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January 31, 2016

Notable analysis of many capital defendants in Florida condemned to death by split juries

The Tampa Bay Times has this new detailed analysis of the history and impact of the Sunshine State's willingness to send persons to death row based on split jury recommendations.  The article is headlined "Only in Florida: How the nation’s lowest bar for the death penalty has shaped death row," and here is how it gets started:

Florida has more than 170 people on death row today who may not have been condemned to die in any other state — the result of its one-of-a-kind law that allows a jury to recommend capital punishment by a simple majority vote, a Tampa Bay Times analysis has found.

Unburdened by the need to reach a unanimous decision, Florida juries typically don’t.  Two-thirds of the people Florida has executed since 1995 were condemned to die on the recommendation of fewer than 12 jurors, the Times analysis found.

No other state allows juries to recommend death by a 7-5 vote.  Of the 32 states that have the death penalty, 29 require a unanimous vote of 12.  Alabama requires 10.  Delaware calls for jurors to unanimously agree on whether the defendant is eligible for the death penalty, but their sentencing recommendation can be split.

This month, the U.S. Supreme Court struck down Florida’s death penalty statute, forcing the Legislature to rewrite it. Although the court did not explicitly address the issue of non-unanimous jury votes, legal experts say this part of Florida’s law is in constitutional jeopardy.

The Times reviewed more than 450 death penalty cases dating back decades to determine how juries voted in the penalty phase of capital trials.  The juries’ sentencing recommendations are merely advisory, another unusual feature, but no Florida judge has ignored a jury’s guidance in nearly two decades.

The Times found that prisoners who were sentenced to death based on non-unanimous jury recommendations were far more likely to have their cases overturned on direct appeal, or to be ultimately acquitted.

Florida leads the nation in death row exonerations.  Of the 20 people who have been exonerated and for whom sentencing information is available, 15 were sent to death row by a divided jury.  Three others were cases in which judges imposed the death penalty over a jury’s recommendation of life in prison.

January 31, 2016 at 12:08 PM | Permalink


very interesting research. What it reveals, in my opinion, is that no matter how warranted a death sentence may appear to be in a particular case, the truth is that the criminal justice system, like all government, is a human enterprise, which brings with it an infinite number of perspectives, some legitimate, some arbitrary, some self-serving. To think that a piece of legislation can create a system to overcome those obstacles and produce a result reliable enough that a person should live or die, is naive.

Thanks for the article.


Posted by: bruce cunningham | Jan 31, 2016 9:19:06 PM

Some parts of the article state the obvious. If you allow a jury to resolve a case by a 7-5 vote, you will get less deliberation than if you require a 10-2 vote or a unanimous vote. Similarly, the evidence that produces a 7-5 vote is less likely to be overwhelming than the evidence that produces a 10-2 vote, making it more likely that any error will be reversible error.

While the Supreme Court has been -- in cases like Apprendi, Ring, Blakely, and Hurst -- emphasizing the right to a jury trial, there has been no suggestion in these cases that the Supreme Court is reconsidering the earlier case law finding that the right to a jury trial did not include the right to a unanimous jury. I am sure that unnamed legal experts are willing to speculate on what the Supreme Court might do if faced with the issue, but so far the Supreme Court has declined to take the issue and the article does not reveal why those experts feel the way that they do (other than their own opinions of the right result on this issue).

Posted by: tmm | Feb 1, 2016 10:24:03 AM

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