Rauf v. State

Full title: BENJAMIN RAUF, Defendant-Appellant, v. STATE OF DELAWARE…

Court: SUPREME COURT OF DELAWARE

Date published: Aug 2, 2016

145 A.3d 430 (Del. 2016)

Opinion

No. 39, 2016

08-02-2016

BENJAMIN RAUF, Defendant-Appellant, v. STATE OF DELAWARE, Plaintiff-Appellee.

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

Summaries:

Source: Justia

Delaware charged 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 expressed its intention to seek the death penalty if Rauf was convicted on either of the First Degree Murder counts. In January 2016, the United States Supreme Court held in "Hurst v. Florida" that Florida's capital sentencing scheme was unconstitutional. In light of the "Hurst" decision, the trial court in this matter certified five questions of law to the Supreme Court, asking the Supreme Court to address the constitutionality of Delaware's 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." After review, the Court concluded that Delaware's death penalty statute conflicted with the Sixth Amendment, and prior cases on the constitutionality of Delaware's capital sentencing scheme were overruled to the extent they were inconsistent with this opinion.

Certification of Question of Law from the Superior Court of the State of Delaware. Cr. ID No. 1509009858.

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.

Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ, Justices, constituting the Court en Banc. STRINE, Chief Justice, concurring in the Majority per curiam, with whom Justice HOLLAND and Justice SEITZ join. HOLLAND, Justice, concurring in the Majority per curiam, with whom Chief Justice STRINE and Justice SEITZ join. VAUGHN, Justice, dissenting.

OPINION

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 1 1 1 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 2 2 2 2}

1 136 S.Ct. 616, 619, 193 L.Ed.2d 504 (2016).

1 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

1 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

1 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

1 136 S.Ct. 616, 616, 193 L.Ed.2d 504 (Jan. 12, 2016).

2 Rauf v. State, No. 39, 2016 (Del. Jan. 28, 2016) (ORDER).

2 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

2 Id. at 619.

2 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

2 530 U.S. 466, 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

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.

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?

No. Because Delaware's capital sentencing scheme allows the judge to do this,^{3 3 3 3 3} 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." ).

3 Id. at 619.

3 Rauf v. State, No. 39, 2016 (Del. Jan. 28, 2016) (ORDER).

3 Hurst, 136 S.Ct. at 622.

3 536 U.S. 584, 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

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 4 4 4 4} it is unconstitutional.

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." ).

4 Id. at 624.

4 Hurst, 136 S.Ct. at 619 (emphasis added).

4 Id. at 624.

4 Apprendi, 530 U.S. at 490.

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 5 5 5 5} it is unconstitutional.

5 See supra note 3.

5 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

5 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

5 Id. at 619.

5 Ring, 536 U.S. at 596.

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 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.

CONCUR

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. Georgia ¹ 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 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. Florida ² 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 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 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 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 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. 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 6 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).

6 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

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).

6 Id. at 592.

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 7 7 7} Instead, nearly all

7 See United States v. Grayson, 438 U.S. 41, 45, 98 S.Ct. 2610, 57 L.Ed.2d 582 (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, 130 S.Ct. 2499, 177 L.Ed.2d 1 (2010); Lillquist, supra note 6, at 641-43.

7 Hurst, 136 S.Ct. at 621 (quoting Apprendi, 530 U.S. at 494).

7 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), overruled in part byHurst v. Florida, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

7 Id. at 593 (quoting Ariz. Rev. Stat. Ann. § 13-703(F) (2001)).

felonies carried mandatory death sentences,^{8 8 8 8} as was traditional in England--the primary example upon which our criminal justice system was built.^{9 9 9 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 10 10 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 11 11 11} a trend that would gain momentum.^{12 12 12 12}

8 See Woodson v. North Carolina, 428 U.S. 280, 289, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Evan J. Mandery, Capital Punishment in America: A Balanced Examination xxi (2d ed. 2012).

8 Id.

8 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989) ( per curiam ), overruled in part byHurst v. Florida, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

8 Id. at 597 (quoting State v. Ring, 200 Ariz. 267, 25 P.3d 1139, 1151 (Ariz. 2001) ( en banc )).

9 See Douglass, supra note 6, at 1977-78.

9 Id. at 622.

9 Hurst, 136 S.Ct. at 623 (emphasis added).

9 Id.

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).

10 Id. (quoting Fla. Stat. § 775.082(1)).

10 Id. at 624 (emphasis added).

10 Id. at 589.

11 Woodson, 428 U.S. at 290; see also Hugo Adam Bedau, The Death Penalty in America: Current Controversies 4 (1997).

11 136 S.Ct. 633, 193 L.Ed.2d 535 (2016).

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, 193 L.Ed.2d 535 (2016).

11 497 U.S. 639, 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990).

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).

12 Id. at 642.

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).

12 Ring, 536 U.S. at 609.

From the beginning of our nation's history, the jury's role as the sentencer in capital cases " was unquestioned." ^{13 13 13 13} This was true in Delaware, where juries made the life or death decision at the beginning of our history.^{14 14 14 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 15 15 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 16 16 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.

13 Walton v. Arizona, 497 U.S. 639, 710-11, 110 S.Ct. 3047, 111 L.Ed.2d 511 (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).

13 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), overruled byHurst v. Florida, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

13 75 A.3d 840 (Del. 2013).

13 Id. at 612 (Scalia, J., concurring).

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, 5 Harr. 475 (Gen. Sess. 1854).

14 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989), overruled byHurst v. Florida, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

14 869 A.2d 285 (Del. 2005), cert. denied, 546 U.S. 832, 126 S.Ct. 55, 163 L.Ed.2d 84 (2005).

14 815 A.2d 314, 314 (Del. 2003).

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).

15 Hurst, 136 S.Ct. at 624.

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.

15 Ring, 536 U.S. at 589.

16 Douglass, supra note 6, at 1972.

16 11 Del. C. § 4209(c).

16 Apprendi v. New Jersey, 530 U.S. 466, 494 n.19, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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)).

16 Hurst, 136 S.Ct. at 620.

The starkest way in which juries did this was by acquitting a defendant who was obviously guilty.^{17 17 17 17} By this crude action of

17 See Woodson, 428 U.S. at 293; see also Roberts v. Louisiana, 428 U.S. 325, 360, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (White, J., dissenting); Furman v. Georgia, 408 U.S. 238, 298, 92 S.Ct. 2726, 33 L.Ed.2d 346 (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, 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).

17 11 Del. C. § 4209(c)(3)(b.1) (emphasis added).

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)).

17 490 U.S. 638, 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989).

nullification, a jury could exercise 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 18 18 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 19 19 19}

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.").

18 Id. (emphasis added).

18 Hurst, 136 S.Ct. at 624.

18 468 U.S. 447, 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1968).

19 C.F. Adams, The Works of John Adams 255 (1865).

19 See id.;Hurst, 136 S.Ct. at 622.

19 See 11 Del. C. § 4209(d)(1)-(2).

19 Hurst, 136 S.Ct. at 619.

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 20 20 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 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 21 21 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 22 22 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 23 23 23}

20 See supra note 12 and accompanying text.

20 11 Del. C. § 4209(d)(1).

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 fact finding. Florida's sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional." ).

20 Id. at 621-22.

21 See Woodson, 428 U.S. at 291.

21 Apprendi, 530 U.S. at 477 (internal citations omitted).

21 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

21 Id. at 620-21 (citations omitted).

22 See Del. C. ch. 127 § § 1, 2 (1852).

22 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972).

22 Id. at 490.

22 Id. at 622 (internal quotation marks omitted).

23 See State v. Reidell, 14 Del. 470, 9 Houst. 470, 14 A. 550, 550 (Del. 1888).

23 Johnson v. Louisiana, 406 U.S. 356, 369-80, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) (Powell, J., concurring in the judgment in Apacada ).

23 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

23 Hurst v. Florida, 135 S.Ct. 1531, 1531, 191 L.Ed.2d 558 (2015).

About half of the states adopted discretionary statutes by 1900, and even more states followed soon after.^{24 24 24 24} In 1899, the U.S. Supreme Court itself well-summarized some of the key developments:

24 See Woodson, 428 U.S. at 291; Bedau, supra note 11, at 5-6; Bye, supra note 12, at 7-8.

24 SeeMcDonald v. City of Chicago, 561 U.S. 742, 765-66, 766 n.14, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

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).

24 Hildwin, 490 U.S. at 640-41.

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 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 25 25 25}

25 Winston v. United States, 172 U.S. 303, 310-12, 19 S.Ct. 212, 43 L.Ed. 456 (1899).

25 Apprendi, 530 U.S. at 498 (Scalia, J., concurring) (emphasis in original).

25 Id. at 304 (internal citation omitted).

25 Brief of Petitioner at 25, Hurst v. Florida, 136 S.Ct. 616, 193 L.Ed.2d 504 (Jan. 12, 2016) (No. 14-7505), 2015 WL 3542784 at *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 26 26 26} But even with these exceptions, the overall picture was remarkably consistent: Defendants received death sentences only when the jury determined they should. And that jury determination had to be unanimous.^{27 27 27 27}

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, 26 L.Ed. 567 (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. Seeid. 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." ).

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 alsoCapano 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." ).

26 Id.

26 Id.

27 See Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880, 92 L.Ed. 1055 (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." ).

27 Hurst, 136 S.Ct. at 621 (quoting Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)).

27 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

27 Transcript of Oral Argument at 3, Hurst v. Florida, 136 S.Ct. 616, 193 L.Ed.2d 504 (Jan. 12, 2016) (No. 14-7505), 2015 WL 5970064, at *3.

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 28 28 28} As mentioned, the term " prison" was itself not the right word, as we did not have an institutionalized system for incarcerating defendants.^{29 29 29 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 30 30 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, institutions such as so-called " penitentiaries" where defendants could do penance for their misdeeds emerged.^{31 31 31 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 32 32 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.

28 See Joel Samaha, Criminal Procedure 475 (2011); Corinna Barrett Lain, Furman Fundamentals, 82 Wash. L.Rev. 1, 23 (2007).

28 Ring, 536 U.S. at 610 (Scalia, J., concurring).

28 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (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.

28 Id. at *4.

29 See supra note 7 and accompanying text.

29 Brice v. State, 815 A.2d 314, 322 (Del. 2003).

29 Alleyne, 133 S.Ct. at 2157 (quoting Harris, 536 U.S. at 557, 560-61, 567) (internal citations omitted) (internal quotation marks omitted).

29 Id. at *12.

30 See Wright, supra note 13, at 1374-75; King, supra note 15, at 985-86.

30 Id.

30 Id. at 2155 (quoting 18 U.S.C. § 924(c)(1)(A)) (internal quotation marks omitted).

30 See Kirksey v. Alabama, 136 S.Ct. 2409, 195 L.Ed.2d 777, 2016 WL 378578 (June 6, 2016); Wimbley v. Alabama, 136 S.Ct. 2387, 195 L.Ed.2d 760, 2016 WL 410937 (2016); Johnson v. Alabama, 136 S.Ct. 1837, 1837, 194 L.Ed.2d 828 (May 2, 2016).

31 See United States v. Moreland, 258 U.S. 433, 448, 42 S.Ct. 368, 66 L.Ed. 700 (1922); see also ARTHUR W. CAMPBELL, LAW OF SENTENCING § 1.2, at 6-9 (3d ed. 2004); Douglass, supra note 6, at 2018.

31 Hurst, 136 S.Ct. at 622.

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, 130 S.Ct. 2683, 177 L.Ed.2d 271 (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).

31 Ex parte McGriff, 908 So.2d 1024, 1037-39 (Ala. 2004).

32 See Hoffman, supra note 6, at 965; Lillquist, supra note 6, at 628-29.

32 Id. (internal quotations marks and alterations omitted). Accord 11 Del. C. § 4209(d)(1).

32 Id. at 2161 (internal citations omitted).

32 Id. at 1038.

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 33 33 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 protections to the same extent as the federal government rose in the era after World War II and crested in the 1960s.^{34 34 34 34}

33 See Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

33 Del. H.B. 287 syn., 142nd Gen. Assem., 74 Del. Laws ch. 174 (2003).

33 Id. at 2162; see alsoid. 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." ).

33 2016 WL 3364689 (Ala.Crim.App. June 17, 2016).

34 See, e.g., In re Oliver, 333 U.S. 257, 271-73, 68 S.Ct. 499, 92 L.Ed. 682 (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, 69 S.Ct. 1359, 93 L.Ed. 1782 (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 imu..sit 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, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513 (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, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (incorporating the Eighth Amendment protection against cruel and unusual punishment); Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (incorporating the Sixth Amendment guarantee of counsel for indigent defendants in felony cases); Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 10 L.Ed.2d 726 (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, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) (incorporating the Fifth Amendment protection against compelled self-incrimination); Aguilar v. Texas, 378 U.S. 108, 110, 84 S.Ct. 1509, 12 L.Ed.2d 723 (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, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (incorporating the Sixth Amendment right of an accused to confront prosecution witnesses); Parker v. Gladden, 385 U.S. 363, 364, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) (incorporating the Sixth Amendment right to trial by an impartial jury); Klopfer v. North Carolina, 386 U.S. 213, 222-23, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) (incorporating the Sixth Amendment right to a speedy trial); Washington v. Texas, 388 U.S. 14, 19-20, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (incorporating the Sixth Amendment right to have compulsory process for obtaining defense witnesses); Duncan v. Louisiana, 391 U.S. 145, 149, 158, 88 S.Ct. 1444, 20 L.Ed.2d 491 (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, 89 S.Ct. 2056, 23 L.Ed.2d 707 (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." ).

34 SeeHurst, 136 S.Ct. at 622; 11 Del. C. § 4209.

34 Id. at 2162 (citations omitted); see alsoBlakely, 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)).

34 Id. at *6.

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 35 35 35} Delaware even did that for a brief period, from 1958 to 1961.^{36 36 36 36} 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 judge^{37 37 37}--a choice juries did not have in the early years of Delaware's death penalty.^{38 38 38} This mercy safety valve was first instituted in Delaware for murder cases in 1917.^{39 39 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 40 40} But, by allowing the sentencing judge to disregard that mercy recommendation and instead impose death, Delaware was nearly alone.^{41 41 41}

35 SeeWoodson, 428 U.S. at 291.

35 815 A.2d 314 (Del. 2003).

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 " ).

35 Id. at *13.

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 (2015); Glenn W. Samuelson, Why Was Capital Punishment Restored in Delaware ?, 60 J. CRIM. L. & CRIMINOLOGY 148, 148 (1969).

36 Id. at 322.

36 815 A.2d 314 (Del. 2003).

36 Woodward v. Alabama, 134 S.Ct. 405, 410-11, 187 L.Ed.2d 449 (Nov. 18, 2013).

37 See 29 Del. C. ch. 266 (1917); see also State v. Thomas, 31 Del. 102, 1 W.W. Harr. 102, 111 A. 538, 539 (Del. 1920); State v. Carey, 36 Del. 521, 6 W.W. Harr. 521, 178 A. 877, 878 (Del. O. & . T. 1935).

37 Id.

37 Id. at 322.

38 See Dickerson, 298 A.2d at 764 n.6.

38 Id. at 319.

38 Hurst, 136 S.Ct. at 624; see alsoid. 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 id.

39 Hurst, 136 S.Ct. at 624.

39 See supra note 12.

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).

40 134 S.Ct. 405, 187 L.Ed.2d 449 (2013).

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 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).

41 Id. at 406.

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)).

" 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 remaining jurisdictions had replaced their automatic death penalty statutes with discretionary jury sentencing." ^{42 42 42}

42 Woodson, 428 U.S. at 291-92; see alsoAndres, 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, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971).

42 Id. at 410-11 (Sotomayor, J., dissenting).

42 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972).

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. Illinois ^{43 43 43} in 1968 that capital juries " express the conscience of the community on the ultimate question of life or death." ^{44 44 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 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. Lousiana ^{46 46} that the Fourteenth Amendment incorporates the Sixth Amendment's right to a jury trial.^{47 47}

43 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

43 Hurst, 136 S.Ct. at 619 (emphasis added).

43 See Johnson v. Louisiana, 406 U.S. 356, 369-75, 92 S.Ct. 1620, 32 L.Ed.2d 152 (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, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (citing Apodaca, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184; Johnson, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials)); Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 56 L.Ed. 1038 (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 Id. at 519.

44 Id. at 622.

44 Apodaca, 406 U.S. at 411 (joint opinion of White, J., Burger, C.J., Blackmun and Rehnquist, JJ.).

45 Seeid. at 525-27 & nn. 2-8; Bryan A. Stevenson, The Ultimate Authority on the Ultimate Punishment, 54 ALA. L. REV. 1091, 1140 (2003); see alsoJohnson v. Texas, 509 U.S. 350, 359, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993); Lockett v. Ohio, 438 U.S. 586, 597-98, 98 S.Ct. 2954, 57 L.Ed.2d 973 (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.

45 Id.

46 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491.

46 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).

47 Seeid. at 149; see alsoParker, 385 U.S. at 364.

47 Id. at 766 n.14 (internal citations omitted).

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. 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 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 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:

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.

48 Id.; see also Richardson v. United States, 526 U.S. 813, 821, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) (" The cases are not federal but state, where this Court has not held that the Constitution imposes a jury-unanimity requirement." (citation omitted)).

49 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), overruled byCrampton v. Ohio, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972).

49 See Brief for Petitioner at 45-47, Hurst v. Florida, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) (No. 14-7505), 2015 WL 3523406.

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 50}

50 Id. at 207-08.

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. SeeWilson 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, 52 Del. 533, 161 A.2d 795, 2 Storey 533 (Del. 1960)). Accordingly, " [t]his Court and the other courts of Delaware 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).

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 51} McGautha seemed to signal the Supreme Court's view that juries could, as a general matter, be trusted to exercise the 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.

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.

51 Ring, 536 U.S. at 602 (citing Apprendi, 530 U.S. at 482-83).

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 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 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 54} Because there was a jury trial in each of the three cases, under the Georgia and Texas statutes a jury ultimately sentenced each of the defendants to death.^{55 55}

52 SeeLockett, 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).

52 Hurst, 136 S.Ct. at 621 (quoting Apprendi, 530 U.S. at 494) (alterations in Hurst and added).

53 SeeFurman, 408 U.S. at 239.

53 Carr, 136 S.Ct. at 642.

54 Seeid. at 240 (Douglas, J., concurring).

54 See Ring, 536 U.S. at 602 (quoting Apprendi, 530 U.S. at 483) (internal quotation marks omitted).

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).

55 Spaziano, 468 U.S. at 464.

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 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 57} The splintered Court held that it did.

56 Lain, supra note 28, at 16-17.

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 Furman, 408 U.S. at 239.

57 134 S.Ct. 405, 410-11, 187 L.Ed.2d 449 (2013) (Sotomayor, J., dissenting from denial of certiorari ).

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 58} But, like the situation we find ourselves in today, the Court's majority could not agree on exactly why that was so.^{59 59} Three Justices, each authoring a separate concurring opinion, voted to strike down the death sentences because the death 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 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 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 62}

58 Id. at 239-40 (emphasis added).

58 Id. (emphasis added) (internal citations omitted).

59 See Lain, supra note 28, at 10-11.

59 Libretti v. United States, 516 U.S. 29, 49, 116 S.Ct. 356, 133 L.Ed.2d 271 (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, 112 S.Ct. 2222, 119 L.Ed.2d 492 (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, 110 S.Ct. 1441, 108 L.Ed.2d 725 (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 SeeFurman, 408 U.S. at 256-57 (Douglas, J., concurring); id. at 308, 310 (Stewart, J., concurring); id. at 310-11, 313 (White, J., concurring).

60 Spaziano, 468 U.S. at 459 (citations omitted).

61 6 LAFAVE, ET AL., supra note 12, § 26.1(b), at 671.

61 Id. at 462-63 (footnote omitted).

62 SeeFurman, 408 U.S. at 305 (Brennan, J., concurring); id. at 369 (Marshall, J., concurring).

62 Ring, 536 U.S. at 612-13 (Scalia, J., concurring).

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 63} In other words, what Furman established is that the sentencer in a capital case cannot have " unbridled discretion" in sentencing a defendant.^{64 64}

63 Gregg, 428 U.S. at 189; see alsoZant v. Stephens, 462 U.S. 862, 876-77, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); Douglass, supra note 6, at 1994.

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 S.Ct. 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 alsoid. 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 Woodson, 428 U.S. at 285 (emphasis added); see alsoEddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Douglass, supra note 6, at 1995.

64 Hurst, 136 S.Ct. at 623-24.

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 65} and creating a de facto moratorium on executions.^{66 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 67} But after Furman, the prior

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.

65 Ring, 536 U.S. at 597 n.4 (citing Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (plurality opinion) (" [I]t has never [been] suggested that jury sentencing is constitutionally required." (alterations in Ring ))).

66 SeeBaze v. Rees, 553 U.S. 35, 88, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (Scalia, J., concurring); Lain, supra note 28, at 19.

66 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (plurality opinion).

67 Lain, supra note 28, at 45; see alsoFurman, 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).

67 Seeid. 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)).

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 68} Indeed, after Furman defendants again began being given death sentences at very high rates.^{69 69}

68 SeeCallins v. Collins, 510 U.S. 1141, 1144, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994) (Scalia, J., concurring).

68 Id. (citing Witherspoon v. Illinois, 391 U.S. 510, 519 n.15, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)) (emphasis added).

69 See Lain, supra note 28, at 47-49; Smith, supra note 48, at 290; ZIMRING & HAWKINS, supra note 65, at 39.

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)).

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 70} Many other states enacted mandatory statutes, which outlined a specific category of crimes for which the death penalty was the required sentence.^{71 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 72}

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 ).

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 See Lain, supra note 28, at 56-57.

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 See Poulos, supra note 10, at 186.

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. SeeBond v. United States, 134 S.Ct. 2077, 2089, 189 L.Ed.2d 1 (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 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, 101 S.Ct. 1531, 67 L.Ed.2d 694 (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, 2 L.Ed. 60 (1803), I reject the more expansive interpretation of Hurst that three of my distinguished colleagues gave it.

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 73} Thus, the post- Furman capital sentencing statutes often included lists of aggravating factors intended to narrow the scope of death eligible crimes and defendants.^{74 74}

73 See Liebman, supra note 52, at 10.

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 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 See id. ; Douglass, supra note 6, at 1994.

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)).

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 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 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 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 78} In

75 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

75 H.B. 287, 142nd Gen. Assemb., 1st Reg. Sess., 74 Del. Laws ch. 174 (Del. 2003).

76 See Liebman, supra note 52, at 28.

76 Id.

77 Lain, supra note 28, at 55 n.317.

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 SeeGregg, 428 U.S. at 168-69.

78 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015).

keeping with what it then viewed as the popular opinion in the United States,^{79 79} the Court held in Gregg " that the punishment of death does not invariably violate the Constitution," and specifically the Eighth Amendment.^{80 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 81}

79 Seeid. 179.

79 Id. at 2739 (citing Baze v. Rees, 553 U.S. 35, 47, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008); id. at 87-88 (Scalia, J., concurring in judgment); Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 49 L.Ed.2d 859 (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, 67 S.Ct. 374, 91 L.Ed. 422 (1947); In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519 (1890); Wilkerson v. Utah, 99 U.S. 130, 134-35, 25 L.Ed. 345 (1878)).

80 Id. at 169; see alsoJurek v. Texas, 428 U.S. 262, 268, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).

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 )).

81 Gregg, 428 U.S. at 187; see alsoKansas v. Marsh, 548 U.S. 163, 173-74, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006).

81 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (plurality opinion).

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 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 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 objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death." ^{84 84}

82 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944.

82 Id. at 638 (citation omitted) (internal quotation marks omitted).

83 Id. at 289, 293; see alsoRoberts v. Louisiana, 428 U.S. 325, 335-36, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (same).

83 Id. (quoting Patterson v. New York, 432 U.S. 197, 201, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)) (internal quotation marks omitted).

84 Id. at 303.

84 Kirksey v. Alabama, 136 S.Ct. 2409, 195 L.Ed.2d 777 (2016); Wimbley v. Alabama, 136 S.Ct. 2387, 195 L.Ed.2d 760 (2016); Johnson v. Alabama, 136 S.Ct. 1837, 194 L.Ed.2d 828 (2016).

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 85} The Court explained:

85 Id.

85 Glossip, 135 S.Ct. at 2749-50 (Scalia, J., concurring).

[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

86 Id. at 304-05.

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 Court later expressly rejected in 1987⁸⁸--commentators viewed the mandatory approach as having been soundly rejected.⁸⁹

87 Seeid. at 287 n.7; id. at 292 n.25.

88 SeeSumner v. Shuman, 483 U.S. 66, 77-78, 107 S.Ct. 2716, 97 L.Ed.2d 56 (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).

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

90 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929.

91 Id. at 271; see alsoWoodson, 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.

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 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.

93 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

94 Id. at 252.

95 See supra note 47 and accompanying text.

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,

96 SeeJohnson v. Texas, 509 U.S. 350, 360, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993).

97 See Douglass, supra note 6, at 2024-25 (discussing this issue).

because states could not establish a mandatory death sentence regime.⁹⁸ And, states were required to take steps to limit the arbitrariness in the 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

98 See supra notes 82-89 and accompanying text.

99 See supra notes 63-64 and accompanying text.

100 Douglass, supra note 6, at 1995; see alsoid. at 2020.

101 SeeGregg, 428 U.S. at 173; Enmund v. Florida, 458 U.S. 782, 815, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (same); Weeks v. State, 653 A.2d 266, 270 (Del. 1995).

102 See, e.g.,Coker v. Georgia, 433 U.S. 584, 596, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); Clark v. State, 672 A.2d 1004, 1010 (Del. 1996).

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 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

103 See Douglass, supra note 6, at 1984; Stevenson, supra note 45, at 1140.

104 See Liebman, supra note 52, at 30-34.

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,

105 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), overruled byHurst v. Florida, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

106 Seeid. at 451.

and Spaziano contended " that allowing a judge to override a jury's recommendation of 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:

107 Id. at 457-58.

108 See, e.g., Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (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, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (privilege against self-incrimination and right to counsel under Massiah); Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) (double jeopardy); Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (right to confront and rebut government evidence)." ).

109 Spaziano, 468 U.S. at 465; see alsoid. at 464.

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 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

110 Id. at 458-59 (citations omitted) (quoting Bullington v. Missouri, 451 U.S. 430, 445, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981)) (internal quotation marks omitted).

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

111 Spaziano, 468 U.S. at 464.

The Court reaffirmed and extended its holding in Spaziano in several later cases, many of which also involved Florida's capital sentencing scheme. In 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

112 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989), overruled by Hurst v. Florida, 136 S.Ct. 616, 193 L.Ed.2d 504 (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.

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

116 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).

117 Seeid. at 745.

118 See id.

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

119 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511, overruled byRing v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

120 Seeid. at 648.

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

121 Id. at 649.

122 Seeid. at 650.

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

123 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995).

124 Id. at 505.

125 Id. at 509 (quoting Tedder v. State, 322 So.2d 908, 910 (Fla. 1975)).

126 Seeid. at 511.

127 Id. at 515.

* * *

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 jury sentencing in death penalty cases had been predominant throughout our nation's history before Furman ¹²⁸ 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

128 See supra note 15 and accompanying text.

129 SeeHarris, 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, 193 L.Ed.2d 535 (2016); Jones v. United States, 527 U.S. 373, 381, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).

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. Georgia ¹³³ and Maynard v. Cartwright ¹³⁴ that there be a meaningful " 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, for example, there are now twenty-two circumstances that can make a defendant death eligible.¹³⁹

133 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

134 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).

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 SeeBrown v. Sanders, 546 U.S. 212, 216 n.2, 126 S.Ct. 884, 163 L.Ed.2d 723 (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).

139 See 11 Del. C. § 4209(e)(1).

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

140 Smith, supra note 48, at 364-65.

141 See Douglass, supra note 6, at 1994-95.

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 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

142 See supra notes 83-84 and accompanying text.

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.

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 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

145 SeeApprendi, 530 U.S. at 469-70.

146 Seeid. 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 Seeid. at 471.

149 Seeid. at 469.

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 maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." ¹⁵²

150 Id. at 490.

151 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

152 Id. at 303-04 (emphasis in original).

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.¹⁵⁵Ring 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 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

153 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556.

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.

158 Id. at 609.

159 Id. (internal citation omitted) (quoting Apprendi, 530 U.S. at 494 n.19).

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

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).

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 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

162 See 11 Del. C. § 4209(d)(1)(a) (1991).

163 See id. § 4209(d)(1)(b).

164 See id. § 4209(g).

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

165 Ring, 536 U.S. at 608 n.6.

166 Brice v. State, 815 A.2d 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).

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

167 815 A.2d 327 (Del. 2003).

168 Id. at 343.

169 See supra note 143 and accompanying text.

'given such consideration as deemed appropriate.'" ¹⁷⁰

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.

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

171 11 Del. C. § 4209(c)(3).

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 factor exists, then the defendant is death eligible and the process moves on to the ultimate sentencing phase.¹⁷⁴

172 Id. § 4209(c)(3)(b)(1); see also Id. § 4209(e)(1).

173 Id. § 4209(d)(2).

174 Id. § 4209(d)(1).

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,

175 Swan v. State, 28 A.3d 362, 390 (Del. 2011); see alsoReyes v. State, 819 A.2d 305, 317 (Del. 2003).

176 11 Del. C. § 4209(c)(3)(a)(2).

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

177 Id. § 4209(d)(1).

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.

178 Id.

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:

179 815 A.2d 314.

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

180 Id. at 322 (internal citations omitted); see alsoSwan, 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).

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 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:

181 Brice, 815 A.2d at 322.

182 Id.

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

183 Ring, 536 U.S. at 612-13 (Scalia, J., concurring).

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 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

184 See Hursts, 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, 2016), http://www.gwlr.org/hurst-v-florida-how-much-does-the-sixth-amendment-reallyprotect/; 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.

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 requires a jury, not a judge, to find each fact necessary to impose a sentence of death." ¹⁸⁹

188 Hurst, 136 S.Ct. at 620 (quoting Fla. Stat. § 775.082(1)) (emphasis in original).

189 Hurst, 136 S.Ct. at 619.

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 fact finding, Ring would have received a life sentence." ¹⁹⁰ The Court then explained:

190 Id. at 621.

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 fact finding. In light of Ring, we hold that Hurst's sentence violates the Sixth Amendment.¹⁹¹

191 Id. at 622 (emphasis added).

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 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."

192 Id. at 623.

193 Id. (internal quotation marks omitted).

194 See, e.g.,Woodward v. Alabama, 134 S.Ct. 405, 407, 187 L.Ed.2d 449 (2013) (Sotomayor, J., dissenting from denial of cert.) (calling for reconsideration of Spaziano ); Harris, 513 U.S. at 524-26 (Stevens, J., dissenting).

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

195 Hurst, 136 S.Ct. at 621-22.

196 Id. at 619 (emphasis added).

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 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

197 See Woodward, 134 S.Ct. at 410-11 (Sotomayor, J., dissenting from denial of cert.).

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 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.

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))).

201 See id. at 616.

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

202 See Hurst, 136 S.Ct. at 625 (Alito, J., dissenting).

203 Id.

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.

204 Johnson v. Alabama, 136 S.Ct. 1837, 194 L.Ed.2d 828 (2016); Wimbley v. Alabama, 136 S.Ct. 2387, 195 L.Ed.2d 760, 2016 WL 410937 (2016); Kirksey v. Alabama, 136 S.Ct. 2409, 195 L.Ed.2d 777, 2016 WL 378578 (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).

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?

(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 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.

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.

206 Hurst, 136 S.Ct. at 619.

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 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.

207 See, e.g., Br. of Charles Hamilton Houston Institute for Race and Justice at 9-12 (hereinafter " C. H. Houston Br." ).

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

208 U.S. Const. amend. VI.

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 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 fact finding 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.

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, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007); see also CAMPBELL, supra note 31, § 9.3 at 354-59.

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 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.

213 Hurst, 136 S.Ct. at 619.

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 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

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 value they set upon the trial by jury . . . ." ); Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 4, 1 L.Ed. 483, 3 Dall. 1 (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))).

it today.²¹⁷

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.

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 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. Washington ²²¹ 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.

218 See, e.g., Ring, 536 U.S. at 610 (Scalia, J. concurring).

219 See supra note 84 and accompanying text.

220 See supra notes 85, 91-92 and accompanying text.

221 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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).

Obscured in the complexity of the Furman line of cases, however, was something fundamental: The overwhelming trend before 1972 was that a 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

224 See supra notes 13-15, 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.

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 States ²²⁷ in 1899:

227 172 U.S. 303, 19 S.Ct. 212, 43 L.Ed. 456 (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

228 Id. at 313.

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

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.

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:

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.

[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

232 2 THE MISCELLANEOUS ESSAYS AND OCCASIONAL WRITINGS OF FRANCIS HOPKINSON, ESQ. 101-02 (1792).

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

233 6 LAFAVE, ET AL., supra note 12, § 26.2(b), at 699.

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 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 sentencing authority to apply its discretionary sense of conscience and mercy to the case at hand.²³⁷

234 Proffitt, 428 U.S. at 251; see also Schriro v. Summerlin, 542 U.S. 348, 361-62, 124 S.Ct. 2519, 159 L.Ed.2d 442 (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.

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, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Dorszynski v. United States, 418 U.S. 424, 431, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974); 3 CHARLES ALAN WRIGHT ET AL., FED. PRAC. & PROC. CRIM. § 552 (4th ed. 2016).

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

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" ).

with the Sixth Amendment if the jury itself believes that is appropriate.

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 context of taking into account that death is different, a point the Supreme Court has made by:

240 Many cases stand for this proposition. E.g., Streetman v. Lynaugh, 484 U.S. 992, 995, 108 S.Ct. 588, 98 L.Ed.2d 634 (1988); Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986); see also Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); Gardner v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Harmelin v. Michigan, 501 U.S. 957, 993-94, 111 S.Ct. 2680, 115 L.Ed.2d 836 (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, 192 L.Ed.2d 761 (2015); Wright v. State, 633 A.2d 329, 336-37 (Del. 1993) (same).

242 See Gilmore v. Taylor, 508 U.S. 333, 342, 113 S.Ct. 2112, 124 L.Ed.2d 306 (1993); Murray v. Giarratano, 492 U.S. 1, 8-9, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (quoting Lockett, 438 U.S. at 604) (internal citations omitted)); Ake v. Oklahoma, 470 U.S. 68, 86, 105 S.Ct. 1087, 84 L.Ed.2d 53 (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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Wiggins v. Smith, 539 U.S. 510, 523-25, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Rompilla v. Beard, 545 U.S. 374, 388-89, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Douglass, supra note 6, at 1986-87.

o 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

244 See Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).

245 See Eberheart v. Georgia, 433 U.S. 917, 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104 (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, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008).

o 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

248 Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).

249 Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

minors; ²⁵⁰ and

250 See Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); see also Thompson v. Oklahoma, 487 U.S. 815, 838, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988).

o 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

251 See Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979).

252 See Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality).

253 See Beck, 447 U.S. at 627; see also Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 77 L.Ed. 158 (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, 90 S.Ct. 1893, 26 L.Ed.2d 446 (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, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977) (holding that mandatory death penalty for a particular crime violates the Eighth Amendment); Presnell v. Georgia, 439 U.S. 14, 15-17, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978) (per curiam) (holding that death sentence cannot be based on an aggravating factor that was previously used to establish guilt); Godfrey v. Georgia, 446 U.S. 420, 428-29, 100 S.Ct. 1759, 64 L.Ed.2d 398 (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, 105 S.Ct. 2633, 86 L.Ed.2d 231 (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, 106 S.Ct. 1683, 90 L.Ed.2d 27 (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, 107 S.Ct. 3114, 97 L.Ed.2d 638 (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, 108 S.Ct. 1860, 100 L.Ed.2d 384 (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, 111 S.Ct. 1723, 114 L.Ed.2d 173 (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, 114 S.Ct. 2187, 129 L.Ed.2d 133 (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.

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

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).

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 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.

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." ).

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

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, 96 S.Ct. 2960, 49 L.Ed.2d 913 (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 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, 4 L.Ed. 579 (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." ).

the cursory rejection of the Sixth Amendment claims in 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 community,²⁵⁹ empirical evidence since then seems to have contradicted that prediction.²⁶⁰ As one scholar has explained:

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." ).

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.

[W]hen it comes to capital cases, there is no historical support for the line that Ring attempts to draw between fact finding 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 fact finding 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

261 Douglass, supra note 6, at 2022.

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 can be

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 Ring ] seems balanced on an impossibly difficult saddle point: 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.'" ).

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

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.

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 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

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.

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 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 to draft a statute in which the factual findings that occur after the eligibility phase are not necessary for death.

267 See, e.g., Bell v. Cone, 543 U.S. 447, 454 n.6, 125 S.Ct. 847, 160 L.Ed.2d 881 (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 2 OHIO ST. J. CRIM. L. 117, 121 (2004).

268 See, e.g., Mitchell v. United States, 526 U.S. 314, 327, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) (the Fifth Amendment right against compelled self-incrimination extends to sentencing); McConnell v. Rhay, 393 U.S. 2, 3-4, 89 S.Ct. 32, 21 L.Ed.2d 2 (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, 110 S.Ct. 1078, 108 L.Ed.2d 255 (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).

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

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), withid. at 577-78 (Thomas, J., dissenting) (arguing that juries must also determine any fact that increases a minimum sentence).

resolved only in 2013 in Alleyne v. United States ²⁷² 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. 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.

272 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (overruling Harris, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524).

273 See id. at 2158.

274 See id. at 2161.

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 blameworthiness 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).

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 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

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.

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 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.

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, 126 S.Ct. 2516, 165 L.Ed.2d 429.

281 Id. at 178-79; see also Sattazahn v. Pennsylvania, 537 U.S. 101, 110, 123 S.Ct. 732, 154 L.Ed.2d 588 (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.

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 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 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.

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.

285 See supra note 240 and accompanying text.

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

286 See, e.g., South Dakota v. Dole, 483 U.S. 203, 207-08, 107 S.Ct. 2793, 97 L.Ed.2d 171 (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, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (establishing " Tinker test" for determining whether a school's censuring speech violates the First Amendment).

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, 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

287 See, e.g., Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (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, 103 S.Ct. 2317, 76 L.Ed.2d 527 (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.

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)

* * *

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 community

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, 106 S.Ct. 198, 88 L.Ed.2d 167 (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.

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.

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." ).

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 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.

294 See Parker v. Dugger, 498 U.S. 308, 314, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991).

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

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 alsoid. 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.

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 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

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 284 (" 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." ).

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 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

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. SeeAndres, 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 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, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), and Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (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. SeeMcDonald v. City of Chicago, 561 U.S. 742, 765, 130 S.Ct. 3020, 177 L.Ed.2d 894 (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, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)); see alsoid. 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 . . . ." ).

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 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 reasonable doubt standard acted as a safeguard in punishment too, not just conviction.³⁰²

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).

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).

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

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 S.Ct. 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 sentence. See, e.g., ARK. CODE ANN. § 5-4-603 (West 2016); UTAH CODE ANN. § 76-3-207 (West 2016).

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 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 Ring, a judge increased Hurst's authorized punishment based on her own fact finding. 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 fact finding, that is necessary for imposition of the death penalty," is impermissible under the Sixth Amendment.¹⁵

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 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 fact finding 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 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, 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 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 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 fact finding, 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. 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 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.

DISSENT

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 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 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. Florida ⁷ and Hildwin v. Florida,⁸ but only " in relevant part " ⁹ and " to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury's fact finding, 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. State ¹⁴ with approval, makes this clear.¹⁵ Because an aggravating 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 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 fact finding 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 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 fact finding. 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

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 fact finding 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 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 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, 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 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.

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, 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 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

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, 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.

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 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 fact finding, 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. 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 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 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

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 reaffirms 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 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 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 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.

VAUGHN, Justice, dissenting:

I am not persuaded that Hurst v. Florida ¹ 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 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 Jersey ² 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 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. Arizona ¹¹ " 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 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 overruling of Hildwin v. Florida ¹⁷ 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 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. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (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 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."

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 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 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

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 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.