Florida could soon be the only state where a judge could override a jury’s recommendation for a life sentence and give the death penalty instead, under proposed legislation to recraft Florida’s capital punishment system.
In identical bills filed by Rep. Berny Jacques, R-Seminole, and Sen. Blaise Ingoglia, R-Spring Hill, the legislation proposes that “notwithstanding the recommendation of the jury,” the court can “enter a sentence of life imprisonment or death.”
The language is nearly identical to Florida’s previous statute, which allowed judicial override until 2016, when the Legislature reworked the statute following a U.S. Supreme Court ruling that said judges had too much power, instead of juries, when it came to the death penalty.
Along with opening the door for judicial override again, the bill proposes doing away with requiring unanimous jury verdicts for a death penalty sentence, lowering the threshold to an 8-4 majority.
Alabama, the only state that currently has a nonunanimous jury sentencing requirement, has a 10-2 threshold; it abolished its judicial override provision in 2017.
If the bill passes as-is, Florida would have “the most extreme death penalty statute in the country,” said Maria DeLiberato, executive director of Floridians For Alternatives to the Death Penalty and a longtime capital defense attorney.
Currently, Florida’s death penalty statute allows judges to override death sentences and give life terms, but does not let them override life sentences in favor of death.
Gov. Ron DeSantis has urged for changes to death penalty rules after the Parkland gunman, who killed 17 people in a school shooting, was given a life sentence despite prosecutors seeking the death penalty. DeSantis has said it was a miscarriage of justice and repeatedly said the system shouldn’t allow for “one person” to derail the process.
Three jurors in the Parkland case voted for a life sentence.
“As with all legislation that is currently working its way through the legislative process, it can take several iterations before it reaches the governor’s desk,” the governor’s spokesperson, Bryan Griffin, said in a statement. “Once passed and delivered to our office, the governor will consider the merits of the bill in final form and make a decision. He has been clear as to his proposal on the matter.”
Jacques, who is sponsoring the House version of the bill, said the proposed legislation gives room for a judge who finds something to be “so egregious” that they can rule for death instead. He said the court has the sentencing prerogative and the jury is a fact finder.
“We stand on very strong legal ground and there was a lot of research that went into this to make sure this was constitutional,” he said.
DeLiberato disagrees, saying the proposed legislation is a direct violation of what the U.S. Supreme Court ruled during the 2016 case.
Stephen Harper, founder of Florida International University’s Florida Center for Capital Representation, said some think the Supreme Court ruling means that all aspects of the death penalty process require a unanimous jury. That’s how Florida’s Supreme Court landed in 2016.
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But Harper said another camp thinks that the ruling means the jury only needs to be unanimous in deciding that there is an aggravating factor that warrants the death penalty. That’s how Florida’s Supreme Court landed in 2020, when it reversed its prior ruling and opened the door for lawmakers to undo the changes they’d made.
Harper said if Florida returned to judicial override, he believes a 1975 Florida Supreme Court case would apply, which said a judge may only override a jury’s verdict if facts are so “clear and convincing that virtually no reasonable person could differ.”
Florida is one of only four states that have ever allowed for a judge to override a life sentence and give a death penalty, along with Indiana, Delaware and Alabama. Indiana has not had the provision since 2002, and Delaware no longer has a death penalty.
Florida has seen 166 cases since 1972 where a judge sentenced someone to death after a jury recommended a sentence of life in prison, according to a 2011 Michigan State Law Review article.
The last time a Florida judge overrode a jury’s recommendation for a life sentence instead of death was in 1999, according to the article.
The last time the state executed someone who had a jury recommendation of life in prison was in 1995 when Bernard Bolender died by the electric chair. His jury had unanimously recommended life imprisonment.
There are some inmates facing death in Florida whose juries recommended they get a life sentence, including Tommy Zeigler, who still maintains his innocence and has pushed for DNA testing.
Michael Radelet, a former University of Florida professor who studied the death penalty, said cases where judges overrule juries and impose the death penalty are more likely to be vacated on appeal. He said that long appeal process adds to the time that all people sit on death row.
“In a very real way, putting more people on death row will reduce the number of executions,” Radelet said.