U.S. | Execution by nitrogen hypoxia doesn’t seem headed for widespread adoption as bills fall short and nitrogen producers object

The day after Alabama carried out the first-known US execution using nitrogen gas, its attorney general sent a clear message to death penalty states that might want to follow suit: “Alabama has done it, and now so can you.” Indeed, in the weeks immediately following the January execution of Kenneth Smith, it appeared a handful of states were listening, introducing bills that would adopt the method known as nitrogen hypoxia or a similar one. Officials behind each framed the legislation as an alternative method that could help resume executions where they had long been stalled.

USA | When Jurors Do Not Agree, Should a Death Sentence Be Imposed?

In most states, a death sentence may only be imposed by a jury in unanimous agreement. But in two recent cases, defendants now face death sentences despite the objections of jurors.

In Missouri, a judge imposed a death sentence in Ian McCarthy’s case after the jury deadlocked in the penalty phase. In their recent filing challenging the sentence, Mr. McCarthy’s lawyers argue that “unanimous jury agreement is necessary to ensure that death sentences are imposed reliably on the most culpable defendants and reflect the judgment of the community.” 

Two former Supreme Court justices made similar points in earlier cases. Justice Steven Breyer noted in Hurst v. Florida (2016) that “the Eighth Amendment requires that a jury, not a judge, make the decision to sentence a defendant to death.” He drew on arguments by Justice John Paul Stevens in Spaziano v. Florida (1984) that “the danger of an excessive response can only be avoided if the decision to impose the death penalty is made by a jury rather than by a single governmental official…the question whether a sentence of death is excessive in the particular circumstances of any case is one that must be answered by the decisionmaker that is best able to express the conscience of the community on the ultimate question of life or death.”

In Florida, Joshua McClellan became one of the first defendants to receive a death sentence recommendation from a non-unanimous jury instructed under new legislation signed by Governor Ron DeSantis in April, which requires a minimum of just 8 votes in favor of death. Under the new law, Florida joins Alabama as one of just two states that do not require a unanimous vote to impose a death sentence. The U.S. Supreme Court has never ruled directly on whether jury unanimity is required in death sentencing.

In Hurst, the Supreme Court struck down a Florida scheme that required the judge to find the aggravating facts necessary to impose death, holding that the Sixth Amendment “requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Based on Hurst, the Florida Supreme Court eliminated non-unanimous death sentences entirely and overturned the sentences of nearly 150 defendants whom at least one juror had voted to spare. However, some defendants’ appeals under Hurst were still pending when the new law overturned the unanimity requirement earlier this year. The change has created “chaos” in the state appellate courts, with inconsistent rulings on whether the 8-4 standard should apply to those defendants who have not yet been resentenced under Hurst.

The law has also generated harsh criticism from legal advocates. “Florida already has the highest number of death row exonerations in the country,” said Tiffani Lennon, executive director of the ACLU of Florida. “Florida is rapidly widening the net of who will be sent to death row with absolutely no consideration for the flaws that will inevitably lead to the harm of more innocent people.” Studies suggest that wrongful convictions in past years often featured non-unanimous death sentences, with dissenting votes a product of “residual doubt” among the jurors about the defendant’s guilt. A 2020 DPIC analysis found that 22 of 24 Florida exonerations for which data was available (92%) involved non-unanimous jury recommendations.

Source: Death Penalty Information Center, Staff, September 13, 2023





"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."

— Oscar Wilde

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