More than Just a Factfinder: The Right to Unanimous Jury Sentencing in Capital Cases

Abstract

For some defendants, sentencing may be even more harrowing than a determination of guilt or innocence. Those facing capital punishment have the most to lose at the sentencing phase. The Supreme Court is not ignorant to this reality, finding in Ring v. Arizona that “the Sixth Amendment would be senselessly diminished” if it had no application to death penalty proceedings. Yet under its permissive jurisprudence, the Court has suggested that the Sixth Amendment is satisfied in the death penalty context even if its protections vanish postconviction. This Note argues instead that the Sixth Amendment—specifically the jury right—should protect defendants more during the capital sentencing phase, not less. Ultimately, it contends that defendants have a constitutional right to jury sentencing by a unanimous verdict before facing the death penalty.