Code of Alabama

Ala. Code § 13A-5-46 (2026)

Sentence Hearing - Conducted Before Jury Unless Waived; Trial Jury to Sit Unless Impossible or Impracticable; Separation of Jury; Instructions to Jury; Advisory Verdicts; Vote Required; Mistrial; Waiver of Right to Advisory Verdict.

✓ official Alabama Legislature (ALISON) text, current July 2026

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(a) Unless both parties with the consent of the court waive the right to have the sentence hearing conducted before a jury as provided in Section 13A-5-44(c), it shall be conducted before a jury which shall return a verdict as provided by subsection (e) of this section. If both parties with the consent of the court waive the right to have the hearing conducted before a jury, the trial judge shall proceed to determine sentence without a verdict from a jury. Otherwise, the hearing shall be conducted before a jury as provided in the remaining subsections of this section.

(b) If the defendant was tried and convicted by a jury, the sentence hearing shall be conducted before that same jury unless it is impossible or impracticable to do so. If it is impossible or impracticable for the trial jury to sit at the sentence hearing, or if the case on appeal is remanded for a new sentence hearing before a jury, a new jury shall be impanelled to sit at the sentence hearing. The selection of that jury shall be according to the laws and rules governing the selection of a jury for the trial of a capital case.

(c) The separation of the jury during the pendency of the sentence hearing, and if the sentence hearing is before the same jury which convicted the defendant, the separation of the jury during the time between the guilty verdict and the beginning of the sentence hearing, shall be governed by the law and court rules applicable to the separation of the jury during the trial of a capital case.

(d) After hearing the evidence and the arguments of both parties at the sentence hearing, the jury shall be instructed on its function and on the relevant law by the trial judge. The jury shall then retire to deliberate concerning the verdict it is to return.

(e) After deliberation, the jury shall return a verdict as follows:

(1) If the jury determines that no aggravating circumstances as defined in Section 13A-5-49 exist, it shall return a verdict of life imprisonment without parole;

(2) If the jury determines that one or more aggravating circumstances as defined in Section 13A-5-49 exist but do not outweigh the mitigating circumstances, it shall return a verdict of life imprisonment without parole;

(3) If the jury determines that one or more aggravating circumstances as defined in Section 13A-5-49 exist and that they outweigh the mitigating circumstances, if any, it shall return a verdict of death.

(f) The decision of the jury to return a verdict recommending a sentence of life imprisonment without parole must be based on a vote of a majority of the jurors. The decision of the jury to recommend a sentence of death must be based on a vote of at least 10 jurors. The verdict of the jury must be in writing and must specify the vote.

(g) If the jury is unable to reach a verdict recommending a sentence, or for other manifest necessity, the trial court may declare a mistrial of the sentence hearing. Such a mistrial shall not affect the conviction. After such a mistrial or mistrials another sentence hearing shall be conducted before another jury, selected according to the laws and rules governing the selection of a jury for the trial of a capital case. Provided, however, that, subject to the provisions of Section 13A-5-44(c), after one or more mistrials both parties with the consent of the court may waive the right to have a verdict from a jury, in which event the issue of sentence shall be submitted to the trial court without a recommendation from a jury.

(Acts 1981, No. 81-178, p. 203, §8; Act 2017-131, §1.)

Notes of Decisions

Cited in 197 cases (18 in the last 5 years), 1982–2026 · leading case: Ex Parte McNabb, 887 So. 2d 998 (Ala. 2004).

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Ex Parte McNabb, 887 So. 2d 998 (Ala. 2004). · cites it 7× “First, he argues that they "ran afoul of Ala.Code § 13A-5-46 as interpreted ... in Ex parte Bryant, [Ms.”

Ring v. Arizona, 536 U.S. 584 (2002). · cites it 2× “See Ala. Code §§ 13A-5-46, 13A-5-47 (1994); Del.”

Ex Parte Waldrop, 859 So. 2d 1181 (Ala. 2002). · cites it 5× “Subsequently, the trial court conducted a sentencing hearing pursuant to Ala.Code 1975, § 13A-5-46. After the sentencing hearing, the jury, by a vote of 10-2, recommended that Waldrop be sentenced to life imprisonment without the possibility of parole.”

Ferguson v. State, 13 So. 3d 418 (Ala. Crim. App. 2008). · cites it 8× “Code 1975, provides: "In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury…”

Ex parte State, 223 So. 3d 954 (Ala. Crim. App. 2016). · cites it 8× “Section 13A-5-46(e) provides specific guidance to the jury in recommending a sentence.”

Borden v. Allen, 646 F.3d 785 (11th Cir. 2011). · cites it 4× “Ala.Code § 13A-5-46. A jury recommendation of a sentence of death must be based on the vote of at least ten of the twelve jurors, while a jury recommendation of a sentence of life without parole requires a vote of a majority of the jurors.”

Daniel v. Comm'r, Alabama Dep't of Corr., 822 F.3d 1248 (11th Cir. 2016). · cites it 2× “20 Ala.Code § 13A-5-46(f). Fourth, while we recognize that trial counsel elicited some mitigation evidence of Mr.”

Johnson v. State, 120 So. 3d 1130 (Ala. Crim. App. 2009). · cites it 7× “Each part of the sentencing process is equally mandated by the statute (§§ 13A-5-46, -47(e)); and the errorless application by the court of its part does not cure the erroneous application by the jury of its part.”

Williams v. State, 710 So. 2d 1276 (Ala. Crim. App. 1996). · cites it 4× “The appellant contends that § 13A-5-46, which provides that the jury's verdict in a capital case will be advisory, violates Art.”

Ex Parte McGriff, 908 So. 2d 1024 (Ala. 2005). · cites it 4× “exist," § 13A-5-46(e)(1). All of these considerations and potential issues militate in favor of a prospective direction by this Court that the count of the jurors' votes on the issue of the existence of an aggravating circumstance be expressly recorded on the verdict form.”

Thomas v. State, 824 So. 2d 1 (Ala. Crim. App. 2001). · cites it 4× “Before opening arguments, the court read to the jury all but the last sentence of § 13A-5-46 (informing the jury of a defendant's right to waive a sentencing hearing before a jury; of the procedure in the event a defendant waives that hearing; of the procedure if the jury that…”

Blackmon v. State, 7 So. 3d 397 (Ala. Crim. App. 2006). · cites it 4× “See § 13A-5-46, Ala.Code 1975. Thus, the jury was not misled regarding its role in the sentencing decision.”

Show all 197 citing cases →

— Ala. Code § 13A-5-46(a) — 30 cases

Ferguson v. State, 13 So. 3d 418 (Ala. Crim. App. 2008). “Code 1975, provides: "In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury…”

Drinkard v. State, 777 So. 2d 225 (Ala. Crim. App. 1998).

Turner v. State, 924 So. 2d 737 (Ala. Crim. App. 2003).

Burgess v. State, 811 So. 2d 557 (Ala. Crim. App. 1998).

Bush v. State, 695 So. 2d 70 (Ala. Crim. App. 1996).

— Ala. Code § 13A-5-46(b) — 5 cases

State v. Maugaotega, 168 P.3d 562 (Haw. 2007).

Ingram v. State, 779 So. 2d 1225 (Ala. Crim. App. 1999).

Davis v. State, 718 So. 2d 1148 (Ala. Crim. App. 1997).

Hardy v. State, 804 So. 2d 247 (Ala. Crim. App. 1999).

State v. Peralto, 18 P.3d 203 (Haw. 2001).

— Ala. Code § 13A-5-46(d) — 14 cases

Ex Parte McNabb, 887 So. 2d 998 (Ala. 2004). “First, he argues that they "ran afoul of Ala.Code § 13A-5-46 as interpreted ... in Ex parte Bryant, [Ms.”

Carroll v. State, 599 So. 2d 1253 (Ala. Crim. App. 1992).

Smith v. State, 838 So. 2d 413 (Ala. Crim. App. 2002).

Kuenzel v. State, 577 So. 2d 474 (Ala. Crim. App. 1990).

McNabb v. State, 887 So. 2d 929 (Ala. Crim. App. 2003).

— Ala. Code § 13A-5-46(e) — 31 cases

Simmons v. South Carolina, 512 U.S. 154 (1994).

Ex Parte Waldrop, 859 So. 2d 1181 (Ala. 2002). “Subsequently, the trial court conducted a sentencing hearing pursuant to Ala.Code 1975, § 13A-5-46. After the sentencing hearing, the jury, by a vote of 10-2, recommended that Waldrop be sentenced to life imprisonment without the possibility of parole.”

Kuenzel v. State, 577 So. 2d 474 (Ala. Crim. App. 1990).

Johnson v. State, 823 So. 2d 1 (Ala. Crim. App. 2001).

Ex Parte McNabb, 887 So. 2d 998 (Ala. 2004). “First, he argues that they "ran afoul of Ala.Code § 13A-5-46 as interpreted ... in Ex parte Bryant, [Ms.”

— Ala. Code § 13A-5-46(e)(1) — 6 cases

Ex Parte McGriff, 908 So. 2d 1024 (Ala. 2005). “exist," § 13A-5-46(e)(1). All of these considerations and potential issues militate in favor of a prospective direction by this Court that the count of the jurors' votes on the issue of the existence of an aggravating circumstance be expressly recorded on the verdict form.”

State v. Steele, 921 So. 2d 538 (Fla. 2006).

Miller v. State, 913 So. 2d 1148 (Ala. Crim. App. 2004).

Duke v. State, 889 So. 2d 1 (Ala. Crim. App. 2004).

Flowers v. Dunn (DEATH PENALTY) (M.D. Ala. 2021).

— Ala. Code § 13A-5-46(e)(2) — 8 cases

Ex parte State, 223 So. 3d 954 (Ala. Crim. App. 2016). “Section 13A-5-46(e) provides specific guidance to the jury in recommending a sentence.”

Oken v. State, 835 A.2d 1105 (Md. 2003).

Marshall v. State, 182 So. 3d 573 (Ala. Crim. App. 2014).

Brandon Washington v. State of Alabama., 106 So. 3d 423 (Ala. Crim. App. 2007).

— Ala. Code § 13A-5-46(e)(3) — 15 cases

Ex parte Bohannon, 222 So. 3d 525 (Ala. 2016).

Charles Gregory Clark v. Comm'r, Alabama Dep't of Corr., 988 F.3d 1326 (11th Cir. 2021).

Kuenzel v. State, 577 So. 2d 474 (Ala. Crim. App. 1990).

Haney v. State, 603 So. 2d 368 (Ala. Crim. App. 1991).

— Ala. Code § 13A-5-46(e)(l) — 2 cases

Ex parte State, 223 So. 3d 954 (Ala. Crim. App. 2016). “Section 13A-5-46(e) provides specific guidance to the jury in recommending a sentence.”

Duke v. State, 889 So. 2d 1 (Ala. Crim. App. 2002).

— Ala. Code § 13A-5-46(f) — 52 cases

Daniel v. Comm'r, Alabama Dep't of Corr., 822 F.3d 1248 (11th Cir. 2016). “20 Ala.Code § 13A-5-46(f). Fourth, while we recognize that trial counsel elicited some mitigation evidence of Mr.”

Wood v. Allen, 542 F.3d 1281 (11th Cir. 2008).

Borden v. Allen, 646 F.3d 785 (11th Cir. 2011). “Ala.Code § 13A-5-46. A jury recommendation of a sentence of death must be based on the vote of at least ten of the twelve jurors, while a jury recommendation of a sentence of life without parole requires a vote of a majority of the jurors.”

Johnson v. State, 120 So. 3d 1130 (Ala. Crim. App. 2009). “Each part of the sentencing process is equally mandated by the statute (§§ 13A-5-46, -47(e)); and the errorless application by the court of its part does not cure the erroneous application by the jury of its part.”

Maples v. Thomas, 132 S. Ct. 912 (2012).

— Ala. Code § 13A-5-46(g) — 12 cases

People v. Dung Dinh Anh Trinh, 326 P.3d 939 (Cal. 2014).

Doster v. State, 72 So. 3d 50 (Ala. Crim. App. 2010).

Woodward v. State, 123 So. 3d 989 (Ala. Crim. App. 2011).

Spencer v. State, 58 So. 3d 215 (Ala. Crim. App. 2009).

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