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The Death Penalty: Should the Judge or the Jury decide who dies?

09 November 2017 - By Nick Butcher

Delaware in the United States is possibly not often on the travel plans for many people visiting North America.

However it has an interesting legal history as it was the first state to ratify the US constitution and is often referred to as the ‘First State’.

Delaware which borders Maryland, New Jersey and Pennsylvania is also one of a handful of states that gives the Judge the final decision making authority in capital trials.

So the obvious question is whether more juries or judges deliver defendants in such trials the death penalty.

As you’d expect, a study by Cornell Law School was done by analysing a database of all capital sentencing phase hearing trials in the state of Delaware from 1977-2007. It was during those three decades that Delaware shifted responsibility for death penalty sentencing from Jury to Judge.

What the legal studies research paper found was that death sentences significantly increased once the responsibility was shifted to Judges.

The article fully examines the impacts of having the judge or the jury as the decision maker in capital trials. In Woodward v. Alabama, a dissent from a denial of certiorari, (a writ that the Supreme Court of the US issues to review a lower court’s judgement) Supreme Court Justice Sotomayor, joined by Justice Breyer, questioned the constitutionally and the impact of employing judges as opposed to juries as the final arbiter of death sentences in the United States.

Delaware’s complicated death penalty history

The controversial death penalty has existed in Delaware since the early colonial period. In the 20th century there were several attempts to abolish capital punishment which finally succeeded in 1958. Delaware then became the second state, after Missouri to put an end to the death penalty. However it was short lived because in 1961, following the murder of an elderly white couple by an African American man in southern Delaware, the Delaware legislature reinstated capital punishment.

Things progressed even further in 1977. That year the Delaware legislature enacted a new law modelled after the Georgia capital sentencing statute upheld by the Supreme Court in 1976 in Gregg v Georgia. This scheme provided for a bifurcated trial.

How it worked was that in the first phase, the defendant’s guilt or innocence of first degree murder was decided. If the defendant was convicted, the jury would then determine the appropriate punishment in a separate penalty case. The new law identified specific aggravating circumstances for the fact finder to consider in deciding on the sentence. In the penalty phase, the system provided for the presentation of aggravating and mitigating evidence.

This meant the jury could only sentence the defendant to death if it unanimously concluded, beyond a reasonable doubt that at least one statutory aggravating circumstance existed.

It also meant the jury’s sentence determination was binding, but if the jury could not reach a unanimous decision, a life sentence would be entered for the defendant. The policy also required the Delaware Supreme Court to conduct an automatic review of each capital case.

Delaware juries made sentencing decisions in capital cases from 1977 to 1991 under this statute.

Records show that only 11 defendants were sentenced to death during this ‘jury decides’ period.

Further change comes to Delaware

The winds of change began to blow in 1991 when a capital jury did not sentence four men to death for the murders of two armoured car guards during a robbery, as they could not come to a unanimous decision. Instead they were given life in prison without parole.

It was an interracial case with African American defendants and white victims so it attracted high publicity.

And prosecutors were outraged.

“We live in a terribly jaded society if we’ve come to accept that type of conduct without returning the death penalty,” they said.

This paved the way for the Judge of such capital trials to have the last word. Within days of the armoured car verdict, the Delaware General Assembly passed a new bill amending the death penalty statute by replacing the jury with the judge as the final decision maker in the penalty phase of capital trials.

Of the 146 cases during the survey period that were death penalty eligible and reached the sentencing phase of a capital trial, 54 resulted in a death sentence. As mentioned earlier, only 11 death sentences were made during the jury era out of 57 cases before the court. Decisions during the judge era were evenly split in that 31 cases received death sentences and 27 received life sentences.

Why the big difference between judge and jury death sentence frequency

It appears that Delaware’s move from jury to judge sentencing in capital cases was motivated by the perception that juries were less likely than judges to give death sentences.

Prosecutors in Colorado for example argued that the implementation of a three-judge system would help increase the number of death sentences handed down in the state by “taking sentencing in death penalty cases away from jurors…because they were too soft to vote for death sentences in even the most heinous cases.”

In contrast, Arizona and Florida maintained that judges were better suited to the serious assessment of whether a defendant should receive the death penalty, that juries were more apt to be influenced by emotion, and that a judicially dominated system would actually limit the number of death sentences.

In relation to the Delaware results of Judges v Juries, it should be remembered that the cases were decided over 30 years, so they were different eras and crime rates obviously differed too.

Essentially judges could sentence more people to death because greater numbers of people were being murdered and it was simply a response to increased public concern about crime. The results of the study showed that during the jury era 2% of the homicides that occurred led to a death sentence, whereas during the judge era 13% of homicides resulted in a death sentence at trial.

Another possible explanation for the greater amount of death sentences by judges is that prosecutors were more selective with the cases they brought before judges so judges saw more aggravated cases than what occurred during the jury era, leading to harsher penalties.

Last updated on the 16th September 2019