2d at 251 (citing Nance v.
Rees, 161 A.2d 795 (Del. 1960)). Accordingly, ―[t]his Court and the other courts of Delaware
                                                14
currently interpreted, the Sixth Amendment does not require jury unanimity in

State criminal trials.

       With respect to the burden of proof, the Sixth Amendment, as interpreted in

Apprendi, Ring, and Hurst, requires that ―[i]f a State makes an increase in a

defendant‘s authorized punishment contingent on the finding of a fact, that fact—

no matter how the State labels it—must be found by a jury beyond a reasonable

doubt.‖51 In Hurst, the United States Supreme Court reiterated its holding in

Apprendi that any fact that ―‗expose[s] the defendant to a greater punishment than

that authorized by the jury‘s guilty verdict‘ is an ‗element‘ [of a crime] that must

be submitted to a jury.‖52         Because the determination of the existence of an

aggravating circumstance is ―purely factual,‖53 and such a finding exposes the

defendant to a greater punishment than ―the maximum he would receive if

punished according to the facts reflected in the jury verdict alone,‖ it must be

found by a jury beyond a reasonable doubt.54




have always construed that provision in the Delaware Constitution as ‗guaranteeing the right to
trial by jury as it existed at common law.‘‖ Claudio, 585 A.2d at 1297 (quoting Fountain, 275
A.2d at 251) (emphasis removed). ―Unanimity of the jurors is therefore required to reach a
verdict since such was the common law rule.‖ Fountain, 275 A.2d at 251 (citation omitted).
51
   Ring, 536 U.S. at 602 (citing Apprendi, 530 U.S. at 482-83).
52
   Hurst, 136 S. Ct. at 621 (quoting Apprendi, 530 U.S. at 494) (alterations in Hurst and added).
53
   Carr, 136 S. Ct. at 642.
54
   See Ring, 536 U.S. at 602 (quoting Apprendi, 530 U.S. at 483) (internal quotation marks
omitted).
                                               15
     III.   CERTIFIED QUESTION 3, WHICH ASKS WHETHER THE
            WEIGHING FUNCTION MUST BE PERFORMED BY A JURY,
            SHOULD BE ANSWERED IN THE NEGATIVE

        As certified to this Court, Question 3 should be answered in the negative. I

reach this conclusion for two reasons.             First, Hurst overruled Spaziano and

Hildwin only in part. Hurst leaves undisturbed the United States Supreme Court‘s

clear statement in Spaziano that ―the Sixth Amendment does not require jury

sentencing‖ in capital cases.55 Second, the most logical reading of Hurst is that it,

like Ring, requires a jury to find an aggravating circumstance necessary for

imposition of the death penalty, but it does not require the jury to perform the

weighing function.56

        Further, Hurst—which does not speak to the weighing function directly—

should not be viewed as implicitly overruling the constitutionality of judicial

sentencing in capital cases in the face of such clear authority to the contrary, and

especially when the author of Hurst, Justice Sotomayor, has explicitly addressed

the weighing function in a separate opinion dissenting from the denial of certiorari

in Woodward v. Alabama.57 The Hurst decision does not refer to Woodward,


55
   Spaziano, 468 U.S. at 464.
56
   Compare Hurst, 136 S. Ct. at 624 (―Time and subsequent cases have washed away the logic of
Spaziano and Hildwin. The decisions are overruled to the extent they allow a sentencing judge
to find an aggravating circumstance, independent of a jury‘s factfinding, that is necessary for
imposition of the death penalty.‖), with Ring, 536 U.S. at 609 (―[W]e overrule Walton to the
extent that it allows a sentencing judge, sitting without a jury, to find an aggravating
circumstance necessary for imposition of the death penalty.‖ (citation omitted)).
57
   134 S. Ct. 405, 410-11 (2013) (Sotomayor, J., dissenting from denial of certiorari).
                                              16
where Justice Sotomayor, in her dissent, observed that the Alabama capital

sentencing scheme rendered a defendant death eligible upon a

          factual finding that any aggravating factors outweigh the mitigating
          factors he has presented. The statutorily required finding that the
          aggravating factors of a defendant’s crime outweigh the mitigating
          factors is therefore necessary to impose the death penalty. It is clear,
          then, that this factual finding exposes the defendant to a greater
          punishment than he would otherwise receive: death, as opposed to
          life without parole. Under Apprendi and Ring, a finding that has such
          an effect must be made by a jury.58

Hurst does not hold that a jury determination of the appropriate sentence to be

imposed is a necessary element of a constitutional capital sentencing framework.

The distinguished author of Hurst could have said so—as she did in Woodward—if

that is what the Supreme Court intended in Hurst.

          Finally, given that our legislature has, in recent amendments to 11 Del. C.

§ 4209, stated that weighing is a judicial function under our statutory scheme, I

cannot embrace a reading of Hurst—in the face of unambiguous United States

Supreme Court precedent to the contrary—that would subvert our General

Assembly‘s clear intent to have judges be the ultimate sentencing authority. I

explain each of these points more fully below.




58
     Id. (emphasis added) (internal citations omitted).
                                                   17
       A.      The United States Supreme Court Has Expressly Approved of
               Judicial Sentencing, and Hurst Did Not Overrule Those Decisions

      1.      Prior to Hurst, Judicial Sentencing Was Explicitly Sanctioned

       The United States Supreme Court has, on multiple occasions, expressly

sanctioned judicial sentencing in capital cases. Prior to Hurst, the Supreme Court

―made abundantly clear that a defendant does not enjoy a constitutional right to a

jury determination as to the appropriate sentence to be imposed.‖ 59 The Spaziano

Court stated that ―[t]he Sixth Amendment never has been thought to guarantee a

right to a jury determination‖ of ―the appropriate punishment to be imposed on an

individual.‖60

       The death penalty is not ―frustrated by, or inconsistent with, a scheme in

which the imposition of the penalty in individual cases is determined by a judge.‖ 61

Concurring in Ring, Justice Scalia observed that ―[t]hose States that leave the

ultimate life-or-death decision to the judge may . . . do so—by requiring a prior

jury finding of aggravating factor in the sentencing phase or, more simply, by

59
   Libretti v. United States, 516 U.S. 29, 49 (1995) (citing Spaziano, 468 U.S. at 459 (no right to
a jury determination as to the imposition of the death penalty)) (citations omitted); see also
Morgan v. Illinois, 504 U.S. 719, 725-26 (1992) (―We have emphasized previously that there is
not ‗any one right way for a State to set up its capital sentencing scheme,‘ and that no State is
constitutionally required by the Sixth Amendment or otherwise to provide for jury determination
of whether the death penalty shall be imposed on a capital defendant.‖ (internal citations
omitted)); id. at 740 (Scalia, J., dissenting) (citing Clemons v. Mississippi, 494 U.S. 738, 745-46
(1990); Spaziano, 468 U.S. at 464 (citations omitted)) (―The Court today reaffirms our oft-
repeated holding that the Sixth Amendment (which is binding on the States through the
Fourteenth Amendment) does not require a jury trial at the sentencing phase of a capital case.‖).
60
   Spaziano, 468 U.S. at 459 (citations omitted).
61
   Id. at 462-63 (footnote omitted).
                                               18
placing the aggravating-factor determination (where it logically belongs anyway)

in the guilt phase.‖62         Hurst and Ring do not require a jury to make the

determination that the aggravating circumstances outweigh the mitigating

circumstances.63

     2.      Hurst Overrules Spaziano Only in “Relevant Part” and Does Not
                                 Address Proffitt

          Hurst overruled Spaziano and Hildwin ―in relevant part‖ and ―to the extent

they allow a sentencing judge to find an aggravating circumstance, independent of

a jury‘s factfinding, that is necessary for imposition of the death penalty.‖ 64 The

Hurst Court did not hold that the Sixth Amendment requires that a jury must make

the determination as to the appropriate sentence to be imposed in capital cases.




62
   Ring, 536 U.S. at 612-13 (Scalia, J., concurring).
63
   Various concurring and dissenting opinions have expressed support for jury sentencing in
capital cases, but, to date, jury sentencing has not garnered majority support on the United States
Supreme Court. See, e.g., Hurst, 136 U.S. at 624 (Breyer, J., concurring in the judgment)
(quoting Ring, 536 U.S. at 614 (Breyer, J., concurring in the judgment)) (―[T]he Eighth
Amendment requires that a jury, not a judge, make the decision to sentence a defendant to
death.‖ (internal quotation marks omitted)); Woodward, 134 S. Ct. at 407 (Sotomayor, J.,
dissenting from denial of certiorari) (―One such safeguard, as determined by the vast majority of
States, is that a jury, and not a judge, should impose any sentence of death.‖ (footnote omitted));
see also id. at 407 n.2 (―It is perhaps unsurprising that the national consensus has moved towards
a capital sentencing scheme in which the jury is responsible for imposing capital punishment.
Because capital punishment is an expression of society‘s moral outrage at particularly offensive
conduct, jurors, who express the conscience of the community on the ultimate question of life or
death, seem best-positioned to decide whether the need for retribution in a particular case
mandates imposition of the death penalty.‖ (internal citations omitted) (internal quotation marks
omitted)).
64
   Hurst, 136 S. Ct. at 623-24.
                                                19
Nor did Ring address whether ―the Sixth Amendment require[s] the jury to make

the ultimate determination whether to impose the death penalty.‖65

       In Proffitt v. Florida,66 a plurality of the United States Supreme Court did

address whether the Sixth Amendment requires jury sentencing in capital cases.

Proffitt states clearly that judicial sentencing is constitutionally permissible.67

Proffitt ―pointed out that jury sentencing in a capital case can perform an important

societal function,‖ but it also emphasized that the Supreme Court ―has never

suggested that jury sentencing is constitutionally required.‖68 Following Proffitt,

where the Court has considered sentencing authorities in capital cases, it has

embraced judicial sentencing.69 Hurst does not mention Proffitt.

       Moreover, Justice Breyer‘s concurrence in Hurst—which has not yet

garnered majority support on the United States Supreme Court—would not have




65
    Ring, 536 U.S. at 597 n.4 (citing Proffitt v. Florida, 428 U.S. 242, 252 (1976) (plurality
opinion) (―[I]t has never [been] suggested that jury sentencing is constitutionally required.‖
(alterations in Ring))).
66
   428 U.S. 242 (1976) (plurality opinion).
67
    See id. at 252 (joint opinion of Powell, Stewart, Stevens, JJ.) (―And it would appear that
judicial sentencing should lead, if anything, 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.‖ (citations omitted)).
68
   Id. (citing Witherspoon v. Illinois, 391 U.S. 510, 519 n.15 (1968)) (emphasis added).
69
   See, e.g., Clemons, 494 U.S. at 745 (―Any argument that the Constitution requires that a jury
impose the sentence of death . . . has been soundly rejected by prior decisions of this Court.‖); id.
(―[T]he decision whether a particular punishment—even the death penalty—is appropriate in any
given case is not one that we have ever required to be made by a jury.‖ (citation omitted)
(internal quotation marks omitted)).
                                                20
been necessary if the Court‘s Opinion contemplated weighing by a jury as opposed

to a judge. He wrote:

       For the reasons explained in my opinion concurring in the judgment in
       Ring v. Arizona, I cannot join the Court‘s opinion. As in that case,
       however, I concur in the judgment here based on my view that ―the
       Eighth Amendment requires that a jury, not a judge, make the
       decision to sentence a defendant to death.‖70

Justice Breyer concurred in the Hurst judgment precisely because the Majority did

not hold that jury sentencing was constitutionally required, either by the Sixth or

Eighth Amendment, in capital cases.

       B.      Principles of Federalism and Separation of Powers Call for Judicial
               Restraint and Favor a Narrower Holding That Judicial Sentencing
               Remains Permissible

       Within our constitutional system of checks and balances, a State statute can

be invalidated on the grounds that it violates the United States Constitution.71

However, I believe that a decision to render 11 Del. C. § 4209 unconstitutional

here should only occur if Hurst unambiguously calls for such a result.72 As to


70
   Hurst, 136 S. Ct. at 624 (Breyer, J., concurring in the judgment) (quoting Ring, 536 U.S. at
614 (Breyer, J., concurring in the judgment)) (internal citations omitted).
71
   Indeed, the Supremacy Clause of Article VI of the United States Constitution makes clear that
federal constitutional rights supersede any contrary State laws: ―This Constitution, and the Laws
of the United States which shall be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.‖ U.S. Const. art. VI, cl. 2.
72
   A requirement of such clarity before mandating State officials to alter their statutory schemes
exists, relatedly, in other contexts, such as addressing ambiguities in federal statutes. See Bond
v. United States, 134 S. Ct. 2077, 2089 (2014) (referring to the established principle that ―it is
incumbent upon the federal courts to be certain of Congress‘ intent before finding that federal
law overrides the usual constitutional balance of federal and state powers,‖ and observing that ―if
                                               21
judicial sentencing, Hurst, in my view, is at least ambiguous. This fact should be

counterbalanced against the undeniable reality that our State statute could not be

more clear that judicial sentencing was intended.

       To illustrate, in 1991, Delaware‘s legislature amended 11 Del. C. § 4209 to

effect a change from jury sentencing to judge sentencing. The synopsis of that

amendment to the statute states:

       This bill would cause the judge to make the final determination as to
       whether a person convicted of first degree murder should be sentenced
       to death or life imprisonment. The bill provides a clear statutory
       framework to guide the judge and the jury would assist in this
       determination by rendering, after deliberations, as [sic] an advisory
       sentence to be imposed. This bill generally follows the Florida statute
       as approved by the United States Supreme Court.73

the Federal Government would radically readjust[] the balance of state and national authority,
those charged with the duty of legislating [must be] reasonably explicit‖ (internal citations
omitted) (internal quotation marks omitted) (alterations in original)). Writing for the Court in
Bond v. United States, Chief Justice Roberts commented that ―[b]ecause our constitutional
structure leaves local criminal activity primarily to the States, we have generally declined to read
federal law as intruding on that responsibility, unless Congress has clearly indicated that the law
should have such reach.‖ Id. at 2083; cf. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.
1, 17 (1981) (―By insisting that Congress speak with a clear voice, we enable the States to
exercise their choice knowingly, cognizant of the consequences of their participation [in a grant
of federal funds].‖). Accordingly, although it is ―the province and duty of the judicial
department to say what the law is,‖ Marbury v. Madison, 5 U.S. 137, 177 (1803), I reject the
more expansive interpretation of Hurst that three of my distinguished colleagues gave it.
73
   S.B. 79, 136th Gen. Assemb., 2d Sp. Sess., 68 Del. Laws ch. 189 (Del. 1991) (citing Proffitt,
428 U.S. at 260 (White, J., concurring in the judgment) (―Under Florida law, the sentencing
judge is [r]equired to impose the death penalty on all first-degree murderers as to whom the
statutory aggravating factors outweigh the mitigating factors.‖)) (citation omitted); see also H.B.
287, 142nd Gen. Assemb., 1st Reg. Sess., 74 Del. Laws ch. 174 (Del. 2003) (―In 1991, the 136th
General Assembly changed Delaware‘s death penalty statute so that the final sentencing
authority in such cases was vested with the trial judge. [The synopsis to the 1991 amendment]
clearly stated that the intent of the bill was to ensure that the judge would ‗make the final
determination as to whether a person convicted of first degree murder should be sentenced to
death or life imprisonment.‘‖); id. (―[This Act] will clarify that it is and has been the intent of the
General Assembly that while the sentencing judge must consider a jury‘s recommended finding
                                                 22
In 2002, following Ring, our statute was amended to largely reflect its present

form.74 11 Del. C. § 4209 was amended again in 2003 to reflect our General

Assembly‘s desire to have the ultimate sentencing authority reside with the judge

as opposed to the jury.75 The synopsis to the 2003 amendment states: ―This Act

re-affirms the intent of the General Assembly that the sentencing judge in a capital

murder case shall be ultimately responsible for determining the penalty to be

imposed.‖76

       These legislative enactments endorsing judicial sentencing are the result of

our General Assembly‘s reactions to criminal cases that deeply impacted

Delaware‘s citizenry.       Particularly because Hurst does not expressly address

judicial sentencing, and instead suggests that certain aspects of Spaziano and

Hildwin survive, principles of federalism and separation of powers call for judicial

restraint so as to not so easily unravel what our State legislature has deemed

appropriate on more than one occasion. While the progression of United States

Supreme Court jurisprudence discussed in my response to Certified Question 1


on the question of whether the aggravating circumstances found to exist outweigh the mitigating
circumstances found to exist, he or she shall not be bound by the recommendation, but instead
shall give it such weight as he or she deems appropriate under the circumstances present in a
given case.‖).
74
   S.B. 449, 141st Gen. Assemb., 2d Reg. Sess., 73 Del. Laws ch. 423 (Del. 2002) (―This Act
will conform Delaware‘s death penalty sentencing procedures to the new rule announced by the
United States Supreme Court in Ring v. Arizona.‖ (italics added)).
75
   H.B. 287, 142nd Gen. Assemb., 1st Reg. Sess., 74 Del. Laws ch. 174 (Del. 2003).
76
   Id.
                                              23
may evolve to eventually require jury sentencing, Hurst does not clearly mandate

jury sentencing in capital cases.

     IV.     CERTIFIED QUESTION 4 IS INAPPLICABLE

          Given my answer to Question 3, Question 4 is inapplicable.

     V.      CERTIFIED QUESTION 5, AS TO WHETHER ANY
             UNCONSTITUTIONAL PROVISION CAN BE SEVERED,
             SHOULD BE ANSWERED IN THE NEGATIVE

          In view the integral nature of the provisions of 11 Del. C. § 4209 that

involve the findings of aggravating circumstances, the needed correction cannot be

adequately addressed with jury instructions.77              Instead, the revisions must be

addressed by the General Assembly.

     VI.     CONCLUSION

          What we address today is not whether capital punishment is categorically

constitutional or not. In this regard, the United States Supreme Court has recently

said that, as a matter of federal constitutional law, the death penalty is

constitutional. Last year, for example, in Glossip v. Gross,78 the Supreme Court

stated that it has ―time and again reaffirmed that capital punishment is not per se




77
   Cf. 1 Del. C. § 308 (―If any provision of this Code or amendments hereto, or the application
thereof to any person, thing or circumstances is held invalid, such invalidity shall not affect the
provisions or application of this Code or such amendments that can be given effect without the
invalid provisions or application, and to this end the provisions of this Code and such
amendments are declared to be severable.‖).
78
   135 S. Ct. 2726 (2015).
                                                24
unconstitutional.‖79 Indeed, the Fifth Amendment to the United States Constitution

expressly contemplates capital punishment.80

       Nor is what the Delaware Constitution may require the subject of the

certified questions.      Rather, we focus on whether the United States Supreme

Court‘s decision in Hurst invalidates any portion of our State death penalty statute

as a matter of federal constitutional law only. The constitutional issues addressed

in Hurst—and, for that matter, Ring—concerned the judicial determination of

aggravating circumstances. Based upon a plain reading of Hurst, I conclude that

the only portions of our statute that are adversely impacted concern judicial

findings of aggravating circumstances not found by the jury.

       From my perspective, Hurst does not reach our statute‘s provision for

judicial weighing of aggravating and mitigating circumstances. Judicial restraint

calls for leaving the issue of judicial sentencing in capital cases to a day when the

United States Supreme Court unambiguously addresses the matter.                             As the


79
    Id. at 2739 (citing Baze v. Rees, 553 U.S. 35, 47 (2008); id. at 87-88 (Scalia, J., concurring in
judgment); Gregg v. Georgia, 428 U.S. 153, 187 (1976) (joint opinion of Stewart, Powell, and
Stevens, JJ.); id. at 226 (White, J., concurring in judgment); Louisiana ex rel. Francis v.
Resweber, 329 U.S. 459, 464 (1947); In re Kemmler, 136 U.S. 436, 447 (1890); Wilkerson v.
Utah, 99 U.S. 130, 134-35 (1878)).
80
    U.S. Const. amend. V (―No person shall . . . be deprived of life . . . without due process of law
. . . .‖); see also Glossip, 135 S. Ct. at 2747 (Scalia, J., concurring) (―Mind you, not once in the
history of the American Republic has this Court ever suggested the death penalty is categorically
impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the
Constitution explicitly contemplates. The Fifth Amendment provides that ‗[n]o person shall be
held to answer for a capital . . . crime, unless on a presentment or indictment of a Grand Jury,‘
and that no person shall be ‗deprived of life . . . without due process of law.‘‖ (emphasis in
original) (alterations in Glossip)).
                                                25
Supreme Court reiterated in Schad v. Arizona,81 ―[i]t goes without saying that

preventing and dealing with crime is much more the business of the States than it is

of the Federal Government.‖82 The Schad Court further observed that ―we should

not lightly construe the Constitution so as to intrude upon the administration of

justice by the individual States.‖83 Based upon the Supreme Court‘s recent remand

of three cases involving Alabama‘s death penalty statute84—a statute which bears

some similarity to Delaware‘s—the Court may eventually reconsider the issue of

judicial sentencing. But until then, I am persuaded by Justice Scalia‘s observations

in his separate concurrence in Glossip, where he stated:

      Capital punishment presents moral questions that philosophers,
      theologians, and statesmen have grappled with for millennia. The
      Framers of our Constitution disagreed bitterly on the matter. For that
      reason, they handled it the same way they handled many other
      controversial issues: they left it to the People to decide.85

Accordingly, I would leave to the citizens of Delaware to decide certain issues

regarding capital punishment not directly addressed by Hurst—and I would not

declare unconstitutional other aspects of 11 Del. C. § 4209 without a clear directive

from the United States Supreme Court.



81
   501 U.S. 624 (1991) (plurality opinion).
82
   Id. at 638 (citation omitted) (internal quotation marks omitted).
83
    Id. (quoting Patterson v. New York, 432 U.S. 197, 201 (1977)) (internal quotation marks
omitted).
84
   Kirksey v. Alabama, 136 S. Ct. 2409 (2016); Wimbley v. Alabama, 136 S. Ct. 2387 (2016);
Johnson v. Alabama, 136 S. Ct. 1837 (2016).
85
   Glossip, 135 S. Ct. at 2749-50 (Scalia, J., concurring).
                                            26
VAUGHN, Justice, dissenting:

          I am not persuaded that Hurst v. Florida1 requires a finding that Delaware‘s

death penalty statute violates the Sixth Amendment to the United States

Constitution. While I have seen it written that the Florida statute, in effect at the

time of Hurst, and the Delaware statute are similar, they are fundamentally

different on a point which is central to this case. Under Florida‘s statute as it then

existed, the jury‘s finding of the existence of a statutory aggravating factor was

purely advisory. In addition, it did not need to be unanimous. A majority vote was

enough. The jury made no express finding as to the existence of any specific

statutory aggravating factor, which means that some jurors could find the existence

of one statutory aggravating factor while others could find the existence of a

different factor. Since the jury‘s role was purely advisory, the judge could reject a

jury finding that no statutory aggravating factor existed and sentence the defendant

to death based on his or her own findings. That cannot happen under Delaware‘s

statute. In Delaware the jury must find the existence of at least one specific

statutory aggravating factor unanimously and beyond a reasonable doubt in order

for the defendant to be eligible to receive the death penalty. If the jury does not

find the existence of a specific statutory aggravating factor unanimously and



1
    136 S.Ct. 616, 616 (Jan. 12, 2016).

                                            1
beyond a reasonable doubt, the process stops, and the judge sentences the

defendant to life imprisonment.

       For me, the analysis in this case begins with Apprendi v. New Jersey2 and

Ring v. Arizona.3       In Apprendi, the U. S. Supreme Court held that a factual

determination authorizing an increase in a maximum prison term must be found by

a jury beyond a reasonable doubt.4              In Ring, the Court applied Apprendi to

Arizona‘s death penalty statute.5 The Arizona statute in effect at the time of Ring

gave the jury no role in sentencing.6 The law authorized a judge to sentence a

defendant to death for the crime of murder if the judge found at least one of

certain, enumerated aggravating circumstances to exist and ―there [were] no

mitigating circumstances sufficiently substantial to call for leniency.‖ 7         This

language created a form of a weighing process which the judge engaged in if he or

she found that an aggravating circumstance existed.

       The U.S. Supreme Court observed that under Arizona‘s statute, a ―death

sentence may not legally be imposed . . . unless at least one aggravating factor is

found to exist beyond a reasonable doubt.‖8 It stated that ―[t]he question presented

was whether that aggravating factor may be found by a judge, as Arizona law

2
  530 U.S. 466, 466 (2000).
3
  536 U.S. 584, 584 (2002).
4
  Apprendi, 530 U.S. at 490.
5
  Ring, 536 U.S. at 596.
6
  Id. at 592.
7
  Id. at 593 (quoting Ariz. Rev. Stat. Ann. § 13-703(F) (2001)).
8
  Id. at 597 (quoting State v. Ring, 25 P.3d 1139, 1151 (Ariz. 2001) (en banc)).
                                                2
specifies, or whether the Sixth Amendment‘s jury trial guarantee, made applicable

to the States by the Fourteenth Amendment, requires that the aggravating factor

determination be entrusted to the jury.‖9 The Court reasoned that a jury must

determine ―any fact on which the legislature conditions an increase in [a

defendant‘s] maximum punishment,‖10 and overruled Walton v. Arizona11 ―to the

extent that it allows a sentencing judge, sitting without a jury, to find an

aggravating circumstance necessary for the imposition of the death penalty.‖ 12 The

opinion did not discuss any jury fact-finding role in the weighing process that

followed the finding of the existence of an aggravating circumstance.

        In his concurrence in Ring, Justice Scalia said that ―today‘s judgment has

nothing to do with jury sentencing. . . . Those States that leave the ultimate life-or-

death decision to the judge may continue to do so . . . .‖13 This statement brought

no comment from the majority. Justice Breyer concurred in the judgment because

of his view that the Eighth Amendment requires jury sentencing. All of the other

eight Justices passed on the opportunity to join his concurrence.

        It follows, in my view, that in 2002 when Ring was decided, the U.S.

Supreme Court held the view that the Sixth Amendment required the jury to find

the existence of an aggravating factor, unanimously and beyond a reasonable
9
  Id.
10
   Id. at 589.
11
   497 U.S. 639, 639 (1990).
12
   Ring, 536 U.S. at 609.
13
   Id. at 612 (Scalia, J., concurring).
                                          3
doubt, in order for a defendant to be sentenced to death, but did not require that all

the facts underlying the weighing process be found by a jury, and did not require

jury sentencing. Ring stands only for the principle that the jury must find the

existence of at least one statutory aggravating factor, unanimously and beyond a

reasonable doubt, in order to elevate the defendant‘s maximum punishment from

life imprisonment to death. That is the view of Ring which this Court adopted in

Brice v. State,14 which I think was correct then and remains correct after Hurst.

       The pertinent difference between Arizona‘s statute at the time of Ring and

Florida‘s statute was that under Arizona‘s statute the jury had no role in

sentencing, whereas under the Florida statute it had only an advisory role. After

Ring, that is a distinction without a difference. It is clear that the characteristics of

Florida‘s statute failed to comply with Ring‘s requirement that a jury must

determine ―any fact on which the legislature conditions an increase in [a

defendant‘s] maximum punishment.‖15 Florida never changed its statute to bring it

into compliance with Ring.16 Although Florida attempted to defend its statute

before the U. S. Supreme Court in Hurst, the statute‘s failure to comply with Ring

is actually quite obvious.          I think that after Ring was decided, the eventual




14
   815 A.2d 314, 314 (Del. 2003).
15
   Ring, 536 U.S. at 589.
16
   Hurst, 136 S.Ct. at 620.
                                              4
overruling of Hildwin v. Florida17 and Spaziano v. Florida,18 which occurred in

Hurst, was very predictable.

       Much is made of the sentence in Hurst which reads ―[t]he Sixth Amendment

requires a jury, not a judge, to find each fact necessary to impose a sentence of

death.‖19 When this sentence is read as supporting a conclusion that the Sixth

Amendment requires jury fact finding in the weighing process or jury sentencing, I

think it is read out of context. I believe that the most reasonable explanation of

Hurst is that it applied Ring without broadening Ring. In Hurst, the majority as

much as says so, in my opinion:

           The analysis the Ring Court applied to Arizona‘s sentencing
           scheme applies equally to Florida‘s. Like Arizona at the time
           of Ring, Florida does not require the jury to make the critical
           findings necessary to impose the death penalty.20

Another passage in Hurst recognizes the rule set forth in Ring. Referring to the

Florida Supreme Court, the Court stated:

           As relevant here, the court rejected Hurst‘s argument that his
           sentence violated the Sixth Amendment in light of Ring. Ring,
           the court recognized, ―held that capital defendants are entitled
           to a jury determination of any fact on which the legislature
           conditions an increase in the maximum punishment.‖ But the
           court considered Ring inapplicable in light of this Court‘s




17
   490 U.S. 638, 638 (1989).
18
   468 U.S. 447, 447 (1968).
19
   Hurst, 136 S.Ct. at 619.
20
   Id. at 621-22.
                                           5
           repeated support of Florida‘s capital sentencing scheme in pre-
           Ring cases.21

In responding to the State of Florida‘s arguments, the Court again refers to death

eligibility:

           Florida concedes that Ring required a jury to find every fact
           necessary to render Hurst eligible for the death penalty. . . .
           The State fails to appreciate the central and singular role the
           judge plays under Florida law. As described above and by the
           Florida Supreme Court, the Florida sentencing statute does not
           make a defendant eligible for death until findings by the court
           that such person shall be punished by death.22
       Whether a jury should be required to find the existence of all facts which

underlie the weighing process or have a greater role in the weighing process was

not before the Court in Hurst. In my opinion, the Court was not discussing the

weighing process in Hurst. The question presented in Hurst was simple and

straightforward:

           Whether Florida‘s death sentencing scheme violates the Sixth
           Amendment or the Eighth Amendment in light of this Court‘s
           decision in Ring v. Arizona, 536 U.S. 582 (2002).23
The question presented did not ask whether the jury‘s fact finding role should be

broadened. Timothy Lee Hurst‘s attorneys did not argue, as far as I can determine,

that the Sixth Amendment requires that the jury must find all facts underlying the

weighing process. They did not need to because the Florida statute failed to


21
   Id. at 620-21 (citations omitted).
22
   Id. at 622 (internal quotation marks omitted).
23
   Hurst v. Florida, 135 S.Ct. 1531, 1531 (2015).
                                               6
comply with Ring‘s requirement that the jury make all findings of fact which make

a defendant death eligible.

       In their opening brief in the U. S. Supreme Court, the attorneys for Timothy

Lee Hurst included an argument which I read as an argument that Florida‘s death

penalty statute is unconstitutional because it is not like Delaware‘s. After arguing

that Hildwin—a case which had previously upheld Florida‘s death penalty

statute24—should be overruled, counsel for Timothy Lee Hurst argued:

           Tellingly, the three other States that, at the time of Ring, had
           ―hybrid systems, in which the jury renders an advisory verdict
           but the judge makes the ultimate sentencing determinations,‖
           Ring, 536 U.S. at 608 n.6, modified their capital sentencing
           schemes after Ring to ensure that the jury makes all findings
           necessary for imposition of the death penalty (even if the judge
           still selects the sentence). See Brice v. State, 815 A.2d 314, 320
           (Del. 2003) . . . .25

Timothy Lee Hurst‘s attorneys themselves described Delaware‘s statute as one

under which ―the jury makes all findings necessary for imposition of the death

penalty.‖26 In my opinion, they are obviously referring to the death eligibility

finding. Notice the similarity of this passage from Timothy Lee Hurst‘s opening

brief to the statement in the majority opinion in Hurst that a jury must ―find each

fact necessary to impose a sentence of death.‖



24
   Hildwin, 490 U.S. at 640-41.
25
   Brief of Petitioner at 25, Hurst v. Florida, 136 S.Ct. 616 (Jan. 12, 2016) (No. 14-7505), 2015
WL 3542784 at *25.
26
   Id.
                                               7
       At oral argument before the Court, the first remark made by the attorney

representing Timothy Lee Hurst referred to death eligibility:

          [Attorney for Timothy Lee Hurst]: Under Florida law, Timothy
          Hurst will go to his death despite the fact that a judge, not a
          jury, made the factual finding that rendered -- rendered him
          eligible for death. That violates the Sixth Amendment under
          Ring.27

Just a question later, he answers a question by again referring to death eligibility:

          Justice Scalia: Is there ever a case in which the jury found
          aggravators and recommended the death sentence, and the
          judge reversed that finding?
          [Attorney for Timothy Lee Hurst]: There may well be. This is
          principally a case about the finding of death eligibility, not
          sentence selection.28

Later in the argument, the attorney for Timothy Lee Hurst, in response to another

question from Justice Scalia, refers to death eligibility and not the determination of

the sentence:

          [Attorney for Timothy Lee Hurst]: Justice Scalia -- exactly.
          And, Justice Scalia, leaving aside our Eighth Amendment point
          in our brief -- that followed on Justice Breyer‘s concurrence in
          Ring, the -- this is all about the eligibility, not the determination
          of what sentence applies.29
       I interpret the statement in the majority opinion in Hurst that a jury must

find ―each fact necessary to impose a death sentence‖ to mean that the jury must


27
   Transcript of Oral Argument at 3, Hurst v. Florida, 136 S.Ct. 616 (Jan. 12, 2016) (No. 14-
7505), 2015 WL 5970064, at *3.
28
   Id. at *4.
29
   Id. at *12.
                                             8
find each fact that is necessary to increase the maximum punishment that the

defendant may receive from a sentence of life imprisonment to the death penalty.

Those facts are, in this case, with respect to Count I, (1) Rauf caused the death of

the victim, (2) he did so intentionally, and (3) at least one, specific statutory

aggravating factor exists; and, with respect to Count II, (1) Rauf, while engaged in

the commission of, or attempt to commit, or flight after committing or attempting

to commit the felony of Robbery in the First Degree, (2) did recklessly cause the

death of the victim. Since the elements of Count II contain a statutory aggravating

factor within them, no finding of an additional statutory aggravating factor is

required with respect to that Count. In my view, those are the facts ―necessary‖ to

impose the death penalty. If the U.S. Supreme Court in Hurst had intended to

broaden Ring to require that the jury make findings of fact in the weighing process

or be the actual sentencing authority, I think it would have said so more directly

and more expressly.

      Recently, in May and June of this year, the U. S. Supreme Court vacated the

judgments in three Alabama death penalty cases; and remanded one to the

Alabama Supreme Court and two to the Court of Criminal Appeals of Alabama for

further consideration in light of Hurst.30 Alabama law is relevant to the Delaware

statute. Its statute, like Florida‘s, gives the jury only an advisory role in a death

30
 See Kirksey v. Alabama, 2016 WL378578 (June 6, 2016); Wimbley v. Alabama, 2016
WL410937 (May 31, 2016); Johnson v. Alabama, 136 S.Ct. 1837, 1837 (May 2, 2016).
                                         9
penalty sentencing. After Ring, Alabama did not amend its death penalty statute,

but the Alabama Supreme Court performed a judicial ―repair‖ to bring Alabama

into compliance with Ring.31 In Ex parte McGriff, it stated as follows:

          At no time during a retrial of the charge against McGriff should
          the jury be told that its decision on the issue of whether the
          proffered aggravating circumstance exists is ―advisory‖ or
          ―recommending.‖ Rather, the jury should be instructed that, if
          it determines that the aggravating circumstance does not exist,
          the jury must return a verdict, binding on the trial court,
          assessing life imprisonment without the possibility of parole as
          the penalty. The jury should further be instructed that, if and
          only if, it unanimously finds the aggravating circumstance to
          exist beyond a reasonable doubt, the jury should weigh the
          aggravating circumstance against the mitigating circumstance
          or circumstances, if any, and to return a verdict in accordance
          with § 13A-5-46(e)(2) and (3) and (f) . . . .32
The jury‘s verdict in the weighing process, like in Delaware, is advisory.

       On June 17, 2016, after the remand orders, the Court of Criminal Appeals of

Alabama, in Ex parte State,33 in essence published its reconsideration of Ring after

Hurst. It soundly rejected the view that Hurst broadened Ring, stating:

          The Court in Hurst did nothing more than apply its previous
          holdings in Apprendi and Ring to Florida‘s capital-sentencing
          scheme.     The Court did not announce a new rule of
          constitutional law, nor did it expand its holdings in Apprendi
          and Ring. As the State correctly argues, ―Hurst did not add
          anything of substance to Ring.‖34



31
   Ex parte McGriff, 908 So.2d 1024, 1037-39 (Ala. 2004).
32
   Id. at 1038.
33
   2016 WL 3364689 (Ala. Crim. App. June 17, 2016).
34
   Id. at *6.
                                             10
Until the U.S. Supreme Court speaks more clearly otherwise, I agree with this

ruling by the Court of Criminal Appeals of Alabama.

         Justice Scalia, who at the time of his concurrence in Ring believed the Sixth

Amendment allows a State to give death penalty sentencing authority to a judge, is

with the majority in Hurst. If he had changed his mind since Ring, I think he

would have said so and explained why. Justice Breyer is still just concurring in the

judgment only because he believes the Eighth Amendment requires jury

sentencing. And, as before, all of the other Justices passed on the opportunity to

join in his concurrence.

         I do think that there is ambiguity in Hurst. A concurring judge in the June

17, 2016 Alabama case I mention above suggests that the vagueness may be

deliberate, and I wonder the same thing.35 Justice Sotomayor, for instance, states

in her dissent from the denial of certiorari in Woodward v. Alabama that a finding

that the aggravating factors outweigh the mitigating factors is a finding of fact

which must be made by a jury.36 The case would have given the U.S. Supreme

Court an opportunity to review the Alabama death penalty statute. However, there

apparently were not three other Justices who agreed with her that certiorari should

be granted. In Woodward she was writing for herself. In Hurst she was writing for


35
     Id. at *13.
36
     Woodward v. Alabama, 134 S.Ct. 405, 410-11 (Nov. 18, 2013).

                                              11
a majority of seven. I read Hurst as stopping short of what Justice Sotomayor

stated very clearly in her dissent in Woodward.

      Until the U.S. Supreme Court resolves this vagueness, I resolve it by

concluding that Hurst applies Ring as interpreted by Brice but does not broaden it.

I am satisfied that Delaware‘s death penalty statute complies with the Sixth

Amendment as the law on that amendment is currently interpreted by the U.S.

Supreme Court. Therefore, I answer the certified questions as follows:

      1.    Yes, so long as the jury has first found the existence of at least one
            statutory aggravating factor unanimously and beyond a reasonable
            doubt;

      2.    Given my answer to Number 1, my answer to Number 2 is No;

      3.    No;

      4.    Given my answers to the previous questions, my answer to Number 4
            is No; and
      5.    Given my answers to the previous questions, Number 5 is not
            applicable. I do agree that 11 Del. C. § 4209 is not severable.




                                        12
