The Vanishing Voice: Juror Disenfranchisement in Capital Cases and The Erosion of Constitutional Protections

Yacenda Hudson September, 2026

After years of battling to have an uninfringed right to vote and participate on a jury panel, the removal of the unanimity requirement for a death penalty recommendation threatens to disenfranchise minority jurors, thereby implicating the Sixth and Fourteenth Amendments. The death penalty is one of the most controversial issues in our society, and it has evolved over time. Due to a paradigm shift in beliefs, the death penalty’s constitutionality was challenged under the Eighth and Fourteenth Amendments. Pivotal legal decisions, such as Furman v. Georgia and Hurst v. Florida , required states to institute changes to the death penalty. Florida and Alabama were no exception and have continued to evolve their death penalty laws. Alabama evolved from the requirement of a jury to agree on a death sentence to a requirement of a ten-vote majority for a death penalty recommendation. On the other hand, after the heinous acts of Nikolas Cruz in Parkland in 2018, Florida removed the unanimity requirement and implemented the lowest requirement of any state – eight votes – for the death penalty recommendation. The change was in response to the outcry against Cruz being sentenced to life imprisonment, rather than death. However, it also enhanced an underlying systematic flaw of juror disenfranchisement seen in several states, which has reverted the power of the minority juror vote back to the era of Jim Crow. This Article examines the history of the death penalty and the historical struggle of minorities to gain the right to vote on death penalty panels. It explores the removal of the unanimity requirement’s impact on the minority vote, including the present state of minority underrepresentation on death panels, the feelings of death penalty jurors, and minority divergent perspectives on death. Data has reflected that the use of peremptory challenges leaves death panels with very few minorities to participate in a core process of the legal system. Under these circumstances, the removal of unanimity extinguishes meaningful discussion and creates detrimental consequences, increasing the likelihood that a minority vote on the death panel will be ignored or suppressed and, therefore, abridged. The combination of these factors leads to an erosion of constitutional protections under the Sixth and Fourteenth Amendments. This disenfranchisement cannot be allowed to continue, and solutions such as abolishing the death penalty, extending the Batson test with data requirements for death cases to ensure juror diversity, and requiring all states to mirror the federal death penalty’s procedural protection of unanimity should be considered.

I. Introduction

“It was a slap in the face . . . .”¹ This was the statement of a juror who served on a death penalty panel and believed that their vote was inconsequential.² The echo of this belief is inevitable for minorities on death penalty jury panels in Alabama and Florida.³

The death penalty is a critical and controversial issue, as it is the most severe sanction that one can be sentenced to. Its continued controversy and significance led to constitutional challenges were made under the Sixth, Eighth, and Fourteenth Amendments, resulting in revisions to the death penalty framework.⁴ Furman v. Georgia ’s holding that the inconsistent application of the death penalty violated the Eighth and Fourteenth Amendments caused a nationwide moratorium . ⁵

In the wake of Furman , Florida and Alabama, along with other states, modified their death penalty laws to comply with constitutional requirements.⁶ These modifications created a system with two phases: a guilt phase and a sentencing phase.⁷ In the guilt phase, the jury determines whether or not the defendant is guilty of the capital offense.⁸ If found guilty, the sentencing phase proceeds, in which a determination is made on whether the defendant should be sentenced to death or life imprisonment.⁹ To comply with the Sixth Amendment, jurors play a pivotal role in finding aggravating or mitigating factors to make a recommendation of life imprisonment or death.¹⁰ Alabama required a vote of at least ten jurors for recommendation of death, while Florida required a unanimous recommendation.¹¹ However, after the heinous actions of Nikolas Cruz in Parkland in 2018, and the Governor’s outrage at the jurors’ life sentence recommendation, Florida removed the requirement of unanimity.¹² Now, only eight jurors are required to recommend the death penalty.¹³ Thus, Florida has joined Alabama by lowering the juror threshold to recommend the death penalty.

Given the stakes of the makeup of one’s death penalty jury panel, the lower threshold is critical for minority defendants. Despite the Sixth Amendment’s guarantee of an impartial jury,¹⁴ generally, death panels are known to include very few minorities.¹⁵ There has been a vast amount of litigation about the purposeful exclusion of minorities from death panels by the use of peremptory challenges during jury selection, leading to underrepresentation.¹⁶ Given this underrepresentation, it is important to ensure that the perspectives of minority groups are acknowledged. Particularly, the views of Black jurors often differ from White jurors on death penalty jury panels, as White jurors are more prone to favor a death sentence, while Black jurors are more prone to vote for life imprisonment.¹⁷ Florida and Alabama’s reduced voting threshold for a death penalty recommendation may limit the impact of minority jurors’ diverse perspectives. Minority jurors’ votes will likely be the two votes not required in Alabama and the four votes not required in Florida for a final decision to recommend the death penalty. The viewpoint of a single minority juror can now be erased, therefore leading them to the inevitable conclusion that their death penalty vote did not matter. Moreover, the removal of the unanimity requirement for death penalty recommendations raises concerns regarding the erosion of constitutional protections and is reminiscent of periods in American history when voting rights were present, yet restricted. This Article argues that after years of battling to have an uninfringed right to vote and participate on a jury panel, the removal of the unanimity requirement for a death penalty recommendation creates a critical threat of disenfranchisement for minority jurors, thereby implicating possible violations of the Sixth and Fourteenth Amendments.

II. The Evolution of the Death Penalty

A. Tracing the Roots of the Death Penalty

The death penalty dates to approximately the eighteenth century B.C.E., with the code of Hammurabi.¹⁸ Over time, various forms of the death penalty have been adopted, ranging from beheading to hanging to burning at the stake.¹⁹ In the 1800s, as American society’s beliefs developed, a paradigm shift began to take place. An abolition movement grew, arguing that the death penalty was cruel and should be abolished.²⁰ The states began to differ in their usage of the penalty. While the North and the Midwest began to limit the use of the death penalty, the South expanded its use in a blatantly racial manner against Blacks.²¹ The process for implementing the death penalty involved the participation of legislatures, as Congress and state legislatures determined which crimes were punishable by the death penalty.²²

The early 1900s resulted in pivotal changes to the death penalty. By the latter half of the century, support for the death penalty dropped to forty-two percent.²³ Some states abolished the death penalty, while others reformed it.²⁴ There were allegations that the death penalty was disproportionately imposed upon minorities via “legal lynching,” due to a lack of fair trials.²⁵

Critical decisions, such as Furman v. Georgia (1972), impacted the application of the death penalty in all states.²⁶ Three court cases were reviewed in Furman : one for murder and two for rape.²⁷ Each defendant was sentenced to death.²⁸ The punishment of death was left to the discretion of the judge or the jury.²⁹ The primary question presented was whether the imposition and execution of the death penalty constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.³⁰ The question was answered in the positive, and the cases were reversed in part.³¹

Justice Douglas’ concurrence in Furman asserted that the death penalty would be considered “‘unusual’ if it discriminates against [a defendant] by reason of [their] race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”³² Death sentences were disproportionately imposed on minority groups, since there were no established standards to guide the imposition of death sentences. This lack of regulation allowed for considerable discretion.³³

This key ruling led to a nationwide moratorium on the death penalty from 1972 to 1976.³⁴ During this period, over 600 death row inmates had their sentences commuted,³⁵ and states worked to revise their death penalty laws.³⁶ In 1976, the Supreme Court held that the death penalty was constitutional if applied in a rational and fair manner,³⁷ so states began to resume its imposition.³⁸ To comply with this new standard, states instituted bifurcated trials, which required two phases of decisions: guilt and sentencing.³⁹ States also established guidelines for jury decisions about the death penalty.⁴⁰

Despite the Supreme Court’s ruling that the death penalty could be imposed under specific guidelines, several states began to reassess the fundamental validity of the death penalty as a sentencing option. A couple of states did not reintroduce the death penalty and officially abolished it after Furman , while others maintained the pre- Furman abolishment of the death penalty or limited the enforcement to the extent of nearly eliminating it.⁴¹ Florida and Alabama did not take any of these paths towards eliminating the death penalty. In fact, Florida was the first state to revise its death penalty statue after Furman .⁴² Alabama’s legislature passed the Alabama Death Penalty Statute on September 9, 1975.⁴³

B. Florida’s Death Penalty: A Historical Overview

Florida has a complex and contentious history with the death penalty. The death penalty has existed in Florida since it became a state in 1845,⁴⁴ when executions were done by hanging.⁴⁵ In 1923, Florida followed the lead of other states like New York and switched to electrocution.⁴⁶ The jury determined guilt in Florida.⁴⁷ A death sentence was mandatory upon conviction of a capital felony, unless the jury voted for mercy.⁴⁸

Like all other states, Florida was hit with the pivotal debate about the death penalty and was subject to the moratorium required by Furman .⁴⁹ During the moratorium, Florida’s death penalty was suspended, and ninety-six sentences were commuted to life imprisonment, which accounted for almost one sixth of the commutations nationwide.⁵⁰ Florida worked swiftly to revise its statutes, thereby enabling the state to continue with executions.⁵¹ Essentially, the state wanted to ensure that the recommendation would be provided by a jury. The changes resulted in the imposition of a two-phase process.⁵² In phase one, the jury would determine guilt.⁵³ Then, in phase two, the jury would provide an advisory sentence to the judge.⁵⁴ Upon receipt, the judge would weigh aggravating and mitigating circumstances to make findings for a final decision.⁵⁵ This authorized the judge to make an independent judgment about whether to impose death.⁵⁶ Since the ultimate decision was in the hands of the judge, a non-unanimous vote for death was authorized, as the statute only required a recommendation by a majority of the jury.⁵⁷

Allowing the ultimate decision to be made by a judge in death penalty cases was a controversial step for Florida. Judges were overriding the recommendation of juries, which infuriated the panels and the public.⁵⁸ There were arguments that the judge should not be able to veer from the jury’s recommendation.⁵⁹ In Tedder v. State , a 1975 case in which the defendant was charged with murdering his mother-in-law, the Florida Supreme Court reviewed this issue.⁶⁰ At the trial, the jury found Tedder guilty and subsequently recommended a life imprisonment sentence after hearing that he was only twenty years old.⁶¹

Despite this recommendation, the trial judge sentenced Tedder to death, listing three aggravating circumstances as part of his decision.⁶² On appeal, the Florida Supreme Court ruled that a jury’s recommendation of life imprisonment should be given great weight, and that the only time such a recommendation should be overruled is if the facts suggesting a sentence of death are so clear and convincing that no reasonable person could differ.⁶³ The court in Tedder determined that there was no reason for the judge to override the recommendation of life imprisonment.⁶⁴ In the end, the case was remanded to enter a life imprisonment sentence.⁶⁵

Despite the importance of the ruling in Tedder , it did not alleviate the concern with judicial actions in determinations of death without findings of fact by a jury, and the issue was revisited when Hurst v. Florida was decided by the Supreme Court in 2016.⁶⁶ Hurst was convicted of first-degree murder, and the jury recommended death.⁶⁷ However, on appeal, a new penalty phase was granted.⁶⁸ During that phase, the jury yet again recommended death.⁶⁹ In accordance with Florida law, the judge determined that sufficient aggravating circumstances existed to justify imposing the death penalty and sentenced Hurst to death.⁷⁰ The Florida Supreme Court affirmed the ruling.⁷¹ However, the U.S. Supreme Court asserted that the trial judge’s action violated the Sixth Amendment.⁷² Under the Sixth Amendment, a jury is required to find facts necessary to impose a death sentence.⁷³ A jury’s recommendation for death without findings of fact is insufficient.⁷⁴ Any fact that exposes a defendant to a greater punishment is considered an element that must be proven beyond a reasonable doubt, including the elements that determine whether the death penalty may be imposed.⁷⁵

The Hurst decision represents another significant development in the history of Florida’s death penalty. Following Hurst , the imposition of the death penalty in Florida was placed on hold so that the state could implement changes to comply with the ruling.⁷⁶ Florida courts concluded that aggravating circumstances must be unanimously found by the jury,⁷⁷ and that there must be a unanimous verdict for death.⁷⁸ If even one juror disagreed, the defendant would be sentenced to life imprisonment instead. Every vote on the death penalty panel counted. These requirements remained in place from 2017 to 2023.⁷⁹ At that point, a significant change took place, removing the unanimity requirement for a recommendation of death in Florida.⁸⁰ This significant change reduces the impact that minority jurors can have when serving on a death penalty jury panel.

C. Alabama’s Death Penalty: A Historical Overview

Like Florida, Alabama has a long-standing history with the death penalty. As early as 1807, Alabama’s Title 17 provided that defendants “shall suffer death” for certain crimes.⁸¹ For all crimes, including those where death may be imposed, Alabama gave substantial deference to jury decisions by establishing that “[i]n all prosecutions for offences of either a capital or inferior nature, no person shall on conviction be fined in a greater sum than shall be assessed by the verdict of a jury.”⁸² During this time, slaves and Blacks, referred to as “free Negroes[,] were admittedly singled out for special treatment insofar as capital punishment was concerned.”⁸³ Alabama added a new subsection to the criminal code that was titled “Crimes and Misdemeanors by Persons of Color.”⁸⁴ This addition provided for capital punishment for any “second conviction of any Negro or mulatto whatsoever . . . and any attempt to commit a rape on any free white female by any person of color.”⁸⁵ As Alabama continued to make revisions, it intentionally removed the ability to sentence Whites to death for the specific crimes of burglary, robbery, and arson.⁸⁶ However, the possibility of death for these crimes remained for Blacks.⁸⁷ This created concerns regarding the use of the death penalty.⁸⁸

To resolve these concerns, Alabama enacted the 1841 Penal Code. At the time, the death penalty could be imposed for charges of murder in the first degree, aiding any insurrection by slaves, treason, and circulating seditious papers for the purpose of inciting insurrection among slaves.⁸⁹ This code authorized jury discretion in determining the imposition of death.⁹⁰ Following suit, in 1852, the recodified Code of Alabama mandated that death could only be imposed at the discretion of the jury for specific offenses.⁹¹ The mandated jury discretion remained in effect until significant changes were implemented by Alabama’s legislature in 1975.⁹²

In response to Furman v. Georgia , all death sentences imposed by jury discretion were commuted to life imprisonment, and Alabama passed the 1975 Alabama Death Penalty Act.⁹³ Prior Alabama death penalty statutes were repealed.⁹⁴ The 1975 Act maintained the wording that the death penalty shall be fixed if a defendant is found guilty of a capital offense, but to eliminate the constitutional issues, a bifurcated trial was required in death penalty cases.⁹⁵ The jury was also required to take character and propensity into account when making a determination of death.⁹⁶ “If the jury [could not] agree on a sentence of death, the defendant [would] be sentenced to life imprisonment without parole.”⁹⁷ Despite the bifurcation and the jury’s consideration of propensity, this sentencing structure was found to be facially unconstitutional, as its wording still maintained a mandatory death sentence requirement.⁹⁸

Subsequently, in 1981, Alabama repealed the 1975 Act and passed the 1981 Act, which required a sentence proceeding following a conviction for a capital offense.⁹⁹ Upon conviction for a capital offense, a separate hearing was required to determine whether to sentence the defendant to death.¹⁰⁰ The jury would then be required to determine whether aggravating circumstances existed beyond a reasonable doubt and review whether mitigating circumstances were applicable.¹⁰¹ To recommend death, a minimum of only ten jurors would now be required.¹⁰² As of 2016, more than half of those executed in Alabama have been from a non-unanimous recommendation of death.¹⁰³

The capital sentencing structure in Alabama has continued to face constitutional challenges.¹⁰⁴ Specifically, the Court has considered the Sixth and Eight Amendments. In the notable case of Harris v. Alabama (1995), the defendant was convicted of capital murder.¹⁰⁵ Subsequently, the jury recommended life imprisonment with a vote of seven to five, but the judge overruled the recommendation.¹⁰⁶ The judge sentenced the defendant to death, finding that aggravating factors outweighed mitigating circumstances. The Supreme Court determined that there was no Eighth Amendment violation, as the sentencing structure did not have to specify the weight given to a jury recommendation of life imprisonment or death to be constitutional.¹⁰⁷

Thereafter, in light of the pivotal decisions in Hurst and Ex parte Bohannon (2016), the Alabama Supreme Court considered whether the sentencing structure violated the Sixth Amendment.¹⁰⁸ The court clarified that “the finding required by Hurst to be made by the jury, i.e., the existence of the aggravating factor that makes a defendant death-eligible, is indeed made by the jury, not the judge, in Alabama.”¹⁰⁹ The Alabama Supreme Court held that there was no Sixth Amendment violation, because Alabama law required the existence of aggravating circumstances to be determined by a unanimous jury verdict.¹¹⁰ However, that same court did not specifically require a unanimous recommendation for life imprisonment or death.¹¹¹

Thereafter, the Court of Criminal Appeals of Alabama in Keaton v State (2021) considered the constitutionality of the lack of a unanimity requirement for a recommendation of death in the Alabama sentencing structure.¹¹² The defendant argued that the failure to require a unanimous recommendation of death is unconstitutional.¹¹³ The defendant relied on Ramos v. Louisiana , decided a year earlier, in which the Supreme Court ruled that jury unanimity is required in a death penalty case.¹¹⁴ Rejecting the defendant’s argument , the Alabama appellate court pointed out the defendant’s lack of citation to any other Supreme Court cases.¹¹⁵ It went on further to differentiate Ramos by emphasizing that the case focused on the Sixth Amendment’s requirement of a unanimous vote for a conviction, not a sentence.¹¹⁶ The court ultimately determined that the Sixth Amendment was not violated.¹¹⁷ The analysis in these cases did not contemplate the impact on the voices of minority jurors on death panels.

III. Race and Representation on Jury Panels

A. Exclusion and Underrepresentation of Minorities

Minorities were finally granted the right to serve on jury panels when the Civil Rights Act of 1875 outlawed race-based discrimination in jury selection.¹¹⁸ This change was important, since it provided defendants with a jury panel of their peers – a constitutional right.¹¹⁹ Serving on a jury panel allows people to participate in the democratic process,¹²⁰ and the United States has established that citizens should be afforded an equal opportunity to participate in the judicial system by doing so.¹²¹ Juries are representations of their communities. They act as the conscience of the community.¹²² Consequently, race has always been an issue in the selection process.

It is well-documented that minorities are often underrepresented on jury panels.¹²³ Blacks were systematically excluded from jury service for all of the nineteenth and most of the twentieth century.¹²⁴ For individuals from minority groups, it remains a challenge to represent their communities effectively by serving on a jury. Historically, jurors were selected through purportedly random name drawings.¹²⁵ However, minority names would be purposefully placed on yellow paper, so that they would not be selected.¹²⁶ In 1903, the Supreme Court even upheld the conviction of a Black defendant by an all-White jury.¹²⁷

This discrimination was challenged in courts throughout the twentieth century. In Smith v. Texas (1940), the Supreme Court ruled that excluding Black jurors from grand jury panels violated the defendant’s constitutional right to a fair trial.¹²⁸ In Castaneda v. Partida (1977), the Court held that systematic exclusion could establish a prima facie case of discrimination in jury selection.¹²⁹ Despite these cases, issues with representation continue to exist, since these rulings have been insufficient to end the exclusion of minorities from jury panels.

In fact, peremptory strikes have often been utilized as a means to exclude minorities from sitting on jury panels.¹³⁰ Peremptory strikes permit litigants to assist in the selection of an impartial jury and may be used to remove potential jurors for any reason.¹³¹ The use of a peremptory strike allows for the exclusion of jurors who would otherwise satisfy the requirement to serve on a jury panel.¹³² Florida provides for ten peremptory strikes for a crime punishable by death.¹³³ Alabama provides a list of thirty-six names for death penalty cases with each party utilizing peremptory strikes until twelve jurors remain.¹³⁴ The exclusion of Black jurors by the misuse of peremptory strikes has been common and flagrant.¹³⁵

In 1986, the Supreme Court held that discrimination against race in jury selection is a violation of the Fourteenth Amendment’s guarantee of equal protection.¹³⁶ Accordingly, many challenges have been made regarding the use of peremptory strikes. In Batson v. Kentucky (1986), the Supreme Court found the need to address the crippling burden placed on defendants to show a violation of the Equal Protection Clause and the prosecutorial use of peremptory strikes becoming immune from constitutional scrutiny.¹³⁷ In Batson , the prosecutor used peremptory strikes to remove all potential Black jurors.¹³⁸ The defendant objected, asserting a violation of the Sixth and Fourteenth Amendments, but the court overruled the objection without requiring the prosecutor to provide an explanation.¹³⁹ The Supreme Court held that purposeful racial discrimination in jury selection violates the Fourteenth Amendment.¹⁴⁰ The defendant may challenge the use of a peremptory strike if it was used to exclude a potential juror on the basis of their race.¹⁴¹ Procedurally, this would require the court to assess the reason for the peremptory strike to determine whether it was based on race.¹⁴² The defendant is required to make a prima facie case that they are a member of a racial group, and the prosecutor used a peremptory strike to remove a potential juror from the defendant’s racial group.¹⁴³ Next, the defendant must show that there is an inference that the prosecutor used the peremptory to exclude a potential juror due to their race.¹⁴⁴ If the defendant has made a prima facie case, the burden shifts to the prosecutor to provide a race-neutral reason.¹⁴⁵ The court will then make a determination on whether the strike was purposeful racial discrimination.¹⁴⁶ Despite this procedure set forth, Justice Marshall’s concurring opinion asserted that without abandoning peremptory challenges altogether, racial discrimination would not be eliminated from jury selection.¹⁴⁷

In practice, as with the right to vote, several ways to work around Batson have arisen.¹⁴⁸ The Court in Purkett v. Elem held that the race-neutral reason provided by the prosecutor does not need to be persuasive or plausible.¹⁴⁹ Accordingly, minority jurors have been struck for being unfit under pretenses such as their education, employment, and skills.¹⁵⁰ Prosecutors have also used attire, such as sweatpants or baggy jeans, to remove minority jurors.¹⁵¹ Minority jurors have even been removed for being “too outspoken.”¹⁵² This reprehensible practice was seen in Tennyson v. State .¹⁵³ In Tennyson , the prosecutor excluded all potential Black jurors for being “unskilled labor,” despite the fact that several of them had college degrees.¹⁵⁴ As in Tennyson , there is often insufficient evidence to support the rationale for excluding minority jurors. Nevertheless, the exclusion persists. Minorities continue to encounter barriers to participation, resulting in unequal representation on jury panels.¹⁵⁵

B. The Heightened Burden for Minorities on Death Penalty Panels

The exclusion of minorities has naturally bled into death penalty panels. These panels are essential, as they play a pivotal role in determining whether an individual’s life will be taken away. Generally, the selection process for jurors serving on death penalty cases is more rigorous, involving detailed screening to ascertain willingness to recommend capital punishment if deemed appropriate.¹⁵⁶ Individuals that are more comfortable with the death penalty have a higher probability of being selected to sit on a death penalty panel.¹⁵⁷ This rigorous selection process significantly reduces the pool of eligible jurors. Consequently, historical data indicates that minority representation on death penalty panels is severely limited.¹⁵⁸ Specifically, Blacks and women are markedly underrepresented among potential jurors in death penalty cases.¹⁵⁹

Like with non-death jury panels, minorities are often purposefully excluded from death panels based upon their race, especially via peremptory strikes.¹⁶⁰ A survey was conducted in Jacksonville, Florida, in which twelve death penalty panels were reviewed and analyzed, and it supports the argument that minorities were excluded from the panels.¹⁶¹ The survey data provides an overall indication that minorities were excluded at a higher rate than White men.¹⁶² Specifically, the study found that 33.8% of Black jurors were excluded from death penalty panels versus only 15.5% of White jurors.¹⁶³ 24.1% of Black women were excluded, as opposed to only 18.8% of White women, and 22.4% of Black men were struck, as opposed to only 14.8% of White men.¹⁶⁴ Upon further examination of the data, it was revealed that prosecutors disproportionately utilized peremptory strikes against minorities, removing 16.4% of Black jurors while only removing 12.6% of White jurors.¹⁶⁵

Court cases have also corroborated that minorities are more likely to be excluded from death penalty panels. In Flowers v. Mississippi , the defendant was tried on six separate occasions.¹⁶⁶ Despite Batson , at the first and second trials, all five prospective Black jurors were excluded via peremptories.¹⁶⁷ At the third trial, the state used fifteen peremptories, all of which were against potential Black jurors.¹⁶⁸ Likewise, at the fourth trial, all eleven peremptories used by the state were against potential Black jurors.¹⁶⁹ In total, forty-one out of forty-two minority jurors had been struck from the juries in the Flowers trials.¹⁷⁰ Foster v. Chatman followed a similar pattern, as all five potential Black jurors were excluded from the death penalty panel via peremptories.¹⁷¹ One of the potential Black jurors in Foster , Marilyn Garrett, was known to be a model citizen, held down two jobs, attended church, and agreed that she was comfortable imposing death, yet she was still excluded.¹⁷² The prosecutor used the excuse that Garrett, who was thirty-four, was too close in age to the eighteen year old defendant, while simultaneously allowing a twenty-one year old White man to remain on the panel.¹⁷³ Pretextual excuses like this are commonly used to justify the use of peremptories. In Mississippi, Melodie Harris, a woman of color, was excluded by a prosecutor from a death penalty panel under the pretext that she did not have ties to the community.¹⁷⁴ This rationale was blatantly false, as she had worked for a company in the area for six years,¹⁷⁵ evidently establishing connections within the community. These exclusionary practices damage the appearance of justice and cause trust in the system to falter.¹⁷⁶ Death penalty panels are often nonrepresentative of the community, due to the exceptionally dwindling number of minorities who serve on death panels. Ultimately, this raises questions about the emotional experiences of jurors serving on death penalty panels and, more importantly, the perspectives of the underrepresented minority jurors involved in such cases.

IV. Race, Voice, and Disempowerment of Jurors on Death Panels

Jury service is not easy for anyone. However, this hardship is exacerbated for those that sit on death penalty panels. Jurors have said that sitting on a death penalty panel takes an emotional and psychological toll,¹⁷⁷ and many have reported suffering from anxiety and emotional setbacks.¹⁷⁸ Marilyn Garrett, one of the aforementioned rejected potential jurors in Foster , stated that the prosecutors “really were nasty to [her]” during the jury selection process, which resulted in her leaving in tears.¹⁷⁹ She felt humiliated and mistreated.¹⁸⁰ After that experience, she understandably did not want to participate in any future jury selection processes.¹⁸¹ Similarly, Melodie Harris, who had been excluded from a death penalty panel in Mississippi, felt that she was treated unfairly and lost confidence in the judicial system.¹⁸²

Even jurors who were ultimately selected and seated on death penalty panels which required unanimous decisions were not immune to these sentiments. Jurors who cast a minority vote for the death penalty have expressed discomfort, as they believed that a sentence of life imprisonment was inadequate.¹⁸³ Conversely, jurors who participated in panels that ultimately agreed on the death penalty have expressed feelings of guilt for conforming to the majority opinion.¹⁸⁴ Some jurors have stated that they walk around with a heavy burden and have even needed to seek counseling.¹⁸⁵

The emotional roller coaster continues for those who participated on death panels where a judge overrode the panel’s decision. Jurors in such situations have felt devastated, and that their votes were meaningless.¹⁸⁶ One such case was Padgett v. State , where the defendant was charged and convicted in Alabama with his wife’s rape and murder.¹⁸⁷ During the sentencing phase, in a vote of nine to three, the death penalty jury panel recommended life imprisonment, but the court overrode the decision and sentenced the defendant to death instead.¹⁸⁸ A juror that served in the Padgett case reported feeling that her time was wasted, and that the actions taken by the judge were unfair.¹⁸⁹ This juror felt devastated when the judge overrode the recommendation of life imprisonment.¹⁹⁰

In a different death penalty case, the defendant was charged with murder but did not commit the actual shooting.¹⁹¹ Francis Miles was selected to be a juror on the jury panel.¹⁹² After the defendant’s conviction, the panel voted for life imprisonment, with a seven to five vote.¹⁹³ The judge overrode the decision, sentencing the defendant to death.¹⁹⁴ After this, Miles lost her confidence in the justice system and believed that the process was a waste of time.¹⁹⁵

Overall, many jurors have reported feeling inferior – as if their decisions were made with emotion or incompetence.¹⁹⁶ They have felt as if “the judge [threw their] hard work out the window,” and that “the legitimacy of their vote” was taken away.¹⁹⁷ “Juries are the voice of the community,” and their “faithful work . . . should not be cast aside cavalierly.”¹⁹⁸ In death penalty cases, the role of the jury is essential, and allowing a judge to override the decision of the jury only serves to undermine such an important role.

V. Florida’s Modern Case of Racialized Civic Disempowerment

Undoubtedly, the requirement for a unanimous vote in the federal system has ensured that every vote counts on a death penalty panel. If even one juror disagrees, the sentence will be life imprisonment.¹⁹⁹ The federal system ensures compliance with the Sixth Amendment right to an impartial jury and thus also lessens the chance of jurors feeling inferior or disenfranchised. However, this is not true for Florida and Alabama, where unanimity is not required for a death sentence. For minority groups that have spent decades fighting for the right to be able to sit on a jury and have their voices heard, the changes in Florida and Alabama’s laws strike a critical blow to their representation.

Given the impact that the removal of the unanimity requirement has had on minority jurors, what was the impetus for such a change? In Florida, the unanimity requirement seemed to be set in stone after Hurst .²⁰⁰ However, in 2018, the mass school shooting in Parkland, Florida led to a drastic change. Children woke up on an ordinary Wednesday morning and left for school, believing that they would be back home by the end of the school day. Yet, on February 14, 2018, Nikolas Cruz entered Marjory Stoneman Douglas High School and opened fire on students and teachers.²⁰¹ In total, Cruz shot thirty-four people, killing fourteen students and three teachers.²⁰² He was captured the same day, and prosecutors charged him with seventeen counts of murder and seventeen counts of attempted murder.²⁰³

Because of his heinous actions, there were many families who wanted Cruz to be sentenced to the death penalty.²⁰⁴ While he did plead guilty to the charges, the sentence still needed to be decided.²⁰⁵ This meant that jurors were selected to decide whether to sentence Cruz to the death penalty after hearing presentations of aggravating and mitigating factors.²⁰⁶ After hearing about Cruz’s childhood trauma and mental health issues, the jury recommended a life sentence,²⁰⁷ with only three out of the twelve jurors voting against a death sentence.²⁰⁸ Because Florida law still required a unanimous decision to recommend the death penalty, the lack of unanimity meant that Cruz received a life sentence.²⁰⁹

This verdict caused outrage and disappointment, and was condemned by many.²¹⁰ Governor DeSantis was “very disappointed” with the verdict and claimed that Cruz should have been sentenced to death.²¹¹ The parents of the victims were also hurt, with one mentioning that “[i]t’s a very bad precedent for the whole nation.”²¹² These outcries led to a critical reevaluation of the death penalty. DeSantis wanted immediate changes, so that any similar future incidents would result in the death penalty, saying, “[o]nce a defendant in a capital case is found guilty by a unanimous jury, one juror should not be able to veto a capital sentence.”²¹³ There is no indication that his desire for change included any thought of how such a change would impact the members of the jury.

Shortly thereafter, Florida’s death penalty reform bill was introduced in the Florida legislature.²¹⁴ The bill would make it so that only eight votes would be required for a death sentence, rather than all twelve.²¹⁵ It was filed on January 30, 2023 and went through the Senate, where it passed with twenty-nine yeas and ten nays.²¹⁶ Subsequently, it was passed in the House of Representatives with eighty yeas and thirty nays.²¹⁷ Governor DeSantis executed the bill on April 20, 2023 in a private ceremony attended by the victims of the Parkland shooting, with an effective date of July 1, 2023.²¹⁸

The substance of the bill has provided a major change to the process of determining whether to recommend the death penalty.²¹⁹ Specifically, once the jury has unanimously identified an aggravating factor during the sentencing phase, only eight jurors are needed for a death sentence.²²⁰ With this amendment, Florida has joined three other states that do not require unanimity.²²¹ Alabama has a ten vote requirement,²²² while Missouri and Indiana allow the judge to decide when the jury is divided.²²³ Today, this means that Florida has the lowest jury standard of any state. Even if up to four jurors disagree, death can still be imposed, leading to juror disenfranchisement.

VI. The Ultimate Disenfranchisement

The term disenfranchisement is commonly used when referring to voting rights. However, disenfranchisement also extends to the right to serve on jury panels. Just as minorities have faced barriers with voting, such as Jim Crow laws, they have also faced barriers when trying to serve on juries, such as exclusion from jury rolls and the use of the “key-man” system.²²⁴ Legal action eventually solidified the right for minorities to be included on jury panels under the Fourteenth Amendment, ensuring their perspective could be heard.²²⁵

When it comes to the criminal justice system, minority groups tend to have a significantly different perspective than majority groups, usually due to prior treatment and experiences. Individuals from minority groups often express reservations and a lack of confidence in the criminal justice system,²²⁶ while individuals from majority groups generally view the system as trustworthy and fair,²²⁷ since they are more likely to have had positive interactions with the justice system.²²⁸ This variation means that it is pivotal to have a diversity of viewpoints on death penalty panels. “The divergent experiences and perspectives of [B]lack and [W]hite Americans have implications for their service as jurors.”²²⁹ Moreover, a juror’s general views play a role in their decision about the death penalty.²³⁰ Statistics show that White individuals support the death penalty more than other groups,²³¹ with one survey showing that approximately 59% of White respondents were in favor of the death penalty.²³² On the other hand, only 47% of Hispanic individuals surveyed were in favor of the death penalty,²³³ while the number was even lower among Black Americans, at 36%.²³⁴

In 2001, a different study also found that race is statistically significant when jurors are casting a vote on the death penalty.²³⁵ Data was obtained from 187 jurors who previously served on death penalty panels.²³⁶ 17.8% of the jurors interviewed were Black.²³⁷ Nearly two thirds of White jurors voted for death compared to only about one third of Black jurors.²³⁸ On the other hand, 55% of Black jurors voted for life, while 25% of White jurors voted for life.²³⁹ During the study, a statistical regression analysis was conducted, utilizing data obtained from juror interviews.²⁴⁰ Based upon the data obtained, the models reflected that race is highly significant when Black jurors were compared to all White jurors.²⁴¹ In one of the models,²⁴² a Black juror was substituted in the place of a White juror, and the probability the substituted juror would vote for life increased by 24.3%, while the probability of a vote for death decreased by 27.6%.²⁴³

The same year, a different paper conducted a distinct legal and empirical analysis on jury verdicts from death penalty panels.²⁴⁴ Close attention was paid to the race of the defendant, along with the composition of the jury.²⁴⁵ When the defendant was Black, the victim was non-Black, and the jury consisted of eight or more non-Black jurors, the death sentence rate was 45% compared to 21% in the same scenario, but the jury consisted of five or more Black jurors.²⁴⁶ This equates to a reduction of twenty-four points.²⁴⁷ Ironically, even when the victim and defendant were both non-Black, there was a disparity with the vote for death.²⁴⁸ In those instances, the juror composition of eight or more non-Black jurors voted for death 17% of the time, in comparison to 13% when the panel was made up of five or more Black jurors.²⁴⁹ This equated to a difference of four points.²⁵⁰ Moreover, when the defendant was non-Black, the victim was Black, and the jury was made up of eight or more non-Blacks, the jury voted for death 22% of the time, in comparison to 14% when the jury consisted of five or more Black jurors.²⁵¹ The trend in voting resulted in a disparity of eight points.²⁵² The data gathered provides a clear indication of how diversity in viewpoints on the death penalty closely maps onto race.

When there is a diversity of viewpoints on a death penalty panel, all perspectives should be considered during deliberation. Each juror should get to express how they feel, what the evidence has reflected, and what they believe the decision should be. In fact, there is evidence that racially diverse juries probe evidence more deeply and decide cases more fairly.²⁵³ When there is a requirement of unanimity, the panel must have a thorough discussion to agree upon a decision. This ensures every vote, including the votes of minority jurors, counts. With a lack of unanimity, minority juror viewpoints are overpowered and ultimately silenced.²⁵⁴ Unfortunately, now that Florida and Alabama no longer require a unanimous decision for the death penalty, there is a very real possibility that the votes of minority jurors will be disenfranchised.

Death penalty panels have a tendency to be overwhelmingly White.²⁵⁵ As discussed previously, peremptory strikes are often used to remove minority jurors from juries, so that the panels end up being majority-White. In Tarver v. Hopper , for example, the panel consisted of only one non-White jury member.²⁵⁶ Applying the current Florida death penalty law, if that one minority juror had disagreed with at least eight other jury members, their vote would not have mattered, since the majority of the jurors would have been able to ignore their perspective and their vote. Their vote would not have been sincerely considered, since a single ‘nay’ vote would not have mattered for the final recommendation. That would have been, in essence, juror disenfranchisement.

Additionally, this type of disenfranchisement is incredibly disheartening and upsetting for minority jurors themselves. As discussed, when judges have overridden death penalty decisions, jurors were extremely upset. They felt as though it was “a slap in the face.”²⁵⁷ It is reasonable to believe that a minority juror on a death penalty panel in Florida or Alabama would feel the same, believing that their view does not matter if the majority disagrees with them. The eight-juror requirement silences the voices of up to four jurors in Florida, while the ten-juror requirement silences the voice of up to two jurors in Alabama.

VII. Erosion of Constitutional Protections

This type of silencing and disenfranchisement is a clear constitutional violation, even though it has yet to be evaluated by the Supreme Court. In particular, the Sixth and Fourteenth Amendments are undermined by this type of juror disenfranchisement in Florida and Alabama. The Sixth Amendment, along with Florida’s constitution, provides the right to a fair and impartial jury.²⁵⁸ As the Supreme Court emphasized in Ramos , the right to trial by an impartial jury is a meaningful one.²⁵⁹ A jury is a body composed of the defendant’s peers, made up of members of their community, including neighbors and associates.²⁶⁰ One requirement of an impartial jury is unanimity.²⁶¹ Generally, the government has a strong interest in having the jury be the conscience of the community on the ultimate question of life or death.²⁶² The phrase ‘conscience of the community’ was also used by the Court in Witherspoon v. Illinois , in which the Court determined that “a jury that must choose between life imprisonment and capital punishment can do little more – and must do nothing less – than express the conscience of the community on the ultimate question of life or death.”²⁶³ If one is entitled to a jury that is comprised of the community, who then represents the conscience of the community on the question of life or death, the right to an impartial trial by unanimity does not end at the sentencing phase in a death penalty case. Each member of a panel represents the community in some form. By not requiring unanimity, the conscience of the community represented by a community member that maintains an opposite opinion to most of the jury may be disregarded. Thus, only a portion of the community’s conscience is represented in the final decision.

One may speculate that if the drafters of the Constitution intended for a unanimous vote for recommendation of death, it would be specified in the Constitution. One may also argue that there is no constitutional issue, as each member of the panel is able to present their view during the guilt phase. Yet, Witherspoon directly references a determination of life or death.²⁶⁴ Further, the Constitution did not explicitly require unanimity for a finding of guilt. Notwithstanding, it has been determined that unanimity is a requirement for a decision of guilt.²⁶⁵ As discussed by Florida Supreme Court Justice Labarga in State v. Poole (2020), the Florida Constitution’s right to trial by jury requires an unanimous recommendation of death.²⁶⁶ “[I]t defies reason to require unanimous juries for the conviction of a capital offense but to then reduce the jury’s collective obligation when determining whether the defendant’s life should be taken as punishment for that offense.”²⁶⁷ By eliminating the unanimity requirement, minority jurors’ votes will not have an impact. Thus, the jury may be considered partial and biased, which would violate the Sixth Amendment.

The possible Sixth Amendment violations do not end there. An “impartial jury” is a term with a specific meaning, which includes all the essential features of a jury trial.²⁶⁸ The unanimity requirement is one such essential feature.²⁶⁹ Unanimity is required for a guilty verdict in federal and state criminal cases.²⁷⁰ However, while unanimity is required to impose the death penalty in a federal case,²⁷¹ and many states have followed suit, the divergence of Florida and Alabama makes it clear that this protection is not respected in every state.

Alabama also does not require unanimity for the death penalty.²⁷² In Ex parte Bohannon , the Alabama Supreme Court ruled that, because the Alabama capital sentencing structure requires a unanimous finding of aggravating circumstances, Alabama’s procedure did not violate the Sixth Amendment.²⁷³ As of now, the U.S. Supreme Court has not reached a determination regarding the constitutionality of Alabama’s procedure. However, this lack of guidance does not necessarily mean that the practice is constitutional.

In Ring v. Arizona , the Supreme Court held that, under the Sixth Amendment, the jury must be the one to find aggravating circumstances.²⁷⁴ The state courts in Poole, Hurst , and Rauf v. State (a 2016 Delaware case) all interpreted this as a requirement for the jury to unanimously find the existence of the aggravating circumstance.²⁷⁵ Consequently, it follows logically that the unanimity requirement should also extend to the jury’s recommendation of the death penalty, since that recommendation is based on both aggravating and mitigating circumstances. Death penalty statutes explicitly call for juries to play an essential role in recommending capital punishment. Therefore, every juror’s vote should matter and be utilized in determining whether to apply the death penalty.

At one time, Florida believed that unanimity was required, but it has since backtracked on that assessment. In fact, the Florida Supreme Court held in Hurst “that all the critical findings necessary before the trial court may consider imposing a sentence of death must be found unanimously by the jury.”²⁷⁶ The court further mandated that the aggravating factor must be found unanimously along with determining that the aggravating factors are sufficient for imposition of death.²⁷⁷ Therefore, the determination that the aggravating factors are sufficient for imposition of death may be interpreted to be the recommendation of death. This analysis outlined in Hurst was clearly legally justified when the decision was made.²⁷⁸ In the words of the court in Hurst , “just as elements of a crime must be found unanimously by a Florida jury, all these findings necessary for the jury to essentially convict a defendant of capital murder – thus allowing imposition of the death penalty – are also elements that must be found unanimously by the jury.”²⁷⁹ The Sixth Amendment requires certain procedures for jury trials, and death penalty trials should not be excluded from those requirements. In 2020, the Supreme Court held that the phrase “trial by an impartial jury” in the Sixth Amendment requires a unanimous jury verdict to convict a defendant.²⁸⁰ Allowing the death penalty to be held to a lower standard than this clearly goes against purpose behind this decision and undermines the Sixth Amendment.

The Fourteenth Amendment is also implicated, since it incorporates the Sixth Amendment against the states²⁸¹ through the Due Process and Equal Protection Clauses.²⁸² Under the Fourteenth Amendment, minorities have a constitutional right to equal protection under the law. The core guarantee of equal protection is that people will not be discriminated on the account of race.²⁸³ Just as “every citizen should have an equal opportunity to participate in the electoral process,” every citizen on a death penalty panel should have an equally significant vote.²⁸⁴ The removal of the unanimity requirement in Florida and Alabama will likely have a disproportionate impact on minority groups, enabling and incentivizing equal protection violations for both defendants and minority jurors. This may be a breeding ground for discrimination.²⁸⁵ The voice of jurors of color may be silenced. Therefore, these laws would likely constitute or help facilitate a violation of the Fourteenth Amendment.

VIII. Restoring the Voice of the Minority on Death Penalty Panels

Disenfranchising minority jurors in death penalty cases will continue to have an impact on both defendants and jurors. Immediate action is needed to dismantle the barriers that currently exist for minority representation on jury panels. As a juror, it is vital to be able to consider a wide range of perspectives, which is currently not always the case. There are many potential solutions that would help remedy the issue of juror disenfranchisement, such as reevaluating Batson challenges in death penalty cases, mirroring the federal death penalty procedures, or even abolishing the death penalty itself.

One potential method of reform would be to expand Batson v. Kentucky ’s application in death cases.²⁸⁶ As discussed above, minorities are often excluded from death penalty panels because of the widespread use of peremptory strikes.²⁸⁷ The Batson test only bars explicit racial discrimination, not implicit discrimination.²⁸⁸ Therefore, minority jurors are routinely excluded for reasons that are implicit, rather than explicit.²⁸⁹ The exploitation of this loophole has been so widespread that there have even been reports of lawyers being coached with cheat sheets on how to work around the Batson test.²⁹⁰ In California, for instance, prosecutors were provided lists of acceptable reasons to strike minorities that would not violate Batson .²⁹¹ For example, baggy pants are often racially coded as Black. An attorney looking to strike Black jurors could use this association to strike Black jurors for wearing baggy pants, which is not an explicitly racial reason and is plausible enough to pass the Batson test.

Expanding the Batson test to cover implicit discrimination would make death penalty jury panels more representative of their communities and reduce the risk of silencing minority voices. California and Washington have passed laws which can serve as examples of what an expansion of Batson at the federal level could look like. Both states have passed laws which prohibit the use of peremptory challenges based on factors like appearance, dress, demeanor, or employment.²⁹²

For any expansion of the Batson test in death cases to be effective, a neutral board must be able to review the use of the expanded test and hold all parties accountable. To do so, they must have access to data about the racial and gender composition of jury panels, as well as the racial statistics for all jury panels and reasons for uses of peremptory strikes. Currently, only nineteen states engage in some form of data tracking; there is no uniform mandate requiring all states to maintain such records.²⁹³ Failure to keep data would make it difficult for a review board to conduct effective oversight.

Another potential solution would be to require all states with the death penalty, including Florida and Alabama, to follow the death penalty procedures of the federal system. Currently, the United States requires that “the jury by unanimous vote . . . shall recommend whether the defendant should be sentenced to death.”²⁹⁴ The Sixth Amendment also requires a unanimous jury verdict to convict a defendant.²⁹⁵ Florida and Alabama should not require any less for the death penalty. This would ensure that each juror’s perspective is considered, which would prevent juror disenfranchisement.

Finally, the most effective solution would undoubtedly be to eliminate the death penalty altogether. To date, twenty-three states and the District of Columbia have abolished the death penalty,²⁹⁶ with Michigan being the first, in 1847,²⁹⁷ and Washington being the most recent, in 2023.²⁹⁸ Four other states have placed an executive hold on executions by orders of their governors.²⁹⁹ In California, one of the states with an executive hold, the governor stated that California’s “death penalty system has been, by all measures, a failure.”³⁰⁰ This is also true for Florida’s death penalty system. The lack of racial representation and the prevailing issue of juror disenfranchisement have created a deeply unequal system that does more harm than good. Abolishment of the death penalty would eliminate all these concerns. However, while this is the most straightforward solution, it would also be the most difficult to implement, due to deep-rooted opposition for eliminating the death penalty.³⁰¹

While each of these proposed solutions have their own benefits and drawbacks, it is clear that some type of change must be made. At the very least, Florida and Alabama should implement an unanimity requirement for juries to recommend the death penalty. The citizen jury is the bedrock of the Constitution, and their votes should never be minimized.

IX. Conclusion

“Other than voting,” the Supreme Court explained in 2019, “serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process.”³⁰² Every vote on a jury panel is a reflection of the community, representing the moral compass of society.³⁰³ Minorities face an upward battle to serve on a death penalty jury panel, as peremptory strikes are commonly used to exclude them and lead to underrepresentation.³⁰⁴ By removing the requirement for a unanimous juror vote in death penalty cases, Florida and Alabama have dealt a critical blow to representation for minority jurors. Being on a death penalty panel is never an easy task, but it is even worse for jurors who feel that their vote had no impact on the outcome. Many minority jurors have reported feeling inferior, humiliated, and disrespected after serving on a jury panel.³⁰⁵ The elimination of the unanimity requirement, along with underrepresentation, has created an environment in which the views of minority jurors are severely devalued. Ultimately, this silences and disenfranchises minority jurors.

The right to participate on a jury panel is essential, and every single juror’s vote should matter, especially in a decision as important as the death penalty. There should be thoughtful and meaningful discussion of every viewpoint before making a final recommendation of life or death. Therefore, it is vital to ensure that minority jurors in death penalty cases are not disenfranchised, and their Sixth and Fourteenth Amendment rights are protected. Solutions such as reevaluating Batson challenges for death penalty cases, which would allow for a more diverse death panel and thereby reduce the probability of the extinguishment of a minority recommendation; mirroring the federal death penalty procedures to require a unanimous decision for a recommendation of death; or abolishment of the death penalty itself should be considered. Minorities must no longer be made to feel as if their voices were “dismissed” or that their participation on a death penalty panel was a waste of time. Preventing racist disenfranchisement in all its forms is critical.