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August 27, 2023

Detailing challenges after Florida's move away from requiring capital jury unanimity

The Tampa Bay Times has this extended article about the legal uncertainties and other challenges in Florida in the wake of the state's recent reform to its capital punishment procedures.  The full headline of the piece provides a chaotic summary: "Florida death penalty changes causing ‘chaos,’ attorneys say: 'Undoubtedly, the new statute will plunge Florida’s death-penalty system into further instability and chaos,' one death penalty expert said." I recommend the full article, and here are a few excerpts:

A new state law lowering the number of jurors required to recommend death sentences has spurred a rash of litigation, triggered conflicting judicial rulings and infused an additional level of uncertainty in capital cases....

The law allows death sentences to be imposed based on the recommendations of eight of 12 jurors, an easier threshold than a previous requirement of unanimous jury recommendations.  The change — prompted by Parkland school shooter Nikolas Cruz receiving a life sentence after a jury did not unanimously recommend death — gave Florida the lowest death-penalty jury standard in the nation.

Allowing 8-4 recommendations is the latest in a series of changes in the capital-sentencing process since a 2016 U.S. Supreme Court decision in a case known as Hurst v. Florida.  The ruling found that the state’s death-penalty process was unconstitutional.

In October 2016, in the similarly named case of Hurst v. State, the Florida Supreme Court interpreted and applied the U.S. Supreme Court ruling and said unanimous jury recommendations were required.  The Legislature responded in 2017 by putting such a unanimous requirement in law.

Amid uncertainty over whether the unanimity requirement should be applied retroactively to older cases, justices ordered resentencing for about 150 Death Row inmates who were sentenced based on recommendations by non-unanimous juries.  Before 2016, inmates could be sent to Death Row based on majority — or 7-5 — jury recommendations.

About 90 resentencing proceedings were completed under the unanimity requirement before this year’s law went into effect.  More than three-fourths of those proceedings resulted in life sentences, with prosecutors often not asking for the death penalty in the resentencings.

When Gov. Ron DeSantis signed the 8-4 law this spring, nearly five-dozen Hurst resentencing cases were pending. That has led to disputes about which standard should apply....

The Legislature approved the change after an ideological shift in recent years on the Florida Supreme Court. Shortly after DeSantis took office in 2019, he appointed justices who established a conservative majority.  The court in 2020 reversed course on the death penalty and said unanimous jury recommendations were not necessary....

The change is affecting Death Row inmates preparing for resentencings because of the Hurst decision.  The unanimous standard was in place when the resentencings were ordered, leading their attorneys to argue it should continue to apply in the cases.

The new law also is having an impact on cases involving defendants accused of committing murders before DeSantis signed the law. Their attorneys also maintain the 8-4 threshold should not apply retroactively....

Judges — including in the same judicial circuit — are divided on the issue.  As circuit judges grapple with which standard should apply, a number of appeals have made it to the Florida Supreme Court.  But a “lead” case — if there will be one — has not emerged....

Melanie Kalmanson, an attorney who publishes the Tracking Florida’s Death Penalty blog, pointed to the state’s filings in the Gonzalez case to demonstrate what she called “widespread chaos” in the death-penalty system.  “There’s some indication that even the state is not sure how they want to address the litigation about the new statute,” she said.

August 27, 2023 at 05:04 AM | Permalink


I am assuming that the 8-4 law only applies to the recommendation of death not to the death eligibility determination.

While it's always possible that the new composition of the Supreme Court could reach a different opinion than was reached on the last round of these cases, the last round of these cases (Hurst and Carr) drew a sharp line between death eligibility (on which State has burden of proof beyond a reasonable doubt and a unanimous jury is required) and the actual sentencing decision (on which no jury is required and burden can be on defendant to show that mercy is required). U.S. Supreme Court has denied certiorari on multiple cases seeking to challenge state laws that permit judge sentencing if jury deadlocks on recommendation or permitting a judge to impose death even if jury recommends life.

It seems like the "chaos" is about whether the change is procedural or substantive. Obviously, whenever there is a statutory change, you have a debate about what the new law means (and for significant "procedural" changes arguments that it is really substantive). Whether resolved by Florida Supreme Court or U.S. Supreme Court, this issue will pass and the chaos will die down.

My hunch is that the new law will pass muster and will be viewed as procedural, but judges can occasionally do the unexpected.

Posted by: tmm | Aug 28, 2023 11:02:41 AM

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