Is Ohio's capital sentencing scheme, which permits telling the jury that their decision is only a mere recommendation, unconstitutional under Hurst v. Florida?

QUESTION PRESENTED The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose death, meaning a mere recommendation as to sentence is not enough. Hurst v. Florida, 577 U.S. 92, 1386S. Ct. 616, 193 L.Ed.2d 504 (2016). Because the jury’s role in capital cases is so important, the law requires that the trial court not diminish the jury’s sense of responsibility in making such an awesome decision. Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Starting with voir dire in Duane Short’s capital trial, the jurors were told that the sentence they were determining was only a recommendation. Tr. 357-58, 375-76. This error extends beyond Caldwell as both Ohio and federal courts have since continued to evolve their jurisprudence to align with the evolving standards of decency required by the Constitution. The evolving standards of decency required by the Eighth Amendment are in line with a reading of Hurst and Caldwell together to conclude that the practice of using language to diminish the seriousness of the jury’s verdict, by reminding them that their verdict is only a recommendation, is unconstitutional. This Court should accept jurisdiction in this case and answer the following question: Is Ohio’s capital sentencing scheme, which permits telling the jury that their decision is only a mere recommendation, unconstitutional under Hurst v. Florida? i