How could a jury decide against the death penalty for a murderer who killed seven people? The answer to the Brown's Chicken case is in this Chicago Sun-Times story by Eric Herman, Leonard Fleming, and Rummana Hussain. The jury as a whole did not decide against the death penalty. Illinois has the misguided single-juror veto rule, and a single juror held out. On a vote of 11 to 1, the decision of the 1 prevails over the decision of the 11.

The single-juror veto rule is often misleadingly called a unanimity requirement and misrepresented as being consistent with the tradition of unanimous verdicts in criminal cases. It is just the opposite. For the guilt verdict, the jury must be unanimous one way or the other, and the jurors must deliberate until they are unanimous or truly deadlocked. A hung jury does not result in an acquittal. That would be preposterous. Why, then, do so many people docilely accept such a rule in the penalty phase?

What happened in the penalty phase of this case is exactly the opposite of the deliberate-until-unanimous model for the guilt phase:

Jurors said they took only one vote. They did not press the holdout to change her mind and did not take another vote out of respect for her views, several jurors said.

The best way to handle juror disagreement is the way California does, which is the same as the guilt verdict. The jury must be unanimous to return a verdict. If they are truly deadlocked, it is a mistrial followed by a retrial of the penalty phase.

The arbitrariness in capital punishment today is not in who gets it but in who is arbitrarily let off. Retroactive changes in the rules are one major source of arbitrariness. The single-juror veto is another. States that have this rule should get rid of it.