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October 14, 2016

In twin post-Hurst rulings, the Florida Supreme Court concludes capital sentencing requires jury unanimity

I was not planning to blog anymore today as I continued participating in this terrific symposium. But big death penalty rulings by the Florida Supreme Court changed my plans. This local report, headlined "Florida Supreme Court rules death penalty juries must be unanimous," provides the basics:

"We conclude that the Sixth Amendment right to a trial by jury mandates that under Florida's capital sentencing scheme, the jury — not the judge — must be the finder of every fact, and thus every element, necessary for the imposition of the death penalty," the court wrote in a 5-2 ruling, with Justices Charles Canady and Ricky Polston dissenting.

Their ruling comes just months after the U.S. Supreme Court found Florida's death penalty law unconstitutional because juries played only an advisory role in recommending life or death. The court said in that case, known as Hurst vs. Florida, Florida's system was a violation of a defendant's right to a jury trial.

Florida lawmakers responded by rewriting the state law, requiring a 10-2 vote of a jury to send someone to death. The new law also requires juries to unanimously determine "the existence of at least one aggravating factor" before defendants can be eligible for death sentences.

In a separate ruling in the case of Perry vs. Florida, also issued Friday, the Florida Supreme Court found the new statute cannot apply to cases still pending in which prosecutors are seeking the death penalty. That leaves the state legislature with the task of having to again rewrite the statute to comply with the court's ruling. It is unclear how soon that might happen or whether prosecutors could then continue to seek the death penalty in pending cases....

The court's opinions did not address the issue of whether their findings would apply retroactively. Florida has 385 inmates on death row. It was not clear how many prisoners will be entitled to new sentencing hearings. The retroactivity issue will likely be decided by two other cases — Lambrix vs. Florida and Asay vs. Florida — still pending before the state Supreme Court.

Attorney General Pam Bondi's office has said that as many as 43 death row inmates could get life sentences without parole or new sentencing hearings as a result of the Hurst decision. Those 43 inmates are those who are entitled to automatic post-Hurst reviews of their cases under the state Constitution. Of those cases currently before the court, Bondi's office argued, death sentences should be carried out.

Howard Simon of the ACLU of Florida, which intervened in the case, said he was not surprised by the court's decision: "This is what we have been warning the Legislature about for years. The Legislature can complain all they want about the court's running the government, but when the Legislature ignores the warnings from the court, they should not be surprised by this ruling."

He said that it is not clear if every inmate on death row will be entitled to a new sentencing trial. "Now I think it's a moral issue,'' he said. "If someone was sentenced to death by less than an unanimous it is unconscionable to put them to death now without a unanimous verdict."

I fear I will not get a chance to read these opinions in full until well into the weekend, but here are links to the full opinions. I would be grateful to hear from readers about what they consider especially important aspects of these rulings:

Hurst vs. Florida, No. SC12-1974 (Fla. Oct. 14, 2016) (available here)

Perry vs. Florida, No. SC16-547 (Fla. Oct. 14, 2016) (available here)

October 14, 2016 at 01:28 PM | Permalink


Putting aside my belief that these opinions misread the U.S. Supreme Court decision on this issue, these decisions and the contrary decision in Alabama along with claims percolating in other states seems to frame an issue that needs to be clarified by the Supreme Court.

For the death penalty, many jurisdictions have a multi-step process. First, the jury must determine whether the defendant is guilty of the highest degree of murder in a guilt phase. Second, after a penalty phase (or partial penalty phase in some states that have more than two stages), the jury decides if the State has proven a "statutory aggravating" circumstance. Third, the jury then decides if the weight of the evidence in aggravation when compared to the evidence in mitigation merits the death penalty. (In some states, this involves to separate decisions -- first looking at the evidence in aggravation to see if it is enough and then seeing if the evidence in mitigation outweighs the evidence in aggravation.) Finally, the jury decides whether to impose the death penalty.

Under the Apprendi line of cases, it is clear that the defendant has a right to a jury finding for the first stage -- guilt determination -- and the second stage -- existence of statutory aggravating circumstances as both findings involve "facts" that are element like in terms of eligibility for the death penalty. On the other hand, the final decision is not one that has to be made by the jury. It is the "weighing" finding that is ambiguous. It is possible to read the third stage as an element that needs to be found before the jury can recommend death. The two Florida decisions and some other cases around the county do treat this stage as a necessary finding for the imposition of the death penalty. Yet there are other Supreme Court decisions (and state court decisions) that can be read as suggesting that this third weighing stage should not be treated as an element. (Using the Carr terminology, the second decision is an eligibility issue, and the third and fourth decisions are selection issues.)

So far, the jury role in the "weighing" process has mostly been discussed as a tangential issue in several cases. Both Ring and Hurst at the U.S. Supreme Court involved the failure to require a jury to find a statutory aggravating circumstances. While not necessarily dicta, the nature of the weighing phase comes up as part of the explanation for the holding in the case (but is not the holding) in some cases involving jury instructions on weighing.

So far, the Supreme Court has managed to punt whether the "weighing" decision has to be made by the jury. The weighing process is, at least, implicitly required by the Furman-Gregg line of cases suggesting that: 1) some structure must be put in place; and 2) the sentence must consider and give effect to the mitigating evidence. Maybe the various different responses by the three states that have "advisory" juries will lead the Supreme Court to finally address this issue.

Posted by: tmm | Oct 14, 2016 2:23:24 PM

There are three states affected by Hurst. Florida and Delaware have gone in one direction, Alabama has gone in the other. While I do think the majority of states is correct, I don't know if you can keep one state as an outlier. It makes sense to resolve this ambiguity finally.

Posted by: Erik M | Oct 14, 2016 7:01:52 PM

The Delaware and Florida Supreme courts took a different approach than the Alabama Court of Criminal Appeals in their decisions on 6/17.
However, the Alabama court hasn't ruled on the cases SCOTUS sent back for consideration of Hurst.

Posted by: DaveP | Oct 14, 2016 7:34:55 PM

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