Death by Lethal Instruction

I. Introduction

In Texas, capital murder trials consist of two distinct phases: guilt/innocence and sentencing. Once guilt has been established, the defendant will be sentenced either to death or life in prison without the possibility of parole. To sentence a defendant to death, the jurors must decide two (sometimes three) special issues.^[1] If they unanimously decide that there is a high probability that the defendant will be a future danger to society and the evidence does not “mitigate[] against the imposition of the death penalty,” then the defendant is sentenced to death.^[2] If ten out of the twelve jurors decide to answer “no” to one of the special issues, then the defendant is sentenced to life in prison without the possibility of parole.^[3] Because of the number of votes required for each sentence, this is called the 12–10 rule.

In the event of a hung jury, the defendant is automatically sentenced to life without the possibility of parole.^[4] The gag rule (or gag statute) prevents the judge, state, defendant, and attorneys from instructing the jury about this default punishment.^[5] Consequently, jurors are prevented from understanding that it takes only one dissenting juror to prevent the defendant’s execution. In addition, because jurors fear the unknown consequence of a hung jury, they sometimes vote for death simply to avoid the prospect of a defendant returning to the community.^[6]

The combination of these two rules (12–10 rule & gag rule) perverts the role of the jury and violates the constitutional rights of the defendant. Caselaw stemming from the Supreme Court’s decision in Simmons v. South Carolina^[7] suggests that by asking jurors to decide on a defendant’s future dangerousness without informing them that there is no possibility that the defendant will return to the (nonprison) community violates a defendant’s Fourteenth Amendment Due Process rights. In addition, by adding an element of confusion and uncertainty, this combination of rules violates the defendant’s Eighth Amendment right by creating an “unacceptable risk that the death penalty will be imposed in an arbitrary manner.”^[8]

This Comment will analyze jury instructions in capital sentencing trials from a sampling of death penalty states to determine if the rule is necessary, or even useful, in Texas. It seeks to determine how the rule was created by analyzing the legislative histories of the relevant statutes. Then, it will analyze attempts reformers have made—and are making—to change the rule. This Comment will use empirical studies on juror behavior to show the dangers implicit in a rule that creates juror confusion. Precisely, it will show that the 12–10 rule and the gag statute help perpetuate a racially discriminatory application of the death penalty in Texas. A reform of this rule should please proponents of the death penalty by ensuring that a death sentence truly is a reflection of the voice of the community and not an arbitrary result of confusing jury instructions.

II. The 12–10 Rule and the Gag Rule: History and Current Application

All states that employ capital punishment do so in an environment created after the moratorium on the death penalty was lifted in the 1970s. States have faced many limitations and burdens in establishing their modern regimes and protecting them against claims of unconstitutionality. While there are strong arguments that the 12–10 rule and the gag rule are unconstitutional, both rules have been upheld under Supreme Court precedent. This Part traces this history.

A. Historical Background

A moratorium was imposed on the death penalty in the United States following the Supreme Court’s ruling in Furman v. Georgia.^[9] Texas was one of the first states that attempted to reinstate the death penalty in a manner that avoided the “capriciousness” and “unfettered discretion” of the invalidated statutes.^[10] During its 63rd Legislature, Texas passed House Bill 200, which instituted its new death penalty scheme.^[11] Included in the scheme was a new provision for capital sentencing procedure, Article 37.071.^[12]

From its very inception, Article 37.071 included the 12–10 rule, which read: “The court shall charge the jury that: (1) it may not answer any issue ‘yes’ unless it agrees unanimously; and (2) it may not answer any issue ‘no’ unless 10 or more jurors agree.”^[13] The rule remains substantially the same today.^[14] However, it was not until 1981 that the gag rule was created and added to Article 37.071.^[15] In that year, House Bill 1164 added a provision that detailed what would happen if the jury was unable to answer any of the special issues^[16] and simultaneously added the gag rule, which stated: “The court, the attorney for the state, or the attorney for the defendant may not inform a juror or a prospective juror of the effect of failure of the jury to agree on an issue submitted under this article.”^[17] Today, the gag rule is the same, except that the defendant has been added to the list of entities prohibited from explaining the consequence of a jury’s inability to answer.^[18]

At the time Article 37.071 was enacted, there were three distinct sentencing possibilities: (1) the jury would answer the special issues unanimously in favor of imposing a death sentence; (2) at least ten of the jurors would answer the special issues in favor of imposing a life sentence; or (3) the jury would be unable to agree.^[19] If the jury was unable to agree, then the judge was required to declare a mistrial.^[20] Because three distinct consequences accounted for all possible voting permutations, the 12–10 instructions in the first enactment of Article 37.071 could not be characterized as misleading. In other words, ten was a bona fide threshold that led to a life sentence. Anything less than ten led to a mistrial.

The 12–10 instruction became misleading when House Bill 1164 was passed. At that point, the number of distinct sentencing outcomes decreased to two: (1) a death sentence would be imposed if the jury unanimously answered the special issues in favor of death; or (2) a life sentence would be imposed (whether because at least ten jurors answered the special issues in favor of a life sentence or because they were unable to answer).^[21] Supporters of the bill said that this would “cut down on the possibility of a . . . mistrial” and “save the time and money involved in retrying a defendant,” clearing up “crowded court dockets.”^[22]

While supporters attempted to streamline the capital sentencing process, saving time and money, they did not want the jury to know about this consolidation. In regards to the new gag rule, supporters thought “[t]he prohibition against informing jurors of the effects of disagreement on issues will ensure that jurors base their decisions regarding punishment on the full facts of the case.”^[23] They asserted that the gag rule would “keep jurors from being easygoing or overzealous.”^[24] Opponents believed that the new rule created “greater possibilities for abuse” because “neither the judge nor the jury [had] to take responsibility for signing the verdict of death.”^[25]

B. Simmons and a Meaningful Opportunity to Present a Complete Defense

The Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.”^[26] While the exact source of this right is unknown, it has been attributed to the Fourteenth and Sixth Amendments.^[27] Essentially, the right entitles a criminal defendant to rebut or explain evidence used by the prosecution to make its case.^[28] The application of this right to the American death penalty system was explored in the landmark case, Simmons v. South Carolina.^[29] In Simmons, the petitioner had been convicted of capital murder for killing an elderly woman.^[30] The two sentencing options available to the jury were death and life in prison.^[31] Because Simmons had previously been convicted of violent crimes, he was ineligible for parole.^[32] The prosecution had partly relied on an argument that Simmons’s “future dangerousness was a factor for the jury to consider when fixing the appropriate punishment.”^[33] Simmons tried to rebut this argument by arguing that “his dangerousness was limited to elderly women” and that “once he was isolated in a prison setting,” that danger would be eliminated.^[34] Critically important to the jury was whether Simmons would ever be eligible for parole.^[35] Defense counsel wanted the judge to “clarify this point by defining the term ‘life imprisonment.’”^[36] The judge refused.^[37]

Justice Blackmun, writing for a four-Justice plurality, found that, “[b]ecause truthful information of parole ineligibility allows the defendant to ‘deny or explain’ the showing of future dangerousness, due process plainly requires that he be allowed to bring it to the jury’s attention by way of argument by defense counsel or an instruction from the court.”^[38] Justice Blackmun then characterized future dangerousness and parole eligibility as inextricably linked.^[39] However, because Justice Blackmun’s opinion was not a majority, it is a narrow reading of Justice O’Connor’s concurrence that controls.^[40] Therefore, the rule from Simmons is that “[w]here the State puts the defendant’s future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without the possibility of parole, due process entitles the defendant to inform the capital sentencing jury—by either argument or instruction—that he is parole ineligible.”^[41]

The focus on future dangerousness is particularly relevant to Texas’s capital sentencing procedure because one of the special issues the jury must answer is specifically about future dangerousness.^[42] If at least one juror decides that the defendant does not present a future danger to society, then the defendant will be sentenced to life in prison without the possibility of parole.^[43] However, the jury is instructed that ten jurors must agree that the defendant does not present a future danger to answer “no” to this special issue and impose a sentence of life without the possibility of parole.^[44] Additionally, the gag rule prevents the prosecution, defense counsel, and defendant from alerting the jury to the effect of a single holdout juror.^[45] Because the only alternative sentence to death is life without the possibility of parole and because future dangerousness is squarely in issue, the Texas sentencing procedure appears to conflict with the holding in Simmons. This presents a “Simmons problem.”^[46] With specific reference to the fact that the defendant will never be released back into society, Robert Clary explains the dilemma:

[D]oes the defendant have a constitutional right to explain that fact to the jury for the purpose of rebutting the State’s claim that he or she poses a risk of future dangerousness? If the answer to that question is yes, then how can the Gag Statute and the instructions mandated by the 12–10 Rule be constitutional? If the answer to that inquiry is no, then how can that conclusion be reconciled with the Supreme Court’s long-standing acknowledgement that the Due Process Clause of the Fourteenth Amendment guarantees every criminal defendant—and particularly every capital defendant—the right to present a complete defense to the State’s case?^[47]

In other words, if the state must prove the defendant’s future dangerousness, but the defense cannot explain the context within which the defendant will live out his life (in prison), then the defendant loses his constitutional right to present a complete defense to the state’s case.

C. Eighth Amendment Concerns and Challenges

The Eighth Amendment of the United States Constitution reads, in full: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”^[48] When applied to capital sentencing procedure, the Eighth Amendment mandates that “a sentence of death not be imposed arbitrarily.”^[49] The petitioner in Jones v. United States^[50] explained how, in Gregg v. Georgia, the Supreme Court applied the Eighth Amendment to capital sentencing: “The Eighth Amendment ‘mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited . . . to minimize the risk of wholly arbitrary and capricious action.’”^[51] The argument is that, in Gregg, the Court indicated that compliance with the Eighth Amendment is at least somewhat related to the gravity of the punishment.^[52] Where a jury is deciding whether the state should dole out a consequence as grave as a death sentence, the instructions given to the jury must be accurate enough that the jurors have no doubt about the consequences of their votes. Thus, the 12–10 rule and the gag rule violate the Eighth Amendment by (1) creating a situation where there is confusion over what happens if the jury cannot agree; and (2) preventing jurors from obtaining accurate, relevant information to guide their sentencing discretion.

This argument has not been well-received in Texas or more broadly.^[53] The most notable case in which this argument was rejected is Jones v. United States.^[54] In Jones, petitioner Louis Jones Jr. kidnapped a woman from an Air Force base in Texas at gunpoint, sexually assaulted her, killed her with a tire iron, and left her body under a bridge.^[55] Jones was charged with an offense punishable by death or by life imprisonment.^[56] Jones was found guilty by a jury in the Northern District of Texas.^[57] Subsequently, pursuant to capital sentencing procedure provided in the Federal Death Penalty Act of 1994, the jury unanimously sentenced Jones to death.^[58] However, before the jury sentenced him, there was a disagreement over the jury instructions.^[59] Worried that the instructions were impermissibly confusing, Jones proposed new instructions that, “although inartfully drawn, unquestionably sought to convey this core information: If the jurors did not agree on death, then the only sentencing option, for jury or judge, would be life without possibility of release.”^[60] Two of those instructions were rejected by the trial court.^[61]

Among other complaints, Jones argued that the court’s “failure affirmatively to inform a capital sentencing jury about the consequences of nonunanimity in their sentencing recommendation renders a death sentence arbitrary and capricious in violation of the Eighth Amendment.”^[62] Additionally, Jones argued that “[b]ecause there was at least a reasonable likelihood that petitioner’s death sentence was imposed on the basis of inaccurate information, that sentence violates the Eighth Amendment.”^[63] The Court was unpersuaded by this argument, holding that “the Eighth Amendment does not require that the jurors be instructed as to the consequences of their failure to agree.”^[64] The Court also noted that the jury was not affirmatively misled in its role.^[65] Justifying this position, the Court wrote that “the proposed instruction has no bearing on the jury’s role in the sentencing process. Rather, it speaks to what happens in the event the jury is unable to fulfill its role—when deliberations break down and the jury is unable to produce a unanimous sentence recommendation.”^[66]

For now, it seems the argument that Texas’s gag rule violates the Eighth Amendment is a nonstarter in both the Fifth Circuit and the Texas Court of Criminal Appeals.^[67] First, this Section will analyze outcomes in the Court of Criminal Appeals, then the Fifth Circuit.

1. Jones Says It All for Texas Court of Criminal Appeals.

In Hamilton v. State, Hamilton cited Jones, arguing that Texas’s 12–‍10 rule affirmatively misled the jury in the sentencing process.^[68] The Court of Criminal Appeals overruled Hamilton’s point of error, also citing Jones, but for the proposition that an instruction regarding a failure to agree unanimously has no bearing on the jury’s role.^[69] Although certainly legally justifiable, the argument that the jury’s role in the capital sentencing process is to either get twelve or ten people to agree on a punishment seems absurd when, in actuality, the consequences stem from whether there is unanimity in the vote for death or not. Even if we accept the argument that the Court of Criminal Appeals and the Supreme Court are making (that the jury is not misled regarding its role, per se), the jury is nonetheless undoubtedly being misled as to the consequences of its deliberations.

In another case, Masterson v. State, the Court of Criminal Appeals gave short shrift to Masterson’s Eighth Amendment claim.^[70] Recognizing that Masterson relied on Justice Ginsburg’s dissent in Jones, the court asserted that “the dissent is just that—a dissent.”^[71] In overruling Masterson’s points of error, the court explained that “[r]elying upon the majority opinion in Jones, we have recognized that the Supreme Court has found that the Eighth Amendment does not require that jurors be informed of the effect of a failure to reach unanimous agreement on the punishment issues.”^[72] In a similarly abrupt fashion, the court disposed of Resendiz’s Eighth Amendment claim in Resendiz v. State, noting Resendiz’s failure to cite any supporting caselaw and citing Jones for the proposition that the Eighth Amendment does not require an instruction on the jury’s failure to agree.^[73] The court came to the same conclusion in Holberg v. State with respect to Holberg’s claim that the gag rule violates the Eighth Amendment’s ban on cruel and unusual punishment.^[74] The Court of Criminal Appeals seems unwilling to entertain this argument after Jones.^[75]

2. Fifth Circuit Consistently Leans on Jones.

Similar to the Texas Court of Criminal Appeals, Fifth Circuit cases refuse to entertain this type of Eighth Amendment challenge. For example, in Young v. Davis, a federal habeas proceeding stemming from a capital conviction in Texas state court, the Fifth Circuit reiterated that “the Supreme Court disavowed the notion that ‘the Eighth Amendment requires a jury be instructed as to the consequences of a breakdown in the deliberative process.’”^[76] In Blue v. Thaler, the Fifth Circuit denied Blue a certificate of appealability with respect to his claim that the 12–10 rule is unconstitutional because “Jones insulates the [12–10] Rule from constitutional attack.”^[77] In Jackson v. Dretke, the Fifth Circuit again denied a certificate of appealability in a federal habeas case with respect to an Eighth Amendment claim relating to the gag rule.^[78] The court cited Jones for its rejection of the argument that “a death sentence is arbitrary within the meaning of the Eighth Amendment if the jury is not given any bit of information that might possibly influence an individual juror’s voting behavior.”^[79] In Sprouse v. Stephens, the Fifth Circuit denied a certificate of appealability for a claim that the gag statute violates the Eighth Amendment because “[c]lear Supreme Court and Fifth Circuit precedent forecloses granting a COA on this issue.”^[80] Finally, in Druery v. Thaler, Druery raised a slightly novel Eighth Amendment claim.^[81] While acknowledging that Jones “appears to be dispositive,” Druery distinguished the effect of the 12–10 rule from the holding in Jones.^[82] Druery argued that the 12–10 rule does not merely fail to inform the jurors of the effect of a deadlock, but instead impermissibly lies to the jury regarding their “constitutional and statutory responsibilities and their individual abilities to resolve the punishment issue.”^[83] In addition, Druery argued that the rule “creates an intolerable risk of confusing the jury.”^[84] Nonetheless, the court ruled against Druery, concluding that Druery failed to “show that the jury instructions misstated [the jury’s] role under local law.”^[85]

This selection of cases is certainly not exhaustive.^[86] The Fifth Circuit has made it abundantly clear that it will not rule that the 12–10 rule or the gag statute violates the Eighth Amendment. To expect anything different would be nonsensical, though, because they are bound by the Supreme Court precedent set forth in Jones.

III. Effect on Jury Verdicts in Texas Death Penalty Cases

Justice Stevens once wrote in a denial of certiorari that a Texas rule prohibiting a defendant “from presenting truthful information to the jury about when he would be eligible for parole . . . unquestionably tips the scales in favor of a death sentence that a fully informed jury might not impose.”^[87] The implications of Justice Stevens’s statement seem at once obvious and shocking. By presenting to the jury inaccurate, incomplete, or misleading information, the justice system is unduly influencing their sentencing decision. The jury, which must decide whether the defendant lives or dies, is being abstractly pushed towards the more lethal choice.

Justice Stevens makes his point more clear by highlighting public opinion polling data that show how parole information affects how people think about capital sentencing.^[88] The data provided showed how residents of various states responded when asked if they supported the death penalty (1) in the abstract; (2) when the alternative is a life sentence with 25 years of parole ineligibility; (3) when the alternative is a life sentence with 40 years of parole ineligibility; and (4) when the alternative is a life sentence without the possibility of parole.^[89] The data Justice Stevens included are summarized in the table below:

The data showed that “support for the death penalty dropped in each State when life imprisonment was presented as an alternative, when the defendant would be parole ineligible for 25 years.”^[90] Further, “the death penalty becomes even less attractive as the length of parole ineligibility increases.”^[91] From these data, one concept begins to emerge: when jurors are more certain that significant, long-term imprisonment is the alternative to a death sentence, they are less likely to support the death penalty. Therefore, if jurors in Texas capital cases were informed that the defendant they are sentencing would never be released from prison—even if the jurors fail to agree—they would most likely choose the death penalty less often.

A. Juror Testimonials

Building on that concept, it seems safe to assume that at least some jurors in Texas capital cases would be less likely to vote for a death sentence if they were instructed that a life sentence without the possibility of parole would be imposed in the event of a hung jury.^[92] In fact, jurors who actually voted for death sentences have asserted that they would never have done so if they knew that their sole vote could guarantee a sentence of life without the possibility of parole.^[93]

For instance, Sven Berger, a juror in the capital murder trial of Paul Storey, “says he wouldn’t have made” the decision to vote in favor of death “if the law had been clearly explained in that Tarrant County courtroom.”^[94] Berger did not think that Storey would be a future danger to society, but “seriously doubted [he] could persuade one, let alone nine other jurors, to vote to incarcerate,” so he switched his vote.^[95]

Jurors also spoke out after they helped impose a death sentence against Christopher Young.^[96] During Young’s habeas appeals, four jurors signed affidavits declaring that they (1) would have found certain evidence sufficiently mitigating had it been presented at trial; and that (2) they believed at least ten of them needed to agree in order to express that they thought the evidence was sufficiently mitigating.^[97] Each affidavit varied slightly in its content. Most compelling was the handwritten affidavit of Monique Pathaphone, in which she said, “I did not realize that if only one person believed there were sufficient mitigating circumstances to warrant sentencing him to life instead of death he would be sentenced to life.”^[98] In addition, she wrote:

Had I realized that I would have stood firm in my decision that there were sufficient mitigating circumstances. I felt that there were, but because I believed nine others had to agree with me for Chris Young to be sentenced to life instead of death, I agreed with the others.^[99]

Similarly, juror Robert Gonzalez wrote: “I initially considered a life sentence an appropriate punishment, but I thought that ten or more jurors had to agree in order for Mr. Young to receive a life sentence.”^[100] These affidavits are a good indication that the 12–10 rule and the gag rule mislead jurors, leading them to impose death sentences based on a false understanding of their role.^[101]

Unfortunately, Young is not the only case in which jurors were confused in this way. Jurors from yet another capital trial explained that they were misled by the jury instructions.^[102] One juror, Kathryn Starling, declared that she changed her vote because she thought there would be a mistrial if she disagreed with the others.^[103] It is not clear what Starling thought the result of a mistrial would be. Additionally, attorney Katherine C. Black signed an affidavit declaring that she spoke with another juror, Rebecca Hayes, who “believed 10 jurors had to agree in order for a life sentence to be imposed.”^[104] According to Black, Hayes “further stated that she was unaware that if she had held out, Mr. Adams would have received a life sentence.”^[105] Again, there is no question that jurors are being misled as to their role under the 12–10 rule and the gag rule. There is no need for speculation because there is proof. Jurors are not merely unaware of the consequences of their actions, but rather, in some cases, they are sentencing defendants to die based on their inaccurate understanding of their role.

B. Empirical Evidence

Much of what is known about how the 12–10 rule and the gag rule affect a jury’s decision-making process has been discovered when jurors speak out through the press or through legal documents or testimony.^[106] From that limited universe of insight, one thing is clear: jurors are confused about how the process works and the value of their individual views.^[107] By considering a wider universe of information, however, it may be possible to understand what effect this confusion has on jury outcomes. The Capital Jury Project (CJP) is a comprehensive, nationwide research initiative that seeks to collect data from interviews with actual capital jurors to understand the dynamics present in capital juries.^[108] The CJP has been widely studied and many authors have published their analyses.^[109] The CJP comprised interviews with 1,115 jurors from 340 capital trials in fourteen states.^[110] Each interview took about four hours and collected information on around 750 variables.^[111] The CJP had clear advantages over mock-juror interviews, the previously dominant method of gaining insight into capital jurors’ mindsets, but proponents note that it had limitations as well.^[112]

Data from the CJP showed that jurors misunderstand the fundamental nature of their role in the sentencing phase and the applicability of the death penalty.^[113] For instance, 14% of respondents thought that the death penalty was “the only acceptable punishment” for murder.^[114] This number rose when any amount of detail regarding the murder was added to the question, reaching a maximum of 70% of jurors thinking that the death penalty was the only appropriate punishment for “[m]urder by someone previously convicted of murder.”^[115] Many jurors failed to adequately understand what to do with aggravating and mitigating factors, the centerpiece of sentencing phase deliberations.^[116] Perhaps most striking was that a startling amount of those interviewed believed that the “law required [them] to impose a death sentence if the evidence proved that” the defendant’s conduct was “heinous, vile, or depraved” (41%), or that the defendant would be “dangerous in the future” (32%).^[117] Note that the Supreme Court has held that a mandatory death penalty is unconstitutional.^[118] These data make it abundantly clear that jurors are largely unable to understand the sentencing phase of a death penalty trial. Given that jurors are already confused, consider how they are affected by the injection of a seemingly contradictory jury instruction regarding voting thresholds (the 12–10 rule) and by the prohibition on clearing up that seeming contradiction (the gag rule).^[119]

1. Juror Confusion Makes a Death Sentence More Likely.

While a juror being confused about their role in a proceeding that could lead to someone’s execution is troubling in general, empirical data about the sentencing outcomes from confused juries paint a much darker picture.^[120] In a mock-juror study conducted by researchers from the University of Illinois at Chicago and Northwestern University, mock jurors who were given clearer instructions were “less likely to lean toward the death penalty” than jurors given less clear instructions.^[121] The researchers revised the pattern jury instructions, addressing a slew of linguistic problems presented.^[122] Then, they tested the revised instructions against pattern jury instructions, finding that participants correctly interpreted the revised instructions significantly better.^[123] The participants then completed a trial simulation and were asked “toward which verdict (for or against death) they were leaning.”^[124] The researchers found that the revised instructions led the mock jurors to choose the death penalty at a rate of 51%, a steep drop from the 66% of mock jurors who chose the death penalty after being given the pattern jury instructions.^[125] Finally, the researchers found that individual comprehension was correlated with a lower likelihood to choose the death penalty.^[126] From these data, it becomes painfully obvious why clarity in jury instructions is critically important. If a person is executed because jurors misunderstand their instructions and their role, rather than because the jury has comprehensively assessed aggravating and mitigating factors in accordance with the law, then the death penalty is being administered in an arbitrary manner. With respect to Texas, a good first step to increasing the clarity of instructions would be to eliminate the 12–‍10 rule and the gag rule. One would think that even the staunchest proponents of the death penalty would want to ensure that the punishment reflects the “conscience of the community” and not the incoherence of the instructions.

2. Juror Confusion Exacerbates Racial Disparity in Death Sentences.

Additionally, when jurors are confused about their instructions, they are more likely to sentence black defendants to death.^[127] In a mock-juror study conducted by researchers in California, almost 400 jury-eligible participants watched a video containing a brief summary of the guilt phase of a capital murder trial then participated in a simulation of the sentencing phase.^[128] During the sentencing phase simulation, the participants were read standard pattern jury instructions used in death penalty trials in California.^[129] The participants were then told to indicate whether they would sentence the defendant to death or life without the possibility of parole.^[130] Finally, the researchers administered an “instructional comprehension test” to determine how well the participants understood the jury instructions.^[131]

The results are striking. First, the participants “encountered significant difficulties comprehending the judicial instructions intended to guide their capital sentencing process.”^[132] While the study did not reveal any overall effect on verdict choice, there was a “significant relationship” between comprehension and sentences given to black defendants.^[133] That stands in stark contrast to white defendants, for whom there was no relationship between the comprehension of the mock juror and the sentence.^[134] To put a finer point on it, the data show that “low-comprehension participants were significantly more likely to sentence the Black defendant to death than were participants whose comprehension was high.”^[135] When comprehension is low, jurors in capital cases are not excused from their obligation to render a verdict and ultimately rely on “‘commonsense justice’ . . . [p]reexisting stereotypes, schemas, and even prejudices about crime causation, criminal responsibility, race, and class.”^[136] In America, decisions made based on those factors will reliably harm black defendants.

Extrapolating from this study, it is a safe assumption that the confusion created by the 12–10 rule and the prohibition on clearing up that confusion (the gag rule) has a racially disparate effect on defendants. Texas already sends a disproportionate number of people of color to death row.^[137] The mock-juror study discussed in this Section supports the proposition that the 12–10 rule and the gag rule, both of which demonstrably increase juror confusion,^[138] are likely contributors to this racial disparity.^[139]

IV. Reform

In Texas, there are only really two ways to rectify this serious problem for capital defendants. First, the legislature could amend the current capital sentencing procedure to eliminate the 12–10 rule or the gag rule or both. Second, the Texas Court of Criminal Appeals, Fifth Circuit, or the Supreme Court could provide a judicial solution, holding that the rules are unconstitutional. This Part will show why a legislative solution is more likely.

A. Legislative Reform

A legislative fix would be the most direct and clear solution to a problem that was created legislatively.^[140] In fact, state lawmakers have made several attempts at reforming the 12–10 rule and the gag rule, though none have gained much traction.

In 2011, Representative Armando Walle introduced House Bill 3400, an act “relating to certain sentencing procedures in a capital case.”^[141] The bill sought to make several major changes. First, it proposed eliminating entirely the language in Article 37 that prohibits the defendant, defendant’s counsel, and the prosecution from informing any juror or prospective juror of the effect of a failure to agree on the special issues (the gag rule).^[142] Second, it sought to amend the 12–10 rule by removing the language requiring ten votes for a “no” answer to the “future dangerousness” and “law of parties” special issues, leaving in place only the requirement of unanimity for imposing a death sentence.^[143] Finally, the bill proposed to implement the same change with respect to the mitigation issue, but the wording of the mitigation issue requires that the provision for a “yes” answer be altered instead.^[144]

House Bill 3400 was filed in early March 2011, referred to the House Committee on Criminal Jurisprudence a week later, and considered in a public hearing at the end of that month.^[145] Following the hearing, the bill was left pending in committee.^[146] One reporter described the committee hearing on House Bill 3400 as “lackluster,”^[147] and a proponent of the legislation said that the proposal “wasn’t really pushed [in 2011].”^[148] During the hearing, the Committee only heard testimony from one witness, Andrea Keilen of Texas Defender Service.^[149]

More than 5 years later, in 2017, there was a small flurry of legislative action regarding the 12–10 rule and the gag rule. In February, Senator Eddie Lucio Jr. filed Senate Bill 1065 in the Texas Senate.^[150] While there were some similarities, the bill was notably different from House Bill 3400 in its approach to reforming capital sentencing procedure. Just like House Bill 3400, Senate Bill 1065 sought to completely eliminate the gag rule that prevented any party from informing the jury of the effect of an inability to agree.^[151] Additionally, both bills proposed removing the ten-vote threshold for answering a special issue in favor of a life sentence.^[152] What makes Senator Lucio’s initial proposal unique is the addition of language that focuses each juror’s attention on his or her sole power to impose a life sentence instead of a death sentence.

For instance, Lucio’s bill proposes to add, as the very first instruction in the jury charge, the following language: “it is the responsibility of each juror separately to determine the answers to the issues submitted under Subsection (b) and the appropriate sentence.”^[153] The next line of the bill changes a jury instruction regarding deliberations from “it shall consider all evidence” to “each juror shall independently consider all evidence.”^[154] In addition, the same section seeks to add “residual doubt” to each juror’s considerations and to reiterate that each juror is to “arrive at the juror’s own conclusion regarding the answers to the issues.”^[155] Likewise, the bill attempts to amend Article 37.071(2)(d)(3) to read “the jury may not answer [the ‘future dangerousness’ issue or the ‘law of parties’ issue] ‘yes’ unless each juror individually reaches an answer of ‘yes.’”^[156] The bill then seeks to amend the subsection on the mitigation special issue in exactly the same manner.^[157] While this is essentially just rephrasing the unanimity requirement, this proposed instruction apprises each juror of their ultimate power to impose a life sentence instead of death. This stands in stark contrast to the current rule, which implies that a juror must build a consensus with at least nine others to impose a sentence of life without the possibility of parole. It appears that by trying to remove the confusion surrounding an individual juror’s role, Senator Lucio sought to avoid the tragic situation where jurors feel pressured to change their votes to support a unanimous death sentence because they think that their vote alone is not enough to stop a death sentence from being imposed.^[158]

Senate Bill 1065 never made it out of committee.^[159] It is unclear why the bill never made it out of committee, but on the same day it was referred to the Senate Committee on Criminal Justice, members of the Texas House of Representatives led by Representative Abel Herrero introduced House Bill 3054, which addressed the same issue.^[160] In fact, three days later, Senator Lucio filed Senate Bill 1616, legislation identical to House Bill 3054, with the Secretary of the Senate.^[161] Most likely, Senator Lucio and Representative Herrero were simply working together and decided to make a united push behind Herrero’s version of the reforms. The version of House Bill 3054 that Herrero introduced was substantially similar to the bill that Representative Walle introduced in 2011. First, it sought to eliminate the gag rule.^[162] Second, it sought to eliminate the ten-vote threshold required to answer any of the special issues in a manner that supported a life sentence.^[163] Finally, the bill sought to replace “it” throughout the jury instructions with “the jury,” where that is what the pronoun stood for.^[164] This last part may have been a compromise between Senator Lucio’s efforts to remind the jurors of their individual responsibilities and Representative Walle’s bare bones changes to the instructions in his 2011 bill.^[165]

While Senate Bill 1616 fared no better than Senate Bill 1065,^[166] Herrero’s bill was actually reported out of the Committee on Criminal Jurisprudence by a vote of 6-1.^[167] This is a much better result than Representative Walle’s 2011 bill that was left pending in the same committee.^[168] The legislative history, however, reveals one odd detail. Before the bill was reported out of committee, it was substituted with Committee Substitute House Bill 3054, a version that deleted the proposed elimination of the gag rule in capital cases.^[169] One can only wonder why the Committee decided to leave the gag rule in place in the absence of the 12–10 rule. With no 12–10 rule, there is no possibility of a “failure of a jury to agree on issues submitted.”^[170] What could possibly have been the point of specifically excising this provision from the capital sentencing reform legislation?

Although the bill was reported out of committee, it was never voted on by the House.^[171] Despite its ultimate failure, the bill was more successful than prior attempts. The Committee heard testimony from three supporting witnesses and another eighteen supporting witnesses registered but did not testify.^[172] The supporting witnesses included former capital jurors, officials from nonprofit organizations, and religious leaders.^[173] However, whereas there were no witnesses in opposition to Representative Walle’s 2011 bill, seven witnesses testified in opposition to Representative Herrero’s bill.^[174] The opposing witnesses all came from law enforcement related organizations and associations.^[175] By 2017, it seems, awareness around the 12–10 rule and the gag rule had increased and supporters and detractors started to mobilize. The increased awareness resulted in the best outcome yet for legislation aimed at reforming misleading jury instructions in the capital sentencing phase.

House Bill 3054 is not the end of the story, though. In October 2018, Amanda Marzullo, then Executive Director and Policy Director for Texas Defender Service (and recurring testifying witness at the above-described committee hearings) was optimistic that some version of the reforms would finally break through and be passed by the Texas Legislature in 2019.^[176] Her optimism stemmed from Interim Charge #2 from the House Committee on Criminal Jurisprudence. The goal of Interim Charge #2 was to “[a]ssess developments in medical science and legal standards related to the imposition of the death penalty on defendants with serious mental illness or intellectual and developmental disabilities,” and to “[r]eview statutorily prescribed jury instructions used during capital sentencing.”^[177] On March 26, 2018, the Committee held a hearing in which invited witnesses discussed Interim Charge #2.^[178]

In January 2019, the Committee released its Interim Report.^[179] Incredibly, the Committee recommended that the Texas Legislature (1) “Remove Misleading Jury Instructions;” and (2) “Develop Clearer Jury Instructions.”^[180] Specifically, it recommended that Article 37 be amended to “entirely remove the language implying that a lone juror can’t affect the verdict” and also to eliminate the statute’s gag rule.^[181] The Committee went further, declaring that “[t]he goal should be a set of instructions without ambiguity that provides juries with the maximum possible practical guidance in resolving the issues fairly and intelligently.”^[182] This suggests that political will is gathering on this issue and that the future may hold a legislative solution.

In the end, Marzullo’s optimism was vindicated somewhat, but not entirely. For the first time, in 2019, legislation seeking to fix these misleading jury instructions was passed by the Texas House, only to die in the Senate Committee on State Affairs.^[183] House Bill 1030, introduced by Representative Joe Moody, differed only slightly from 2017’s House Bill 3054.^[184] Like the 2017 bill, House Bill 1030 changed the pronoun “it” to “the jury,” putting the focus back on the individuals of that body.^[185] But whereas House Bill 3054 merely sought to delete the ten-vote requirement for an answer that would avoid a death sentence,^[186] House Bill 1030 sought to add express language indicating that “unless the jury answers an issue [in favor of death], the jury shall answer the issue [in favor of a life sentence].”^[187] The language is notable in that it demonstrates ever increasing clarity. While a bare unanimity requirement for a certain result should ordinarily imply that nonunanimity means the opposite result should be reached, this bill would make it inarguable that a failure to reach twelve votes means that a death sentence will not be imposed. Nothing was left to chance.

While the legislation did not leave the Senate committee it landed in, the fact that it was passed by the House is a major success that should be celebrated and possibly a harbinger of what may come in the 87th Legislature.

B. Judicial Solution Unlikely

Another avenue that could provide a solution to the problems created by the 12–10 rule and the gag rule would be a judicial decision holding one, the other, or both unconstitutional. Given the Court of Criminal Appeals’ and the Fifth Circuit’s jurisprudence on this issue, such a move is unlikely.^[188] However, courts in a handful of other states have required or permitted that an instruction be given to the jury on the effect of a failure to reach a unanimous sentencing verdict.^[189] This Section will take each case in turn to demonstrate what a judicial decision that could effectively reform Texas’s capital sentencing procedure and clarify the effects of a nonunanimous verdict might look like.

The most famous of these cases is New Jersey v. Ramseur.^[190] In Ramseur, the New Jersey Supreme Court mandated that the jury be instructed on the effect of a failure to come to a unanimous verdict.^[191] The court used strong language to justify its decision: “To hide from the jury the full range of its sentencing options, thus permitting its decision to be based on uninformed and possibly inaccurate speculation, is to mock the goals of rationality and consistency required by modern death penalty jurisprudence.”^[192] This language applies equally to Texas’s capital sentencing procedure, but the Texas Court of Criminal Appeals has not yet taken such a stance.

In Lowenfield v. Phelps, the Supreme Court upheld the permissibility of a Louisiana trial court instruction on the default punishment in the case of a lack of unanimity but did not mandate that one be given.^[193] Additionally, in Louisiana state court, a trio of cases has supported giving further instructions to the jury on nonunanimity when they fail to agree.^[194] In State v. Williams, the Supreme Court of Louisiana held that the trial court erred “when . . . it failed to inform the jurors that, if they were unable to agree unanimously upon a recommendation, the court must impose a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.”^[195] As justification for its decision, the court wrote that the jurors were entitled to an accurate instruction “as to the consequences of their penalty recommendation.”^[196] Adding to that, the court wrote more broadly that “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed so as to minimize the risk of arbitrary and capricious action.”^[197]

Four years later in State v. Loyd, the same court found that “[b]ecause the jury asked to be told whether their recommendation of the death sentence had to be unanimous, and defense counsel requested an instruction on the consequences of a nonunanimous vote . . . we find that it was reversible error for the trial court to refuse the requested instruction.”^[198] However, in State v. Jones, the same court qualified its opinions in Loyd and Williams, upholding a trial court’s denial of a “pre-deliberation request for an instruction that a sentence of life imprisonment would be imposed if the jury failed to agree unanimously.”^[199] Only in cases where the jury is unable to come to a unanimous decision, the court held, should the jury be instructed on the consequences.^[200] The court explained that this is when the potential for “jury confusion” and an “arbitrary result” manifested.^[201] Even this sort of qualified rule that only allowed an instruction on nonunanimity in the event of the jury’s declared inability to reach a unanimous decision would be a vast improvement on Texas’s gag rule that categorically prohibits one.

In Delaware, the Supreme Court of Delaware, in Whalen v. State, applied Williams, but did so in a much stricter manner, leaving no doubt as to their commitment to clarity and forthrightness with respect to the jury.^[202] In the trial court, the jury was instructed: “If you do not recommend the death penalty, a sentence of life imprisonment without benefit of probation or parole will be imposed.”^[203] Although this seems like it pretty clearly illustrates that the only alternative to a unanimous death sentence is life without the possibility of parole, the court held that the instructions were “prejudicial” and failed to “accurately reflect the provisions” of the Delaware statute. It found that the instruction “could have been clearer—and it should have been.”^[204] The court feared that such a basic instruction would suggest to the jury that their decision “had to be unanimous in imposing a life sentence.”^[205] This sort of commitment to ensuring the jury fully understands its options and its instructions is commendable. Comparing this approach to the Texas approach highlights that Texas lacks the same commitment to juror understanding.

Before the death penalty was abolished in Washington in 2018,^[206] State v. Cross upheld jury instructions that addressed the effects of a nonunanimous decision.^[207] At the trial level, the jury was given a verdict form with three options: “YES (In which case the defendant shall be sentenced to death),” “NO (In which case the defendant shall be sentenced to life imprisonment without the possibility of release or parole),” and “NO UNANIMOUS AGREEMENT (In which case the defendant shall be sentenced to life imprisonment without the possibility of release or parole).”^[208] In addition, “the trial judge clearly and repeatedly instructed the jury that a unanimous verdict was required to sentence the defendant to death, and a nonunanimous verdict would result in a life sentence.”^[209] Nonetheless, the defendant objected to these instructions.^[210] The court upheld the validity of the instruction, noting its clarity and accordance with Washington sentencing philosophy.^[211] This would be the holy grail for Texas capital defendants. Instead of prohibiting anyone from clearing the confusion like the Texas gag rule, the judge actually “clearly and repeatedly” explained what happens if there is not unanimity, puts it in writing, and adds it as an option on the verdict form.^[212] Again, this is what commitment to a just capital sentencing process looks like.

In Hopkinson v. Shillinger, a federal habeas case related to a Wyoming death sentence, the United States District Court for the District of Wyoming upheld jury instructions that accurately conveyed the effects of a nonunanimous decision by the jury.^[213] The jury instruction given in the sentencing phase of that trial read as follows: “In order for the defendant to receive the death penalty in this case, the jury must unanimously recommend the death penalty. If the jury is unable to unanimously agree upon the penalty within a reasonable time, the Court will sentence the defendant to life imprisonment.”^[214] The court found that this instruction was “in no way misleading and correctly informed the jury of its role within the sentencing scheme.”^[215] This is another great example of an instruction that seeks to leave no uncertainty about the sentence that will be imposed if unanimity is not reached. Texas defendants should be entitled to the same clarity.

V. Conclusion

Since the Supreme Court lifted the moratorium on the death penalty in the United States in 1976, Texas has executed almost five times as many people as the next closest state.^[216] While arguments about the merits of the death penalty abound, even the staunchest proponents of the death penalty should worry about the procedural integrity of the process. A death penalty that is imposed in an arbitrary manner or one that is imposed as a result of jurors’ misunderstanding does not accurately reflect the conscience of the community.^[217]

Plainly, Texas’s 12–‍10 rule and its gag rule operate to confuse and mislead jurors. The 12–‍10 rule falsely suggests that any juror opposed to a death sentence must amass a coalition of ten like-minded jurors to prevent one, and the gag rule prohibits anyone from explaining that, in actuality, each individual juror has the power to guarantee a life sentence.

Moreover, empirical research shows that juror confusion leads juries to choose death more often, a phenomenon that is compounded when the defendant is black. This information paints a Texas capital sentencing scheme that is tragic and shameful. The rules must be changed.

While the state of capital jury instructions in Texas is grim, there may be a ray of hope. Since 2011, the Texas Legislature has considered changing the 12–10 rule and the gag rule every few years (and with increasing frequency). After spending more than a year investigating this issue while the Legislature was out of session, the Texas House Committee on Criminal Jurisprudence released a report in early 2019 recommending that Article 37 be changed to eliminate juror confusion in capital sentencing. This led to an unprecedented legislative victory (House Bill 1030 was passed out of the House) but did not ultimately lead to a change in the law. While this provides some hope, the capital defense community in Texas certainly will not be holding its breath.

Drew M. Padley

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1. The third special issue is reserved only for “cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party.” Tex. Code Crim. Proc. Ann. art. 37.071, § 2(b)(2). That issue asks “whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.” Id.

2. See id. § 2(b)(1), (d)(1)–(2), (e)(1), (f)(2), (g).

3. See id. § 2(g).

4. Id.

5. Id. § 2(a)(1). This statute is known colloquially as the gag statute or gag rule. See, e.g., Robert Clary, Texas’s Capital-Sentencing Procedure Has a Simmons Problem: Its Gag Statute and 12-10 Rule Distort the Jury’s Assessment of the Defendant’s "Future Dangerousness," 54 Am. Crim. L. Rev. 57, 63 (2017).

6. See infra Section III.A.

7. Simmons v. South Carolina, 512 U.S. 154, 161–65 (1994).

8. See, e.g., Hamilton v. State, No. 74,523, 2004 WL 3094382, at *4 (Tex. Crim. App. Oct. 13, 2004) (per curiam) (not designated for publication), habeas corpus granted in part sub nom. Ex parte Hamilton, WR-78,114-02, 2018 WL 4344324 (Tex. Crim. App. Sept. 12, 2018) (per curiam) (not designated for publication).

9. Furman v. Georgia, 408 U.S. 238, 239–40 (1972) (per curiam) (“The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”); see also Eric F. Citron, Note, Sudden Death: The Legislative History of Future Dangerousness and the Texas Death Penalty, 25 Yale L. & Pol’y Rev. 143, 151 (2006) (tracing the history of the Texas death penalty and explaining that Furman “invalidated the death penalty as practiced in all states in 1972 and imposed a temporary moratorium on its imposition”).

10. Citron, supra note 9, at 151 (explaining that these concerns formed “the heart” of the court’s decision in Furman).

11. See Act of May 28, 1973, 63d Leg., R.S., ch. 426, 1973 Tex. Gen. Laws 1122.

12. Id. art. 3, § 1, 1973 Tex. Gen. Laws. 1122, 1125–26 (codified as an amendment to Tex. Code. Crim. Proc. Ann. art. 37.071).

13. Id. The new statute (and its “future dangerousness” model) was upheld in Jurek v. Texas. Jurek v. Texas, 428 U.S. 262, 276 (1976) (“Because this system serves to assure that sentences of death will not be ‘wantonly’ or ‘freakishly’ imposed, it does not violate the Constitution.”).

14. See Tex. Code Crim. Proc. Ann. art. 37.071, § 2(d)(2).

15. Act of June 1, 1981, 67th Leg., R.S., ch. 725, § 1, 1981 Tex. Gen. Laws 2673, 2673 (codified as an amendment to Tex. Code Crim. Proc. Ann. art. 37.071(e)).

16. Id. (imposing a life sentence “[i]f the jury returns a negative finding on or is unable to answer”) (emphasis added).

17. See id.

18. See Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a)(1).

19. Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 3, § 1, 1973 Tex. Gen. Laws 1122, 1125–26 (codified as an amendment to Tex. Code Crim. Proc. Ann. art. 37.071).

20. House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 1164, 67th Leg., R.S. (1981).

21. Act of June 1, 1981, 67th Leg., R.S., ch. 725, § 1, 1981 Tex. Gen. Laws 2673, 2673 (codified as an amendment to Tex. Code Crim. Proc. Ann. art. 37.071(e)).

22. House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. H.B. 1164, 67th Leg., R.S. (1981). Opponents worried that the change would make “it too easy for prosecutors to send someone away for life” in cases that presented close calls. Id.

23. Id.

24. Id.

25. Id.

26. California v. Trombetta, 467 U.S. 479, 485 (1984).

27. Crane v. Kentucky, 476 U.S. 683, 690 (1986) (“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” (citations omitted)); cf. Simmons v. South Carolina, 512 U.S. 154, 175 (1994) (O’Connor, J., concurring) (“[O]ne of the hallmarks of due process in our adversary system is the defendant’s ability to meet the State’s case against him.”). For more support, see U.S. Const. amends. VI, XIV.

28. See Clary, supra note 5, at 68.

29. Simmons, 512 U.S. at 164–65; see also Clary, supra note 5, at 70.

30. Simmons, 512 U.S. at 156.

31. Id. at 157–58.

32. Id. at 156.

33. Id. at 157.

34. Id.

35. Id. at 160. The jury deliberated for ninety minutes before sending the judge a note asking, “Does the imposition of a life sentence carry with it the possibility of parole?” Id. The judge replied: “You are instructed not to consider parole or parole eligibility in reaching your verdict. . . . The terms life imprisonment and death sentence are to be understood in their plan [sic] and ordinary meaning.” Id. Twenty-five minutes later, the jury returned a death sentence. Id.

36. Id. at 158.

37. Id. at 160.

38. Id. at 169.

39. Id. at 163 (“In assessing future dangerousness, the actual duration of the defendant’s prison sentence is indisputably relevant. . . . [I]t is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not.”).

40. See Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’” (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, & Stevens, JJ.))).

41. Simmons, 512 U.S. at 178 (O’Connor, J., concurring).

42. See Tex. Code Crim. Proc. Ann. art. 37.071, § 2(b)(1) (showing special issue number one is “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society”).

43. Id. § 2(g) (“If the jury . . . is unable to answer any issue submitted under Subsection (b) or (e), the court shall sentence the defendant to confinement in the Texas Department of Criminal Justice for life imprisonment without parole.”). Before 2005, the alternative to a death sentence was simply life imprisonment. A capital defendant sentenced to life in prison was required to serve 40 years before becoming parole eligible. House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 60, 79th Leg., R.S. (2005). Because there was a possibility that the defendant would one day be released, the Simmons issue did not present itself.

44. Tex. Code Crim. Proc. Ann. art. 37.071, § 2(d)(2).

45. Id. § 2(a)(1).

46. Clary, supra note 5, at 71.

47. Id. at 65.

48. U.S. Const. amend. VIII.

49. Jones v. United States, 527 U.S. 373, 381 (1999) (citing Buchanan v. Angelone, 522 U.S. 269, 275 (1998)).

50. Id.

51. Brief for Petitioner at 30, Jones v. United States, 527 U.S. 373 (1999) (No. 97-9361), 1998 WL 839959, at *30 (quoting Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion of Stewart, Powell, & Stevens, JJ.)).

52. Id. (“This discretion must ‘be exercised in an informed manner,’” and thus, “accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision.”); see also Romano v. Oklahoma, 512 U.S. 1, 9 (1994) (holding that a jury cannot be “affirmatively misled regarding its role in the sentencing process”).

53. Jones, 527 U.S. at 375–76; see also Clary, supra note 5, at 90 n.167 (collecting cases and explaining that “Jones is consistently cited by both the U.S. Court of Appeals for the Fifth Circuit and the Texas Court of Criminal Appeals as authority for upholding the constitutionality of Texas’s Gag Statute that prohibits jurors from being informed that the defendant will be sentenced to life without possibility of parole if the jury cannot satisfy the numerical constraints imposed by the 12-10 Rule”).

54. Jones, 527 U.S. at 375–76 (holding that the Eighth Amendment does not require that a jury be instructed as to the consequences of their failure to agree).

55. Id. at 376, 409.

56. Id. at 376.

57. Id.

58. Id. at 376, 379. Note that this was a federal case and thus, Texas capital sentencing procedure was not implicated.

59. Brief for Petitioner, supra note 51, at *9 (“Petitioner sought to correct the potential misunderstanding he had identified . . . .”).

60. Jones, 527 U.S. at 409–10 (Ginsburg, J., dissenting). According to Jones, the “instructions which the District Court proposed to give conveyed the erroneous and highly prejudicial impression that jury deadlock as to the penalty would result in a court-imposed sentence of less than life imprisonment.” Brief for Petitioner, supra note 51, at *7.

61. Jones, 527 U.S. at 409–10 (Ginsburg, J., dissenting). Both instructions are reproduced here. Instruction number four reads:

    If, after fair and impartial consideration of all the evidence in this case, any one of you is not persuaded that justice demands Mr. Jones’s execution, then the jury must return a decision against capital punishment and must fix Mr. Jones’[s] punishment at life in prison without any possibility of release.

    Id. at 409 n.9 (citation omitted). And instruction number five reads:

    [I]f any of you—even a single juror—is not persuaded beyond a reasonable doubt that Mr. Jones’[s] execution is required in this case, then the entire jury must render a decision against his death. In that event, the jury must fix his punishment at life in prison without any possibility of release.

    Id. at 409 n.10 (alteration in original) (citation omitted).

62. Brief for Petitioner, supra note 51, at *38.

63. Id. at *30 (arguing that there was “no dispute that petitioner could not receive less than life without parole” but that it is “reasonably likely that the jury misinterpreted its instructions”).

64. Jones, 527 U.S. at 381.

65. Id. at 381–82.

66. Id. at 382 (emphasis added). In fact, the Court explained that “[t]he very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.” Id. (alteration in original) (quoting Allen v. United States, 164 U.S. 492, 501 (1896)).

67. Clary, supra note 5, at 90 & n.167 (collecting cases).

68. Hamilton v. State, No. 74,523, 2004 WL 3094382, at *4 (Tex. Crim. App. Oct. 13, 2004) (per curiam) (not designated for publication) (referencing “Article 37.071, Sections 2(d)(2) and 2(f)(2)”), habeas corpus granted in part sub nom. Ex parte Hamilton, WR-78,114-02, 2018 WL 4344324 (Tex. Crim. App. Sept. 12, 2018) (per curiam) (not designated for publication).

69. Id.

70. Masterson v. State, 155 S.W.3d 167, 175–76 (Tex. Crim. App. 2005); see also Clary, supra note 5, at 90 n.167.

71. Masterson, 155 S.W.3d at 175.

72. Id. at 175–76.

73. Resendiz v. State, 112 S.W.3d 541, 549 (Tex. Crim. App. 2003).

74. Holberg v. State, 38 S.W.3d 137 (Tex. Crim. App. 2000), full opinion available at https://www.txcourts.gov/All_Archived_Documents/ccaInformation/opinions/73127.htm [https://perma.cc/K544-2WCN] (“The United States Supreme Court has held, however, that the Eighth Amendment does not require that juries be informed as to the effect of a failure to reach unanimous agreement on punishment issues.”).

75. Curiously, none of these cases are from after 2005. It is unclear whether that is because litigants have stopped attempting to argue that the 12–10 rule and gag rule violate the Eighth Amendment or, if they have not stopped, if those claims have been overruled on authority other than Jones.

76. Young v. Davis, 835 F.3d 520, 528 (5th Cir. 2016). Note that Young’s Eighth Amendment claim actually mentioned Simmons as well. Id. For more analysis on why this claim “illustrates the hurdles a Texas capital defendant confronts” in a federal habeas proceeding, see Clary, supra note 5, at 71 n.86.

77. Blue v. Thaler, 665 F.3d 647, 669–70 (5th Cir. 2011).

78. Jackson v. Dretke, 181 F. App’x 400, 411–12 (5th Cir. 2006).

79. Id.

80. Sprouse v. Stephens, 748 F.3d 609, 623 (5th Cir. 2014) (citing Druery v. Thaler, 647 F.3d 535, 542 (5th Cir. 2011)).

81. Druery, 647 F.3d at 535.

82. Id. at 544.

83. Id.

84. Id.

85. Id.

86. See, e.g., Trevino v. Thaler, 449 F. App’x 415 (5th Cir. 2011); Rivas v. Thaler, 432 F. App’x 395 (5th Cir. 2011); Kerr v. Thaler, 384 F. App’x 400 (5th Cir. 2010).

87. Brown v. Texas, 522 U.S. 940, 940, 942 (1997) (opinion of Stevens, J., respecting denial of certiorari). In response to the Brown v. Texas opinion, the Texas legislature subsequently changed the rule to allow an instruction to the jury regarding parole ineligibility; see also Janet Morrow & Robert Morrow, In a Narrow Grave: Texas Punishment Law in Capital Murder Cases, 43 S. Tex. L. Rev. 979, 1075 n.436 (2002).

88. Brown, 522 U.S. at 941–42 n.2 (citing William J. Bowers et al., A New Look at Public Opinion on Capital Punishment: What Citizens and Legislators Prefer, 22 Am. J. Crim. L. 77, 101, 105 (1994)).

89. Id. (citing William J. Bowers et al., A New Look at Public Opinion on Capital Punishment: What Citizens and Legislators Prefer, 22 Am. J. Crim. L. 77, 89–90 (1994)).

90. Id.

91. Id.

92. There are two concurrent reasons why jurors may feel pressured to impose a death sentence. One is that in the face of uncertainty surrounding what happens in the event there is a hung jury, jurors would rather impose a death sentence than risk imposing a sentence that could result in a capital defendant being paroled. The other is the seeming impossibility of convincing nine other jurors that a life without parole (LWOP) sentence is appropriate in order to reach the statutory threshold required to officially answer in favor of the defendant on one of the two special issues. See Jolie McCullough, Texas Death Penalty Juror Hopes to Change Law as Execution Looms, Tex. Trib. (Mar. 28, 2017, 12:00 AM), https://www.texastribune.org/2017/03/28/texas-death-penalty-juror-hopes-change-law-execution-looms/ [https://perma.cc/9QGQ-TJKA].

93. See id.; First Amended Petition for a Writ of Habeas Corpus at 19–22, Young v. Stephens, No. SA-13-CA-500-XR, 2015 WL 4276196 (W.D. Tex. 2015); Application for Postconviction Writ of Habeas Corpus at 9–10, Adams v. Quarterman, No. H-08-CV-1216, 2009 WL 7445295 (S.D. Tex. 2009).

94. McCullough, supra note 92.

95. Id. Berger also thought it “unconscionable that men and women like [him], with the power of life and death, are told that they must act only as a single group, and that their individual voice doesn’t matter.” Id.

96. Judgment of Conviction, State v. Young, No. 2005-CR-1183, 2006 WL 6305427 (187th Dist. Ct., Bexar County, Tex. Feb. 10, 2006).

97. First Amended Petition for a Writ of Habeas Corpus, supra note 93, Exhibits A–D (Declarations of Robert Gonzalez, Ramon Luna, Jason Olivarri, and Monique Pathaphone).

98. Id. Exhibit D, at 1 (Declaration of Monique Pathaphone).

99. Id.

100. Id. Exhibit A (Declaration of Robert Gonzalez).

101. See id. at 22–23 (“In Mr. Young’s case, it is not necessary to speculate as to how a reasonable juror would have understood the instructions. We know that at least four of the jurors understood the instructions to mean that a life sentence was not possible unless ten jurors agreed. We know the error was not harmless. The misleading instruction caused jurors to change their votes and sentence Mr. Young to death not because they believed that he should be put to death but because they did not think they could . . . get ten jurors to agree on a [life sentence].”).

102. Application for Postconviction Writ of Habeas Corpus, supra note 93, at 9.

103. Id. Exhibit B, at 1. In her Declaration, Kathryn Starling wrote: “During jury deliberations, I initially voted for life in prison without parole. Eventually, I voted for death because it was my impression that it would be declared a mistrial if I held out.”

104. Id. Exhibit D (Affidavit of Katherine C. Black).

105. Id.

106. See supra Section III.A.

107. Id.

108. John H. Blume et al., Lessons from the Capital Jury Project, in Beyond Repair: America’s Death Penalty 144, 145 (Stephen P. Garvey ed., 2003).

109. Id. at 145 n.2 (listing studies); see also, e.g., John H. Blume, An Overview of Significant Findings from the Capital Jury Project and Other Empirical Studies of the Death Penalty Relevant to Jury Selection, Presentation of Evidence and Jury Instructions in Capital Cases, Cornell L. Sch. (2008), https://www.lawschool.cornell.edu/research/death-penalty-project/upload/Empirical-Studies-Summaries-revised-spring-2010.docx [https://perma.cc/8WVA-CDXP] (organizing publications by conclusion and summarizing findings).

110. Blume et al., supra note 108, at 146–47.

111. Id. at 147.

112. Id. at 146–47 (noting that “mock jurors are not real jurors” but also acknowledging that, with respect to juror interviews, “inferences based on an individual case may fail to be generalizable across a wider range of cases” and that delay between the capital trial and the interview, memory decay, eagerness to please interviewers, and “distortion due to the influence of hindsight” could potentially affect the juror’s responses).

113. Id. at 148–61 (highlighting concerns about jurors’ ability to be impartial and to understand and follow the jury instructions).

114. Id. at 150 (explaining that this response should have disqualified the juror from ever sitting on a capital jury).

115. Id. at 152 & tbl.2.

116. Id. at 154–59.

117. Id. at 159–61, 161 tbl.6.

118. See, e.g., Woodson v. North Carolina, 428 U.S. 280, 305 (1975) (holding that North Carolina’s mandatory death penalty statute violated the Eighth and Fourteenth Amendments).

119. For the view that “capital penalty phase instructions actually may add to juror confusion rather than to clarify and bring order to this uniquely subjective, value-laden decision-making process,” see Mona Lynch & Craig Haney, Discrimination and Instructional Comprehension: Guided Discretion, Racial Bias, and the Death Penalty, 24 Law & Hum. Behav. 337, 339 (2000).

120. Blume, supra note 109 (collecting publications in part III about the effect of confusing jury instructions as gleaned from the CJP).

121. Shari Seidman Diamond & Judith N. Levi, Improving Decisions on Death by Revising and Testing Jury Instructions, 79 J. Am. Judicature Soc’y 224, 231 (1996). The study detailed in this journal article was an improvement upon a study (The Zeisel Study) that served as the basis for a magistrate judge’s conclusion that “jury instructions were not ‘intelligible and definite enough to provide even a majority of jurors hearing them with a clear understanding of how they are to go about deciding whether the defendant lives or dies.’” Id. at 225. Finding that this allowed an unconstitutional “arbitrary and unguided imposition of the death penalty,” the magistrate judge recommended that the defendant’s death sentence be vacated and the district court judge accepted. Id. However, the decision was reversed on appeal in the Seventh Circuit because the court disapproved of the design of the study. Id. That disapproval inspired Diamond and Levi to improve upon the design and attempt to strengthen the legitimacy of the claim. Id. at 226.

122. Id. at 227.

123. Id. at 230 (“Percent correct increased on average from 50 to 65 percent; incorrect dropped from an average of 45 percent to an average of 30 percent.”).

124. Id. at 231.

125. Id. They did note that “[t]his rather large difference reaches only borderline significance at conventional levels (p<.07, one-tailed).” Id.

126. Id.

127. Lynch & Haney, supra note 119, at 347.

128. Id. at 342, 344.

129. Id. at 342.

130. Id. at 344.

131. Id. at 345–47.

132. Id. at 346–47. (“Instructional comprehension in the present study was poor overall: the mean ‘correctness’ score on the comprehension test was 16.4 of a possible 35 points (47% correct). Only 2% (7) of participants scored 30 points or above, while nearly the same proportion (1.5%) got absolutely nothing correct on the comprehension test.” (footnote omitted)).

133. Id. at 347.

134. Id.

135. Id. (emphasis added); see also id. at 354 (“[A]mong participants with poor instructional comprehension, the rate of death sentencing for Black defendants was increased by almost half over the rate for White defendants (60% versus 41%).”). Additionally, it appears that white defendants “benefited slightly from or were little affected by instructional incomprehension.” Id. at 354–55.

136. Id. at 339.

137. See Death Row Information: Gender and Racial Statistics of Death Row Offenders, Tex. Dep’t Crim. Just., https://www.tdcj.texas.gov/death_row/dr_gender_racial_stats.html [https://perma.cc/U2CC-DJMA] (last updated Mar. 6, 2019); Keri Blakinger, Texas Sent 7 People to Death Row in 2018. All of Them Were People of Color, Hous. Chron. (Dec. 14, 2018, 6:29 AM), https://www.chron.com/news/houston-texas/houston/article/Texas-sent-7-people-to-death-row-in-2018-All-of-13465321.php [https://perma.cc/N6SL-5688] (“In Harris County, every defendant sentenced to death since 2004 has been a person of color. And across the state, more than 70 percent of death sentences have been imposed on people of color over the last five years . . . .”).

138. See supra Part III.

139. To be clear, there are many factors that contribute to the racial disparity in Texas death sentences. See Richard C. Dieter, The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides, Death Penalty Info. Ctr. (June 1998), https://deathpenaltyinfo.org/death-penalty-black-and-white-who-lives-who-dies-who-decides#Executive Summary [https://perma.cc/N4PY-UX3J]. However, that does not mean that efforts to resolve the disparity incrementally, like the one proposed in this section, should not be attempted.

140. See supra Section II.A.

141. Tex. H.B. 3400, 82d Leg., R.S. (2011); 82(R) History for HB 3400, Tex. Legislature Online, https://capitol.texas.gov/BillLookup/History.aspx?LegSess=82R&Bill=HB3400 [https://perma.cc/BMM3-QS4Z] (last visited Feb. 26, 2020); Bills Authored/Joint Authored Rep. Armando Walle, Tex. Legislature Online, https://capitol.texas.gov/reports/report.aspx?LegSess=82R&ID=author&Code=A4930 [https://perma.cc/B33L-9Y5A] (last visited Feb. 26, 2020).

142. Tex. H.B. 3400 (proposing to eliminate language from art. 37.071, § (2)(a)(1)).

143. Id. (proposing amending art. 37.071, § (2)(d)(2) to read, in its entirety: “it may not answer any issue submitted under Subsection (b) ‘yes’ unless it agrees unanimously”).

144. Id. (proposing amending art. 37.071, § (2)(f)(2)). The mitigation issue asks “[w]hether . . . there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.” Tex. Code Crim. Proc. Ann. art. 37.071, § (2)(e)(1). A “no” answer to this question would support a death sentence. Id. § 2(g).

145. 82(R) History for HB 3400, Tex. Legislature Online, https://capitol.texas.gov/BillLookup/History.aspx?LegSess=82R&Bill=HB3400 [https://perma.cc/4ZRF-2X2G] (last visited Feb. 26, 2020).

146. Id.

147. McCullough, supra note 92.

148. Id. (alteration in original). The proponent mentioned is Amanda Marzullo, who began serving as the Executive Director of Texas Defender Service in 2017. Amanda Marzullo, Transitions at TDS, Tex. Defender Serv. (Jan. 11, 2017), http://texasdefender.org/transitions-at-tds/ [https://perma.cc/LV5Y-CCL2].

149. See Witness List: Hearing Before Criminal Jurisprudence Comm., 82d Leg., R.S. 15 (Tex. 2011), https://capitol.texas.gov/tlodocs/82R/witlistmtg/pdf/C2202011032900001.PDF [https://perma.cc/B7FJ-XB9E] (listing the witnesses that registered to testify and not testify for HB 3400).

150. 85(R) History for SB 1065, Tex. Legislature Online, https://capitol.texas.gov/BillLookup/History.aspx?LegSess=85R&Bill=SB1065 [https://perma.cc/2Q37-UFSA] (last visited Feb. 28, 2020); Senator Eddie Lucio, Jr.: District 27, Tex. Senate, https://senate.texas.gov/member.php?d=27 [https://perma.cc/PT7K-V3EH] (last visited Feb. 28, 2020).

151. Tex. S.B. 1065, 85th Leg., R.S. (2017) (proposing to strike the last sentence of art. 37.071, § (2)(a)(1)).

152. Id. (proposing to amend art. 37.071, §§ 2(d)(3), 2(f)(3)).

153. Id. (proposing to add art. 37.071, § 2(d)(1)).

154. Id. (proposing to alter art. 37.071, § 2(d)(2)).

155. Id. (proposing to alter art. 37.071, § 2(d)(2)).

156. Id. (proposing to alter art. 37.071, § 2(d)(3)); see also Tex. Code Crim. Proc. Ann. art. 37.071, § 2(b)(1)–(2) (describing the “future dangerousness” and “law of parties” special issues).

157. Tex. S.B. 1065 (proposing to alter art. 37.071, § 2(f)(1)–(5)).

158. See supra Section III.A.

159. 85(R) History for SB 1065, Tex. Legislature Online, https://capitol.texas.gov/BillLookup/History.aspx?LegSess=85R&Bill=SB1065 [https://perma.cc/4YYF-UKF5] (last visited Feb. 28, 2020) (showing last action was referral to Criminal Justice Committee).

160. See id. (showing bill was referred to committee on March 6, 2017); 85(R) Bill Stages for HB 3054, Tex. Legislature Online, https://capitol.texas.gov/billlookup/BillStages.aspx?LegSess=85R&Bill=HB3054 [https://perma.cc/Q2DW-V5KJ] (last visited Feb. 28, 2020) (showing bill was filed on March 6, 2017); see also Tex. H.B. 3054, 85th Leg., R.S. (2017).

161. 85(R) History for SB 1616, Tex. Legislature Online, https://capitol.texas.gov/billlookup/History.aspx?LegSess=85R&Bill=SB1616 [https://perma.cc/V6KV-W6PF] (last visited Feb. 29, 2020) (showing bill was filed on March 9, 2017); see also Tex. S.B. 1616, 85th Leg., R.S. (2017).

162. Tex. H.B. 3054 (proposing to delete last sentence of art. 37.071, § (2)(a)(1)).

163. Id. (seeking to change art. 37.071, § 2(d)(2) (“future dangerousness” and “law of parties” issues) and art. 37.071, § 2(f)(2) (mitigation issue)).

164. Id. For instance, “it may not answer any issue submitted under Subsection (b) “yes” unless it agrees unanimously” was changed to “the jury may not answer any issue submitted under Subsection (b) ‘yes’ unless the jury agrees unanimously.” Id. (emphasis added).

165. Compare Tex. S.B. 1065, 85th Leg., R.S. (2017), with Tex. H.B. 3400, 82d Leg., R.S. (2011) (showing the two different approaches).

166. 85(R) History for SB 1616, Tex. Legislature Online, https://capitol.texas.gov/billlookup/History.aspx?LegSess=85R&Bill=SB1616 [https://perma.cc/LPC9-J4M8] (last visited Feb. 29, 2020) (showing no progress after the bill was referred to Senate Committee on Criminal Justice).

167. 85(R) Bill Stages for HB 3054, Tex. Legislature Online, https://capitol.texas.gov/billlookup/BillStages.aspx?LegSess=85R&Bill=HB3054 [https://perma.cc/CQ5D-8JVS] (last visited Feb. 28, 2020) (showing bill reported out of House Committee on Criminal Jurisprudence).

168. 82(R) History for HB 3400, Tex. Legislature Online, https://capitol.texas.gov/BillLookup/History.aspx?LegSess=82R&Bill=HB3400 [https://perma.cc/RB5J-HWBS] (last visited Feb. 26, 2020).

169. Tex. C.S.H.B. 3054, 85th Leg., R.S. (2017); see also House Criminal Jurisprudence Comm., Bill Analysis, Tex. C.S.H.B. 3054, 85th Leg., R.S. (2017) (explaining that there is “no equivalent provision” in C.S.H.B. 3054 to the gag rule provision in H.B. 3054).

170. Tex. Code Crim. Proc. Ann. art. 37.071, § (2)(a)(1). Either there is a consensus among the jurors and the issue is answered in favor of a death sentence or there is not, and the issue is answered in favor of a life sentence. See id. § (2)(g).

171. 85(R) Bill Stages for HB 3054, Tex. Legislature Online, https://capitol.texas.gov/billlookup/BillStages.aspx?LegSess=85R&Bill=HB3054 [https://perma.cc/PD37-RZ9V] (last visited Feb. 28, 2020).

172. Witness List: Hearing Before Criminal Jurisprudence Comm., 85th Leg., C.S. 12 (Tex. 2017), https://capitol.texas.gov/tlodocs/85R/witlistmtg/pdf/C2202017040314001.PDF [https://perma.cc/NSQ4-VQ3K] (listing the witnesses that testified and registered but did not testify for H.B. 3054).

173. Id.

174. Id. at 13.

175. Id.

176. Telephone Interview with Amanda Marzullo, Exec. Dir. & Policy Dir., Tex. Def. Serv. (Oct. 19, 2018).

177. Tex. House Comm. on Criminal Jurisprudence, Interim Committee Charges, 85th Leg. (2017) (emphasis added).

178. Tex. House Comm. on Criminal Jurisprudence Minutes 1, 85th Leg., R.S. (Mar. 26, 2018).

179. Tex. House Comm. on Criminal Jurisprudence, Interim Report to the 86th Leg., 86th Leg., R.S. (2019).

180. Id. at 14.

181. Id.

182. Id.

183. Actions for HB 1030, Tex. Legislature Online, https://capitol.texas.gov/BillLookup/Actions.aspx?LegSess=86R&Bill=HB1030 [https://perma.cc/TG2H-2PK5] (last visited Dec. 22, 2019); Bill Stages for HB 1030, Tex. Legislature Online, https://capitol.texas.gov/BillLookup/BillStages.aspx?LegSess=86R&Bill=HB1030 [https://perma.cc/C9KK-TA3F] (last visited Dec. 22, 2019).

184. Compare Tex. H.B. 1030, 86th Leg., R.S. (2019), with Tex. H.B. 3054, 85th Leg., R.S. (2017).

185. Tex. H.B. 1030.

186. Tex. H.B. 3054.

187. Tex. H.B. 1030.

188. See supra Sections II.C.1–.2.

189. Laurie B. Berberich, Note, Jury Instructions Regarding Deadlock in Capital Sentencing, 29 Hofstra L. Rev. 1301, 1321 & n.180, 1322 & n.187 (2001) (providing examples of states that have required an instruction be given and those that have held no instruction is required) (first citing Whalen v. State, 492 A.2d 552, 562 (Del. 1985); then citing State v. Williams, 392 So. 2d 619, 633, 633–35 (La. 1980) (on rehearing); then citing State v. Ramseur, 524 A.2d 188, 282–83 (N.J. 1987); then citing United States v. Chandler, 996 F.2d 1073, 1089 (11th Cir. 1993); then citing Evans v. Thompson, 881 F.2d 117, 123–24 (4th Cir. 1989); and then citing Lowenfield v. Phelps, 484 U.S. 231 (1988)); 24 C.J.S. Criminal Procedure and Rights of the Accused § 2345 (2018).

190. Ramseur, 524 A.2d 188. Famous because its reasoning was discussed and found to be unpersuasive in Jones. Jones v. United States, 527 U.S. 373, 383 (1999) (“We find the reasoning of the Virginia Supreme Court in Justus far more persuasive than that of the New Jersey Supreme Court, especially in light of the strong governmental interest that we have recognized in having the jury render a unanimous sentence recommendation[.]”).

191. Berberich, supra note 189, at 1320 (citing Ramseur, 524 A.2d at 284).

192. Id. at 1320 n.170 (citing Ramseur, 524 A.2d at 284).

193. Id. at 1322 & n.188 (citing Lowenfield, 484 U.S. at 233–35) (explaining that the jury was instructed that if there was no unanimous decision, “the court would be required to sentence the defendant to life imprisonment without the possibility of parole or a suspended sentence”).

194. Williams, 392 So. 2d at 624–25; State v. Loyd, 459 So. 2d 498, 503 (La. 1984); State v. Jones, 474 So. 2d 919, 932 (La. 1985).

195. Williams, 392 So. 2d at 633.

196. Id.

197. Id.

198. Loyd, 459 So. 2d at 503. The court also justifies its decision by noting that the request “was a correct statement of law not requiring explanation or qualification.” Id. That reasoning reads like an indictment of the Texas gag rule. What seems like common sense under Louisiana law (to allow instructions of correct statements of law) is specifically prohibited by the gag rule.

199. Jones, 474 So. 2d at 935 (emphasis added).

200. Id. at 936.

201. Id.

202. Whalen v. State, 492 A.2d 552, 562 (Del. 1985). The court cited Williams for the proposition that jurors must be “fully informed of the consequences of their votes and the penalties which could result in each eventuality.” Id. (citing Williams, 392 So. 2d at 634).

203. Id.

204. Id.

205. Id.

206. State v. Gregory, 427 P.3d 621, 642 (Wash. 2018).

207. State v. Cross, 132 P.3d 80, 97 (Wash. 2006).

208. Id. at 96.

209. Id. at 97.

210. Id. at 96–97 (“Cross argues that this wording essentially instructed the jury that a nonunanimous decision is not a verdict. He also specifically challenges the verdict form for not combining ‘no’ and ‘no unanimous agreement.’”).

211. Id. at 97.

212. Id. at 96–97.

213. Hopkinson v. Shillinger, 645 F. Supp. 374, 407–08 (D. Wyo. 1986).

214. Id. at 407 (detailing Instruction No. 8).

215. Id. at 408.

216. Death Penalty Info. Ctr., Facts About the Death Penalty 3 (2019), https://deathpenaltyinfo.org/documents/FactSheet.pdf [https://perma.cc/4XKL-ZBSN] (showing that Texas has executed 561 people since 1976 and the state with the second most, Virginia, has executed 113).

217. Witherspoon v. Illinois, 391 U.S. 510, 519 (1968) (“Guided by neither rule nor standard, ‘free to select or reject as it [sees] fit,’ 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.” (alteration in original)).