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Top Florida lawmakers say they won’t change death penalty law, but ‘chaos’ remains

But more than 150 cases have been thrown into limbo by the Florida Supreme Court’s decision that unanimous juries are not required to sentence someone to death.
Archive photo of death row at Florida State Prison and Union Correctional Institution. [Associated Press]
Archive photo of death row at Florida State Prison and Union Correctional Institution. [Associated Press]
Published Jan. 30, 2020|Updated Jan. 31, 2020

TALLAHASSEE — Top Republican lawmakers in the Florida Senate said that a unanimous jury should remain a requirement to sentence someone to death, despite a major ruling last week by the Florida Supreme Court that said it was not mandatory under the U.S. Constitution.

“I don’t think we’re going to take any steps in the Florida Senate to change or address that,” Senate President Bill Galvano, R-Bradenton, said Wednesday afternoon.

The senator who has led state policy on the death penalty in the past, Sen. Rob Bradley, R-Fleming Island, agreed.

“Death is different. It’s an appropriate standard and it puts us in line with the norms of today,” he said. “Florida is not an outlier anymore, so it’s appropriate where we are.”

RELATED: Florida Supreme Court says unanimous jury not needed for death penalty in major reversal

The Florida Supreme Court’s ruling did not affect current state law, which requires a unanimous jury to sentence someone to death. Every state in the U.S. that has the death penalty, except Alabama, has that same standard.

But last week’s ruling opened the door for the Legislature to change the law, if it wished.

The ruling represented a major reversal of a 2016 ruling by the same Florida Supreme Court, albeit with several different — and more liberal — justices. Back then, the court ruled that Florida’s death penalty law, which at the time did not require a unanimous jury and allowed the judge to make the final determination on death, was unconstitutional. The Legislature then changed state law as a result.

Last week’s decision, however, says the previous court “got it wrong," and that a unanimous jury is only necessary to determine if a defendant should be eligible for the death penalty. To be eligible, a jury must unanimously find so-called “aggravating factors,” such as if the crime was “especially heinous, atrocious, or cruel” or committed against a child under 12.

“It is no small matter for one Court to conclude that a predecessor Court has clearly erred,” the majority opinion of four justices stated. But, “in this case we cannot escape the conclusion.”

Although no leaders in the Florida House have called for state law to be changed back in the wake of the decision, they have not strongly ruled it out.

Asked for a response to last week’s overturn, House Speaker José Oliva, R-Miami Lakes, only noted in a statement that the ruling did not change current law. And Rep. Chris Sprowls, R-Palm Harbor, who’s next in line to be speaker for the 2021 session, would only say that lawmakers will “consider” what to do next.

Gov. Ron DeSantis has not weighed in or responded to three Times/Herald requests to his office for comment since the ruling.

Regardless of state leader’s next steps, though, last week’s decision throws more than 150 death row cases into a tailspin, said Marty McClain, a Broward-based attorney who’s represented many defendants in death penalty cases.

“What the Supreme Court did is create chaos,” he said.

After the 2016 decision, many previous death row cases where the sentence had been decided by a non-unanimous jury were eligible for re-sentencing, as long as that had happened after 2002 (because of a different court decision that happened that year). Some of those cases have had their sentences changed to life in prison, while many others were still moving through that long process.

Aftershocks are being felt throughout the state. The same day as the Florida Supreme Court’s ruling, Polk County prosecutors filed a motion indicating the new ruling will be incorporated into the re-trial of a death penalty case, and they’re expected to ask for a reinstatement of the death penalty soon. The defendant, Micah Louis Nelson, has been convicted of first degree murder and sexual battery, among other charges, but had been up for re-sentencing following the 2016 decision because three jurors had voted against sentencing him to death.

McClain said the reversal threatens to make the death penalty, the government’s ultimate punishment, feel “arbitrary” based simply on the timing of one’s case.

“We have all these categories we can come up with: people whose death sentences were final before 2002, those afterwards, those after the new statutes were in effect ... and I can come up with an argument on each one as to why the death penalty has problems,” he said. “It’s going to take years for this to be resolved.”

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