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Supreme Court decision likely to lead to fewer death penalty verdicts, experts say

Published Jan. 14, 2016

Home to the second-largest death row in the nation, Florida may be on a path to executing fewer prisoners as a result of a U.S. Supreme Court ruling Tuesday that requires juries, not judges, to impose the death penalty, experts said.

"Whatever the Legislature does" in response to the court's ruling, "there are bound to be some cases where a jury doesn't reach the same decision that a judge would have," said Ronald J. Tabak, chairman of the Death Penalty Committee of the American Bar Association. "And most likely, there will be fewer death sentences."

In the 8-1 opinion, the court overturned Florida's unusual capital sentencing system, finding it unconstitutional because juries play an advisory role in recommending life or death, and are not required to give a factual basis for their opinion. By law, judges make the ultimate decision after giving "great weight" to jurors' recommendations.

The court's ruling has thrown the state's death penalty process into chaos and tasked Florida lawmakers with rewriting the capital punishment scheme. In interviews on Wednesday, legal experts said that regardless of the precise language that emerges from Tallahassee, there's little doubt Florida will have to transfer power from judges to juries, shouldering ordinary citizens with a grave duty.

"That'll just up the degree to which the jurors will feel some sense of responsibility for their decision," said Mona Lynch, a criminology professor at the University of California at Irvine.

Lynch, who has studied how juries reach decisions in capital cases, said that in states like Florida and Alabama where juries give advisory verdicts, there tends to be a "diffusion of responsibility." Aware that a judge might override them, jurors often feel less pressure, making it easier for them to sentence the inmate in front of them to death.

"Right now, Florida juries can feel like, well, we're just making a recommendation," she said.

Florida is one of only three states — the others are Alabama and Delaware — where judges can override a jury, but that power is used sparingly.

It has been 17 years since a Florida judge intervened in a case to override a jury's recommendation. But between 1972 and 1999, judges reversed jurors' advisory verdicts of life 166 times in order to impose a death sentence, according to one study. At least two of the 390 inmates on the state's death row are there because judges overruled a jury that voted for life.

"The idea that somebody else may correct the sentence if you get it wrong — that does tend to lessen your sense of responsibility and it therefore makes you more likely to vote for death, even if you may not really be that convinced the person should get death," Tabak said. "That has been a problem with the Florida system all along."

A second factor, he said, is whether Florida's Legislature decides to require unanimous jury verdicts in capital cases.

Although the Supreme Court's opinion didn't address unanimity, Florida is the only state where a simple majority of jurors, by a 7-5 vote, can recommend the death penalty. Despite years of effort by some in the Legislature to change this, the practice has stood, and most people on death row today received non-unanimous jury recommendations.

"If they require unanimity, they're going to have fewer death sentences," said Michael Radelet, a University of Colorado professor and expert on the death penalty. "It'll be more focused on the worst of the worst."

Radelet, who has studied Florida's death penalty system, said the number of defendants sentenced to death has fallen gradually since the 1990s, a shift he attributed in part to the practice's declining popularity nationwide. If Florida's Legislature requires 12-0 jury verdicts for death penalty sentences, prosecutors, facing tougher odds and the high cost of pursuing the death penalty, might choose to file fewer capital cases, he said.

Some prosecutors have argued that imposing a unanimous verdict requirement would benefit some of the state's most notorious killers, such as Ted Bundy, who was executed in 1989 after a jury voted 10-2 to recommend death.

Harry Shorstein, former state attorney for the 4th Judicial Circuit, which includes Jacksonville, said he doubted there would be a dropoff in death penalty cases.

"It's politically driven," he said. "Maybe in Miami and Broward, the more liberal circuits, they might reconsider. But the rest of them are going to seek it as long as they feel it helps them get elected."

Contact Anna M. Phillips at aphillips@tampabay.com or (813) 226-3354. Follow @annamphillips.

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