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Supreme Court ruling looms over Florida's death penalty system

TALLAHASSEE — Florida's Legislature again finds itself under the watchful eye of the courts, and this time it's literally a matter of life and death.

Having endured withering criticism from state courts for a botched redrawing of political boundaries, lawmakers now await a verdict from the U.S. Supreme Court over the state's death penalty, which is facing its most significant legal challenge.

Florida is the only state in which a jury can recommend a death sentence by a bare majority of seven of 12 jurors without also having to unanimously agree on aggravating circumstances to justify the ultimate punishment. A jury's decision is advisory, but judges usually give it great weight.

That's what happened in the case of Timothy Lee Hurst, who was convicted in the 1998 killing of a fast-food worker during a robbery of a fried chicken restaurant in Pensacola. The jury recommended death on a 7-5 vote.

Hurst's lawyers, backed by the American Bar Association and three former Florida Supreme Court justices, have challenged the Florida system as unconstitutional. The U.S. Supreme Court heard arguments in October, and is expected to rule sometime early next year, possibly while the Legislature is in session.

The high court review comes as Gov. Rick Scott is accelerating the pace of executions, with two scheduled in the next eight weeks at the Florida State Prison in Starke.

The October execution of Jerry Correll, who stabbed four family members to death in 1985, was the 22nd execution since Scott took office in 2011, the most by a governor since Florida reinstated capital punishment in 1976.

As horrific as Correll's crimes were, the Orlando jury that convicted him was not unanimous in its support of a death sentence in any of the killings. Three of 12 jurors opposed the death penalty on one count, and two jurors did on the other three.

For two decades, legislators in both parties have tried and failed to change state law to require a unanimous jury recommendation of death.

The idea is being resurrected for the 2016 session, but lawmakers remain divided over what course of action to take.

"I think the Supreme Court is going to find problems with our death penalty procedures," predicted Sen. Thad Altman, R-Rockledge, who is sponsor of the bill (SB 330) and opposes capital punishment.

Altman's bill and its House counterpart would require juries to make unanimous findings in writing that aggravating circumstances — such as the defendant's criminal record and the nature of the crime — outweigh mitigating circumstances, such as the defendant's mental state.

The House version (HB 157) is sponsored by Rep. Jose Javier Rodriguez, D-Miami, who argued that even ardent death penalty supporters should support the idea, to remove any ambiguity about its constitutionality.

"This is just good governance," Rodriguez said. "It seems highly irresponsible not to go ahead and fix it."

But neither bill has been heard in the Senate or House.

Florida prosecutors, who have political clout in the Capitol on death penalty issues, oppose the changes, and the chairman of a key House committee says the bill will languish until justices decide the Hurst case.

"It's currently before the U.S. Supreme Court, so I don't think there's any urgency to act," said Rep. Carlos Trujillo, a Miami Republican and chairman of the House Criminal Justice Subcommittee, where Rodriguez's bill awaits a vote.

Trujillo noted that a jury's recommendation of death is not binding on the trial judge, who can reject a jury's recommendation.

"I think the current system works well," Trujillo said.

If the U.S. Supreme Court rules in Hurst's favor, it could unleash a torrent of legal challenges by death row inmates whose juries did not unanimously recommend an execution.

Florida has had 25 death sentences reversed by the courts, the most of any state, according to the Death Penalty Information Center. There are 393 inmates on Florida's death row.

Former Florida Supreme Court Justice Raoul Cantero Jr. has repeatedly called for the Legislature to change the law.

"Maintaining the status quo," Cantero wrote in the Miami Herald in 2012, "does not serve the cause of justice."

The state's death penalty system has repeatedly survived legal challenges, but Cantero, who was appointed to the court by former Gov. Jeb Bush, has been sounding alarms for a long time.

It has been a decade since the Florida Supreme Court, in a 2005 opinion written by Cantero in State vs. Steele, urged the Legislature to require unanimous findings of aggravating factors and "to require some unanimity in the jury's recommendations."

Sen. Rob Bradley, R-Fleming Island, a former prosecutor, supported Altman's bill last year and said that he'll do so again, and that it's a matter of time before the courts demand a unanimous vote by jurors in death cases.

"There's nothing more serious or sacred than government taking the life of an individual," Bradley said. "The law is ultimately going to demand it, and the courts are ultimately going to demand it."

Contact Steve Bousquet at [email protected] or (850) 224-7263. Follow @stevebousquet.

Divided on life

and death

Over a 12-year period through 2012, a Florida Supreme Court review of 296 sentences found that juries were unanimous in support of death sentences just 20 percent of the time.

Jury vote Total Percent

7-5 32 11%

8-4 42 14%

9-3 66 22%

10-2 54 18%

11-1 42 14%

12-0 60 20%

Source: Florida Senate

Supreme Court ruling looms over Florida's death penalty system 12/05/15 [Last modified: Sunday, December 6, 2015 11:11pm]
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