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May 7, 2016

An astute accounting of one view on how the post-Hurst hydra in Florida ought to be slayed

Regular readers know that, after the US Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe the multi-headed, snake-like capital litigation sure to develop as judges tried to make sense of what Hurst must mean for past, present and future cases.  Of particular significance in Florida, which has second largest death row in the nation and holds roughly one of every seven condemed murderers in the US, is what will become of all those sentenced to death before Hurst.

As noted in this post a few days ago, the Florida Supreme Court took up this question this past week, and some prominent Floridians argued that all those previously sentenced to death should have their sentences changed to life without parole.  But, with this is sure to be a popular view among death penalty abolitionists, death penalty supporters are not likely to readily embrace this solution.  And, very helpfully, Kent Scheidegger at Crime & Consequences has this lengthy and thorough post providing an astute review of what existing Supreme Court retroactivity jurisprudence should mean. The post is titled "What Happens to the Florida Death Row Cases After Hurst?", and here is how it starts and ends:

In January, the U.S. Supreme Court decided in Hurst v. Florida that the Florida capital sentencing system did not comply with a series of cases beginning with Apprendi v. New Jersey (2000). Yesterday, the Florida Supreme Court heard oral argument on remand in the Hurst case.  Several people have asked me what should/will happen to the cases of the murderers presently on death row in Florida. "Should" is easier to answer than "will":

1.  Cases final on direct appeal (i.e., those where the Florida Supreme Court has affirmed the judgment in the initial appeal and the U.S. Supreme Court has denied the petition to take the case up or the defendant did not file one) should not be affected by Hurst.

2.  Cases already tried and pending on appeal should be affirmed under the "harmless error" rule if it is clear beyond a reasonable doubt that the jury would have unanimously found at least one aggravating circumstance if they had been asked to do so.  For example, if the jury convicted the defendant of robbery and murder and there is no question in the case that the murder was committed in the course of the robbery (an aggravating circumstance), that would be harmless error.

3.  Cases where there is a Hurst error that does not meet the standard for harmless error should be retried as to penalty under the new statutory procedure....

The Florida Legislature acted swiftly after Hurst to enact a new procedure meeting the newly minted constitutional requirements.  Why? Because it considers enforcement of the death penalty important. Why, then, would the legislature want a whole class of sentences wiped out? It would not.  Attributing such an intended result makes no sense given the purpose of the law.

Finally, there is the matter of arbitrariness. Arbitrariness necessarily works both ways. Just as people should not arbitrarily be sentenced to punishment, neither should they arbitrarily be spared a punishment they deserve.  Arbitrary sparing of some is necessarily arbitrary infliction on those not spared.

The whole point of our complex jurisprudence of capital sentencing is to make the sentence fit what the murderer deserves.  Commuting a wide swath of sentences based on an accident of timing without any regard for just deserts is arbitrary.  Absent strong evidence the legislature intended this result, it should not be attributed to them.

The new act should apply to any cases remanded for resentencing.

May 7, 2016 at 02:17 PM | Permalink


Florida justice is unique. I would not in any way attempt to answer the post you are referring to, but I believe the longest serving death row inmate in Florida is Tommy Zeigler who has been on death row since 1978.

He was convicted at trial of the murder of his wife and her parents in the family owned furniture store. Tommy had been shot in the abdomen when his wife and her parents were murdered. The Jury recommended life without parole because they had questions about the case. It was difficult to decide and one juror was given Valium by the judge before she changed her verdict to guilty.

At sentencing, the Circuit Judge sentenced Tommy to death in spite of the jury's recommendation of life without parole. Prior to hearing Tommy's case, the Judge had testified in an earlier case involving the transfer of a liquor license from a black establishment. Tommy Zeigler - a white business man had testified for the opposing side. This was near Disney Land and the license was a valuable commodity. Prior to being a circuit judge - the judge had been an attorney who worked for the Florida Beverage Department.

I know that this is not very Lawyerly, but I have had an affinity for Schools of Journalism with innocence projects ever since Bill Moushey wrote the award winning ten part series "Win at all Cost" in the 90s

The Medill School of Journalism at Northwestern has just decided to investigate the Tommy Zeigler case.

Floridians for Alternatives to the Death Penalty https://www.fadp.org/zeigler-3/zeigler3/

Posted by: beth | May 7, 2016 4:41:01 PM

I agree with Kent Scheidegger's position.
However,during the oral argument,some of the FSC justices didn't buy the harmless error analysis suggested by the state. They said 5 votes for life imprisonment shows a lot of mitigation found by some members of the jury. If presented with the 2 aggravators, HAC and murder during robbery,I would think any jury would find those unanimously as Canady pointed out.

My question is why did the FSC and SCOTUS allow Florida to execute Jerry Correll and Oscar Bolin? Both executions were carried out between the date of oral argument and the hand down date. Obviously these are 2 cases that were not to be applied retroactive. So if the FSC applies it retroactive, I suppose they are telling Correll and Bolin and the 40 plus inmates executed since Ring that the "timing" gave them the needle, as Justice Breyer might

As for the above post on William Zeigler, I think jury override is next on the chopping block at SCOTUS. Most likely with an Alabama case. I doubt Zeigler will ever be executed.

Posted by: DaveP | May 8, 2016 12:40:02 PM

Not sure that jury override has four votes for cert currently. The U.S. Supreme Court has bypassed it several times.

To find that the jury override is improper, the Supreme Court would have to make two new rules of law -- 1) that a defendant has a constitutional right to have a jury recommend sentencing (at least in capital cases, although I am unable to find anything in the text in the Constitution that would permit a distinction between capital and non-capital cases); 2) that the jury recommendation creates a cap on the sentence (again, I do not see any basis in the Constitution to allow a judge to impose a lesser sentence but forbid the judge to impose a higher sentence).

Outside of the capital punishment context, there is not a history of requiring jury sentencing. Even in states that allow jury sentencing, there are multiple circumstances in which a defendant does not have a right to jury sentencing. While some of the states with jury sentencing in ordinary cases do treat the recommendation as a cap, not all do.

Posted by: tmm | May 10, 2016 10:25:16 AM

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