Brief for Legal Scholars and Historians as Amici Curiae in Support of Petitioners, Nos. 26-76, 26-78 (U.S. Supreme Ct. Aug. 14, 2026)

G. Ben Cohen, University of Akron Law School
Seth P. Waxman, Wilmer, Cutler, Pickering, Hale and Dorr LLP

Abstract

Under a Florida law enacted in 2023, a judge may impose the death penalty only if the jury first “determine[s] that the defendant should be sentenced to death.” Fla. Stat. § 921.141(2)(c). The question presented is whether the Sixth or Eighth Amendment requires that jury determination to be unanimous, or whether it suffices—as provided in the statute—for only eight of the twelve jurors to vote for death.