EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, November 14, 2018

How Alabama Allows for Non-Unanimous Jury Verdicts & How It Can Lead to the Innocent Being Executed

On Tuesday, Louisiana voters overwhelmingly voted to abolish the practice of allowing non-unanimous jury verdicts in felony cases (e.g., a defendant could be convicted of manslaughter based on a 10-2 jury verdict [10 guilty, 2 not guilty]). In the wake of this vote, Oregon's House majority leader Jennifer Williamson plans 

to introduce two bills in 2019 in an effort to overturn Oregon's non-unanimous jury law...

The first would seek a legislative fix to the law that allows juries in most felony cases — aside from murder — to convict defendants with a 10-2 vote, she said.

The second would refer the issue to voters, who would then decide whether to overturn an amendment in the state constitution enacted more than eight decades ago.

In the last few days, the reporting has focused on Oregon being the last state that allows non-unanimous jury verdicts in felony cases. In one sense, this is true. In another sense, this is false, and it could mean that innocent people have been and will continue to be executed. 

The other state that allows for non-unanimous jury verdicts is Alabama. Now, Alabama doesn't allow for non-unanimous jury verdicts at the guilt-innocence phase of trial. But, Alabama does allow for a 11-1 or 10-2 vote at the sentencing phase of a capital case. In other words, if only 11 or even 10 jurors want to impose the death penalty, the judge can decide that the defendant should be executed

Alabama law was actually worse a couple of years ago. It used to be that judges could override a jury's decision to impose life imprisonment and instead impose the death penalty. But the ability of judges to override was eliminated by the passage of SB 16. That bill eliminated the possibility of judicial overrides but still allowed for death sentences based on 11-1 or 10-2 jury votes

That makes Alabama different from every other death penalty state because every other state requires a unanimous jury vote. Indeed, there's a good argument that Alabama's practice is unconstitutional based upon the Supreme Court's recent opinion in Hurst v. Florida.* And there's good reason that Alabama's practice should be unconstitutional: "all five of the exonerations from Alabama's Death Row over the past several decades had either been the result of an override or the result of a non-unanimous recommendation."

You might have heard about one of these exonerees on election day. AL.Com did a story about Anthony Ray Hinton voting after 28 years on death row. In 1986, he was given the death penalty after a 10-2 jury vote; in 2014, the Supreme Court later vacated his conviction, with the DA dropping the charges in 2017.  

SB 16 was introduced by State Senator Dick Brewbaker. There's a lot of momentum behind ending non-unanimous jury verdicts in Oregon in the wake of the Louisiana vote. Maybe we can get some momentum behind ending Alabama's death penalty law as well.


*The Supreme Court recently refused to grant cert in a 11-1 Alabama case that would have resolved the issue.


[Update: (1) Senattor Brewbaker did not seek re-election; but (2) "Rep Chris England (D Tuscaloosa ) who carried the judicial override bill in the House last year" has said he is "interested in introducing a bill in the upcoming session."]


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