Document Type

Article

Publication Date

2025

Abstract

In Alabama, one of the jurisdictions most responsible for executions in the United States, the death penalty statute contains a very unusual provision: juries can sentence defendants to death even if they are not unanimous. This is a surprising fact to many people, including lawyers, who largely believe that the U.S. Supreme Court eliminated non-unanimous juries in 2020. That provision is enormously important to the capital punishment regime in Alabama, where 80% of people on death row were sentenced non-unanimously. The law's history, however, is poorly understood. This article lays out that history, showing it to be part of the state's reaction to increasing Black political participation in the 1960s and 1970s. It also examines the Alabama Supreme Court's interpretation of the state's constitutional jury trial right. Applying that standard to the history of both jury unanimity and jury sentencing in Alabama, this article contends that non-unanimous sentencing is unconstitutional under state law and argues that Alabama's longstanding and fierce commitment to protecting individual rights to freedom and life via jury unanimity must be recovered in its capital sentencing procedures.

Comments

Berkeley Journal of Criminal Law, Vol. 30, Issue 2 (2025), pp. 396-427

Download

Share

COinS