'Finding' a Way to Complete the Ring of Capital Jury Sentencing

95 Denv. L. Rev. 671 (2018)

55 Pages Posted: 9 Jul 2018

See all articles by Maria T. Kolar

Maria T. Kolar

University of Oklahoma College of Law

Date Written: May 1, 2018


In the modern death penalty era in America, two findings have emerged as generally required before a murderer can be sentenced to death. First, the decisionmaker must find that the murder was especially egregious, due to specific, statutorily-defined characteristics of the murder or the murderer—typically referred to as “aggravating circumstances.” Second, the decisionmaker must find that any aggravating circumstances in the case “outweigh” any “mitigating circumstances,” i.e., anything that makes the crime or the defendant seem less deserving of death. Remarkably, regarding the second finding (the weighing finding) it remains unclear who “the decisionmaker” must be and how convinced the decisionmaker must be—even though the Supreme Court held back in 2002, in Ring v. Arizona, that the Sixth Amendment mandates that the decisionmaker for the aggravating circumstance finding must be a jury and that the jury must be convinced “beyond a reasonable doubt.”

This Article asserts that Ring’s use of the word “fact” to describe the kind of determination that must be made by a jury has completely undermined the functional and elements-based approach of Ring. This approach, properly understood, mandates that the Sixth Amendment jury requirement applies to any finding (not just “fact”) that is required for a death sentence. This Article traces the Court’s use of the term “finding” in this context—from the beginning of the modern death penalty era in 1976, through Apprendi v. New Jersey in 2000, Ring in 2002, and Hurst v. Florida in 2016—and asserts that the Apprendi Court’s use of the broader term “finding” in this arena is more faithful to the Sixth Amendment and to substantive state law. This Article catalogs how state supreme courts and federal circuit courts overwhelmingly concluded (post-Ring) that the capital weighing finding is not subject to the Sixth Amendment, because it is not a “fact” under Ring—aided by the Court’s Eighth Amendment “death eligibility” doctrine, which misleadingly suggests that defendants become “eligible” for a death sentence based solely on the finding of an aggravating circumstance.

The Court’s broader approach in Hurst does provide some hope in this realm and has led to momentous changes in Delaware, Florida, and Alabama. And all but two states now insist that a jury make all the findings that are required for a death sentence under state law. Nevertheless, while nearly 75% of the current thirty-one death penalty states require a weighing-type finding for a valid death sentence, almost 75% of these states still fail to require that this finding be made beyond a reasonable doubt, as the Sixth Amendment mandates. There is still much work to be done.

Keywords: death penalty, capital punishment, jury, weighing, decision-making, Sixth Amendment, sentencing, aggravating circumstances, finding, criminal law, criminal procedure

Suggested Citation

Kolar, Maria, 'Finding' a Way to Complete the Ring of Capital Jury Sentencing (May 1, 2018). 95 Denv. L. Rev. 671 (2018). Available at SSRN: https://ssrn.com/abstract=3203001

Maria Kolar (Contact Author)

University of Oklahoma College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States

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