Last week, the Delaware Supreme Court vacated the death sentence of Derrick Powell, finding that the United States Supreme Court’s decision in Hurst v. Florida applies retroactively. In Powell v. State, Delaware’s highest court found that Hurst’s requirement – that the findings authorizing a death sentence must be made by a jury unanimously and beyond a reasonable doubt – applies even to cases, such as Mr. Powell’s, where the sentence was imposed before the U.S. Supreme Court decided Hurst earlier this year. As a result, the court effectively invalidated the death sentences of everyone on Delaware’s death row, extending application of Hurst to everyone sentenced under Delaware’s now-unconstitutional death penalty sentencing scheme.
Similar developments are underway in Florida. After the U.S. Supreme Court’s ruling in Hurst in January 2016, the Florida legislature rewrote that state’s death penalty sentencing laws in an effort to remedy its constitutional infirmities – requiring that juries find beyond a reasonable doubt the existence of all “aggravating factors” on which a death sentence is premised, and prohibiting imposition of a death sentence in cases where the jury has returned a verdict of life without parole. In October, however, the Florida Supreme Court held that Hurst requires even more. Specifically, the court held, Hurst prohibits imposition of a death sentence in any case where the jury has not returned a unanimous verdict in favor of death. The status of Florida’s death penalty, therefore, is currently very much in flux as well.
Alabama’s death penalty statute was modeled after Florida’s and, along with Delaware’s, was the only other law permitting judicial override, or unilateral imposition of a death sentence by a trial judge even after the jury has returned a verdict in favor of life. Unlike the courts in Florida and Delaware, however, this fall the Alabama Supreme Court affirmed the death sentence of Mr. Jerry Bohannon and found Alabama’s death penalty statute constitutional despite Hurst. Alabama is now the only state in the nation that allows judicial override.