The Vanishing Voice: Juror Disenfranchisement in Capital Cases and The Erosion of Constitutional Protections

Authors

• Yacenda Hudson, Esq. Assistant Professor of Law, Barry University

Abstract

After years of battling to have an uninfringed right to vote and participate on a jury panel, the removal of the unanimity requirement for a death penalty recommendation threatens to disenfranchise minority jurors, thereby implicating the Sixth and Fourteenth Amendments. The death penalty is one of the most controversial issues in our society, and it has evolved over time. Due to a paradigm shift in beliefs, the death penalty’s constitutionality was challenged under the Eighth and Fourteenth Amendments. Pivotal legal decisions, such as Furman v. Georgia and Hurst v. Florida, required states to institute changes to the death penalty. Florida and Alabama were no exception and have continued to evolve their death penalty laws. Alabama evolved from the requirement of a jury to agree on a death sentence to a requirement of a ten-vote majority for a death penalty recommendation. On the other hand, after the heinous acts of Nikolas Cruz in Parkland in 2018, Florida removed the unanimity requirement and implemented the lowest requirement of any state – eight votes – for the death penalty recommendation. The change was in response to the outcry against Cruz being sentenced to life imprisonment, rather than death. However, it also enhanced an underlying systematic flaw of juror disenfranchisement seen in several states, which has reverted the power of the minority juror vote back to the era of Jim Crow.

This Article examines the history of the death penalty and the historical struggle of minorities to gain the right to vote on death penalty panels. It explores the removal of the unanimity requirement’s impact on the minority vote, including the present state of minority underrepresentation on death panels, the feelings of death penalty jurors, and minority divergent perspectives on death. Data has reflected that the use of peremptory challenges leaves death panels with very few minorities to participate in a core process of the legal system. Under these circumstances, the removal of unanimity extinguishes meaningful discussion and creates detrimental consequences, increasing the likelihood that a minority vote on the death panel will be ignored or suppressed and, therefore, abridged. The combination of these factors leads to an erosion of constitutional protections under the Sixth and Fourteenth Amendments. This disenfranchisement cannot be allowed to continue, and solutions such as abolishing the death penalty, extending the Batson test with data requirements for death cases to ensure juror diversity, and requiring all states to mirror the federal death penalty’s procedural protection of unanimity should be considered.

Recommended Citation

Yacenda Hudson, The Vanishing Voice: Juror Disenfranchisement in Capital Cases and The Erosion of Constitutional Protections, 31 Mich. J. Race & L. 115 (2026).
Available at: https://repository.law.umich.edu/mjrl/vol31/iss1/4