Tuesday, January 16, 2018
Politics

Is it reckoning day for Florida's death penalty?

TALLAHASSEE — The Florida Supreme Court's decision last week to require unanimous jury votes for executions has thrown the state's death penalty into disarray.

In a Friday ruling in Hurst vs. Florida, the justices eliminated part of Florida's death sentencing laws, but lawyers and legislators disagree about what comes next.

Some say it could throw out the sentences for nearly 400 murderers awaiting execution at Florida State Prison and cripple the state's death penalty long-term. Others say the only thing that's changed is that a jury must now vote unanimously in favor of the death penalty.

What's clear is this: Even with the case decided, Florida's legal fights over capital punishment are far from over.

Death row defense lawyers say the Hurst decision leaves Florida without a functioning death penalty until the state Legislature can convene and rewrite the law.

"This is so big," said Martin McClain, a Broward County lawyer who represents death row inmates appealing their sentences. "I don't know of a way to overstate the significance."

But legislative leaders say that is not necessary.

"With Friday's ruling, imposing the death sentence will require a unanimous verdict with or without legislative action," said Katie Betta, a spokeswoman for Senate President-designate Joe Negron, R-Stuart. "In the past, the Senate has been supportive of the unanimous verdict requirement."

Buddy Jacobs, general counsel for the Florida Prosecuting Attorneys Association, which represents the 20 state attorneys, agrees that no legislative action is necessary.

"The death penalty is certainly still legal in Florida," he said. "The procedure is what the Supreme Court reacted to."

The court's ruling has raised other questions about how the state should handle the 386 inmates on death row under old sentencing rules that have since been thrown out. The Supreme Court has not indicated which inmates could be eligible to have their sentences changed.

Even the most experienced death row defense lawyers don't know what to expect. McClain said he thinks the court will issue a ruling about which cases are going to be treated like that.

"Until we have that sort of broad picture," McClain said, "we're kind of stuck waiting."

Some death row inmates — including Timothy Lee Hurst, convicted of killing a co-worker in Pensacola in 1998 — will have new sentencing hearings. The court will bring in a new jury to hear evidence and decide whether Hurst should be executed or sentenced to life in prison.

But not all death penalty cases are the same. So it's possible the court could decide that certain kinds of cases are eligible for a resentencing and others are not.

For example, the court could throw out sentences from time periods when the death penalty laws were overturned as unconstitutional, or they could only allow a new jury for death row inmates who raised certain complaints in their appeals.

But Maria DeLiberato, a defense lawyer with the Capital Collateral Regional Counsel in Tampa, warns that could be seen as an "arbitrary and capricious" enforcement of the law and raise new allegations that Florida's death sentences flout the U.S. Constitution's ban on cruel and unusual punishment.

She's hopeful that the court would allow all inmates a new sentencing hearing, not just some of them.

The state attorneys worry about the high costs of a small wave of resentencing hearings, let alone 386 cases.

"We do not have the manpower to do that," said Jacobs. "We'd have to get assistance to do that from the Legislature."

With so much uncertainty, Florida Attorney General Pam Bondi has yet to publicly respond.

Asked Monday how Bondi believed the courts should handle the 386 cases in limbo, her spokesman Whitney Ray said, "We are still reviewing the ruling and considering a rehearing."

Contact Michael Auslen at [email protected] Follow @MichaelAuslen.

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