Topic:
SENTENCING; CAPITAL PUNISHMENT; JURIES;
Location:
CAPITAL PUNISHMENT; JURIES;

OLR Research Report


February 10, 2005

 

2005-R-0153

JURIES IN DEATH PENALTY SENTENCING HEARINGS

By: Christopher Reinhart, Senior Attorney

You asked what happens in Connecticut when a jury in a death penalty case cannot agree on whether to impose a death sentence and what happens in other states.

SUMMARY

The Connecticut Supreme Court has ruled that Connecticut's death penalty sentencing statute does not mandate a specific outcome when the jury is not unanimous in its decision on whether to impose the death penalty (CGS 53a-46a(b)). The court stated that the statute neither authorizes the death penalty nor requires imposition of a life sentence in these circumstances. The court stated that the trial court has discretion to declare a mistrial and can impanel a new jury to retry the penalty phase. The court added that the legislature presumably agrees with this interpretation since the court first expressed it in 1988 (see State v. Daniels, 207 Conn. 374) and the legislature has not changed this statutory provision (State v. Peeler, 271 Conn. 338, at 424-430 (2004)).

We looked at statutes in other states with the death penalty. We found:

1. 20 states where the court must impose a lesser penalty when the jury cannot agree on whether to impose the death penalty,

2. four states where the jury can continue to deliberate on penalties other than the death penalty before the court imposes a sentence,

3. one state where the judge has the option of imposing a sentence of life imprisonment without parole or impaneling a new jury, and

4. two states where statutes authorize the court to impanel a new jury if the first jury cannot reach a verdict.

In four states, we did not find a clear provision on this question (Kentucky, Montana, South Dakota, and Texas). In the remaining six death penalty states, the sentencing procedures include a role for the judge as well as the jury in sentencing, which does not directly compare to the other states and may also raise constitutional concerns after the U.S. Supreme Court's ruling in Ring v. Arizona, where the court ruled that findings that make a person eligible for a higher penalty must be found by a jury and not a judge.

OTHER STATES

Sentence to Lesser Punishment

In the following states, the court must impose a lesser penalty when the jury cannot agree on whether to impose the death penalty.

1. Arkansas: If the jury does not unanimously make the required findings to impose the death penalty, the court must impose a sentence of life without parole (Ark. Code 5-4-603).

2. Colorado: The jury is discharged if its verdict is not unanimous and the court must sentence the defendant to life imprisonment (Colo. Stat. 18-1.3-1201(2)(d)).

3. Georgia: When the jury unanimously finds at least one aggravating circumstance but cannot reach a unanimous conclusion on the sentence, the judge must dismiss the jury and impose either a life sentence or life without parole. The judge can only impose life without parole if the court finds an aggravating circumstance beyond a reasonable doubt and a majority of the jurors voted for death or life without parole in their last vote (Ga. Code 17-10-31.1).

4. Idaho: If the jury cannot unanimously agree on whether mitigating circumstances make imposing the death penalty unjust, the defendant is sentenced to life imprisonment without possibility of parole. If the jury cannot unanimously agree on the existence of a statutory aggravating circumstance, the defendant is sentenced to life imprisonment with a fixed term of at least 10 years (Idaho Code 19-2515(7)).

5. Illinois: If after weighing the factors in aggravation and mitigation, at least one juror determines that death is not appropriate, the court must sentence the defendant to a term of imprisonment (720 ILCS 5/9-1(g)). The jury's inability to agree to impose a death sentence does not result in a mistrial but precludes the death penalty (People v. Whitehead, 508 N.E.2d 687 (Ill. 1987)).

6. Kansas: If, after a reasonable time for deliberation, the jury is unable to reach a verdict, the judge dismisses the jury and impose a sentence of imprisonment as provided by law (Kan. Stat. 21-4624).

7. Louisiana: If the jury cannot unanimously agree on a determination, the court imposes a sentence of life imprisonment without probation, parole, or suspension of sentence (La. Code Crim. Proc. Art. 905.8).

8. Mississippi: If the jury cannot reach a decision to impose the death penalty or life imprisonment without parole, the court must impose a sentence of life imprisonment (Miss. Code 99-19-101).

9. Missouri: If the jury cannot decide or agree on punishment, the court must sentence the defendant to life imprisonment without probation, parole, or release except by act of the governor (Mo. Stat. 565.030(4)).

10. New Hampshire: If the jury cannot agree on punishment within a reasonable time, the judge must impose a sentence of life imprisonment without parole (N.H. Stat. 630:5(IX)).

11. New Jersey: If the jury cannot reach a unanimous verdict, the court must sentence the defendant. The penalty is life imprisonment without parole if the jury could not reach a unanimous verdict as to the weight of the aggravating and mitigating factors. The same or a lesser penalty may apply in other circumstances (N.J. Rev. Stat. 2C: 11-3(b) and (c)(3)(c)).

12. New Mexico: If the jury cannot reach a unanimous verdict, the court must sentence the defendant to life imprisonment (N.M. Stat. 31-20A-3).

13. New York: If the jury fails to reach unanimous agreement on the sentence, the court sentences the defendant to a minimum of 20 to 25 years to a maximum of life in prison (N.Y. Crim. Proc. 400.27).

14. North Carolina: If the jury cannot unanimously agree to its sentence recommendation within a reasonable time, the judge must impose a sentence of life imprisonment (N.C. Gen. Stat. 15A-2000).

15. Oklahoma: If the jury cannot agree on punishment within a reasonable time, the judge must dismiss the jury and impose a sentence of (a) life imprisonment without parole or (b) life imprisonment (Ok. Stat. 21-701.11).

16. Oregon: The jury must answer four specific questions. The jury must answer “no” to the question of whether the defendant should receive the death penalty if after considering aggravating and mitigating evidence one or more jurors believe the defendant should not receive a death sentence. The court then sentences the defendant to (1) life without release or parole or (2) life if at least 10 jurors found sufficient mitigating circumstances to warrant that sentence (Or. Rev. Stat. 163.150(1)(c)(B)).

17. Pennsylvania: The court has discretion to discharge the jury if the court believes that further deliberations will not result in unanimous agreement on sentencing. The court then imposes a sentence of life imprisonment (18 Pa.C.S.A. 9711(c)).

18. South Carolina: If the jury, after reasonable deliberation, cannot agree on a recommendation on whether to impose a death sentence, the judge must dismiss the jury and sentence the defendant to life imprisonment (S.C. Code 16-3-20).

19. Virginia: If the jury cannot agree on the penalty, the court must dismiss the jury and impose a sentence of life imprisonment (Va. Code 19.2-264.4(E)).

20. Washington: If the jury does not return a unanimous affirmative answer to the question of whether there are sufficient mitigating circumstances to merit leniency, the defendant is sentenced to life imprisonment (RCW 10.95.080 and 10.95.060(4)).

Further Jury Deliberation on Lesser Punishment Before Court Imposes Sentence

In four states, statutes can require the jury to continue to deliberate on penalties other than the death penalty before the court imposes a sentence.

1. Maryland: If the jury cannot agree on whether to impose a death sentence within a reasonable time, the court cannot impose a death sentence. Depending on the circumstances: (a) the defendant is sentenced to life imprisonment or (b) there is a further determination of whether to sentence the person to life without parole and the defendant is sentenced to life imprisonment if the jury cannot agree within a reasonable time whether to impose life without parole (Md. Stat. 2-303(j) and 2-304).

2. Tennessee: If the jury cannot agree on punishment, the court asks the jury foreman whether the jury is divided on imposing a death sentence. If the jury is divided on the death sentence, the judge instructs them to consider only life imprisonment without parole and life imprisonment in further deliberations. If the jury still cannot agree, the judge dismisses the jury and imposes a life sentence (Tenn. Code 39-13-204(h)).

3. Utah: If the jury cannot reach a unanimous decision to impose a death sentence, the jury must then determine whether to impose life without parole. If at least ten jurors agree on a sentence of life without parole, the court imposes that sentence. If at least ten jurors do not agree to that sentence, the court imposes an indeterminate sentence of 20 years to life imprisonment (Utah Code 76-3-207(5)(c)).

4. Wyoming: If the jury cannot reach a unanimous verdict to impose a death sentence within a reasonable time, the court must instruct the jury to determine by a unanimous vote whether to impose a sentence of life imprisonment without parole. If the jury cannot make that determination within a reasonable time, the court must impose a sentence of life imprisonment (Wyo. Stat. 6-2-102(d)(ii)).

Discretion to Impose Lesser Sentence or Impanel New Jury

In Nevada, if the jury cannot reach a unanimous verdict on sentencing, the judge can (a) impose a sentence of life imprisonment without parole or (b) impanel a new jury to determine the sentence (Nev. Stat. 175.556).

Impanel New Jury

We found two states where statutes authorize the court to impanel a new jury if the first jury cannot reach a verdict.

1. Arizona: After a defendant is found guilty of 1st degree murder, there are two stages to determine the appropriate sentence: (a) an aggravation phase to determine whether aggravating circumstances exist and (b) a penalty phase to determine whether to impose the death penalty. If the jury cannot reach a verdict on any aggravating circumstances and none have been proven, the court dismisses the jury and impanels a new one. The new jury does not consider any aggravating circumstances the first jury found not proven by a unanimous verdict. If the new jury cannot reach a unanimous verdict, the court imposes a sentence of life or natural life. At the penalty phase, if the jury cannot reach a verdict, the court dismisses the jury and impanels a new one. The new jury does not consider any aggravating circumstances the first jury could not find proven or not proven by a unanimous verdict. If the new jury cannot reach a unanimous verdict, the court imposes a sentence of life or natural life (Ariz. Rev. Stat. 13-703.01(J) and (L)).

2. California: If the jury cannot reach a unanimous verdict on the penalty, the court dismisses the jury and orders a new jury impaneled. If the new jury cannot reach a unanimous verdict, the court has discretion to order a new jury or impose a sentence of life without parole (Cal. Penal Code 190.4(b)).

Other Sentencing Procedures

In a few other states, sentencing procedures include a role for the judge as well as the jury in determining whether a defendant receives a death sentence. The constitutionality of these provisions is unclear after the U.S. Supreme Court's ruling in Ring v. Arizona (536 U.S. 584 (2002)), where the court ruled that findings that make a person eligible for a higher penalty must be found by a jury and not a judge.

The relevant provisions in these states are described below.

1. Alabama: The jury provides an advisory verdict that is not binding on the court. If the jury cannot reach an advisory verdict recommending a sentence, or for other manifest necessity, the court can declare a mistrial and another sentencing hearing can be conducted before another jury. The parties and the court can agree to waive the advisory verdict after one or more mistrials and the court will determine the sentence without a jury recommendation (Ala. Code 13A-5-46).

2. Delaware: A death sentence cannot be imposed unless the jury finds an aggravating circumstance. If the jury finds an aggravating circumstance, the court determines whether aggravating circumstances outweigh the mitigating circumstances, after considering the findings and recommendation of the jury and without hearing or reviewing additional evidence. The jury's recommendation is given consideration as the court deems appropriate but is not binding. Otherwise, the court imposes a sentence of imprisonment for natural life without probation, parole, or other reduction (Del. Code 11 4209(d)).

3. Florida: The jury renders an advisory sentence and the court determines the sentence, notwithstanding the recommendation of the majority of the jury (Fl. Stat. 921.141).

4. Indiana: The jury must recommend whether death, life without parole, or neither should be imposed. For the jury to recommend death or life without parole, it must find at least one aggravating circumstance and that the aggravating circumstances outweigh mitigating ones. If the jury reaches a sentencing recommendation, the court must impose that sentence. If the jury cannot agree on a recommendation after reasonable deliberations, the court discharges the jury and proceeds as if the hearing had been to the court alone (Ind. Code 35-50-2-9(d)).

5. Nebraska: After conviction, there is an aggravation hearing where the jury determines whether the alleged aggravating circumstances exist or do not exist. If the jury cannot reach a unanimous verdict on an aggravating circumstance, that circumstance cannot be weighed in the sentencing determination. If no aggravating circumstance is found, the court sentences the defendant to life

without parole. If an aggravating circumstance is found, the court convenes a panel of three judges to hear mitigating evidence and consider sentence excessiveness or disproportionality. The judges must unanimously agree to impose the death penalty, otherwise the penalty is life imprisonment without parole (Neb. Stat. 29-2520 et seq.).

6. Ohio: The jury must recommend a death sentence if it unanimously finds that aggravating circumstance outweigh mitigating factors. Without such a finding, the jury must recommend a sentence of life without parole or life with parole eligibility after 25 or 30 years, depending on the circumstances. For a death sentence recommendation, the court must consider the evidence and find that the aggravating circumstance outweigh mitigating factors in order to impose the death sentence. Otherwise, the court must impose one of the lesser sentences (Ohio Code 2929.03(D)).

CR:ts