Advocates urge Florida Legislature to take up death penalty sentencing reforms
On Tuesday, the U.S. Supreme Court is scheduled to hear arguments in a lawsuit challenging the legality of Florida's death penalty sentencing procedures -- a case that could have far-reaching repercussions on past and present death penalty cases in the state, some fear.
A group of criminal justice advocates say the Florida Legislature could avoid such a chaotic outcome by simply updating state law to conform with the constitutional standard set by a prior U.S. Supreme Court opinion, one that most every other state follows.
At issue is the jury's role in determining whether a defendant should receive the death penalty. The Supreme Court previously ruled that it's the jury's responsibility, not a judge's, to decide that and that a jury must recommend that outcome unanimously on each count.
While almost every other death-penalty state changed its laws in the wake of that 2002 decision, Florida did not. Florida law allows for a death-penalty recommendation if only a simple majority of a jury -- seven of 12 jurors -- supports it.
State lawmakers have, for years, been trying to change the law to require a unanimous jury recommendation, but they've been unsuccessful. Some legal experts fear the 2016 session is the legislature's last chance to make changes before the Supreme Court takes hold of the situation.
"It’s much more palatable to citizens to the state of Florida that their legislators address this problem rather than the court impose solutions on Florida that you may not want," said Oliver E. Diaz Jr., a retired justice with the Mississippi Supreme Court.
Diaz, other legal experts and Florida legislative aides spoke to Florida media in a conference call Thursday arranged by the American Civil Liberties Union of Florida.
Sarah Turberville, senior counsel for The Constitution Project in Washington, D.C., said a Supreme Court ruling against Florida's law "could throw existing Florida death-sentencing cases into chaos."
"It’s sort of clear that because the court has (agreed to hear) the case, it's likely some sort of decision that would require a change in Florida law is in the offing," she said.
State Rep. Jose Javier Rodriguez, D-Miami, and Sen. Thad Altman, R-Rockledge, have introduced legislation for the 2016 session that would require unanimous recommendations from juries in death penalty cases on each aggravating factor presented.
Last session, a Senate bill got a favorable vote in one committee, so there's some potential for movement again this year. In the House though, the odds are steep, because "this is an issue that leadership simply doesn't want to touch," said Chris Hudtwalcker, Rodriguez's legislative assistant.
Criminal justice advocates said it's difficult to assess exactly how many active death-penalty cases would be affected by a Supreme Court ruling, if it overturned Florida's law, and how past cases might be affected would also depend on what direction the Supreme Court gave. A ruling is expected in the spring.
One former state attorney in Florida said the state could save tremendous costs by adopting the unanimity standard, because the higher standard strengthens the government's case on appeal.
Harry Shorstein, former state attorney for the Fourth Judicial Circuit in northeast Florida, said the state leads the nation in death-penalty reversals largely because of non-unanimous verdicts and, he said, "Florida cannot continue to be an outlier" -- if only because of cost.
"This process is unbelievably expensive to the state," Shorstein said. "If we continue without change from the legislature, it does expose us to having to retry a great number of cases. It's just the prudent thing to do."