Some of the biggest changes to the death penalty in 2016 followed the U.S. Supreme Court’s decision in Hurst v. Florida. In Hurst, the Court found Florida’s death penalty sentencing statute unconstitutional because it gave judges the discretion to find aggravating factors apart from those found by the jury during the sentencing phase. Although the decision in Hurst only directly controlled Florida law, there was widespread expectation that this decision would also impact two other states with similar schemes: Delaware and Alabama. Shortly after Hurst was announced, the Delaware Supreme Court asked counsel with pending death penalty cases to submit briefing about the impact of Hurst on Delaware law. After hearing arguments, the court found that Delaware’s statute was unconstitutional because, as in Florida, it gave judges excessive discretion during the sentencing stage of capital trials and did not require jurors to reach a decision unanimously. On August 15th, the Delaware Attorney General announced that he would not appeal the court’s decision.
In Alabama, the courts have taken a different approach. Unlike Delaware, they have not invited briefing from counsel and have thus far rejected all Hurst claims brought in individual cases. Alabama judges, who are elected and often campaign for office based on their death sentence records, are permitted to override life sentences in favor of death. In June, the Alabama Court of Criminal Appeals ruled in State v. Billups that Hurst does not prevent a judge from finding additional aggravating factors after the jury has found at least one aggravating factor sufficient to qualify the defendant for the death penalty. The U.S. Supreme Court has since remanded four other Alabama cases to the Alabama Court of Criminal Appeals for reconsideration in light of Hurst.