Florida death penalty requirement could soon be 8 out of 12 jury votes

The ability for a judge to override a jury’s recommendation for life and give death instead was removed from the final legislation.
A thunderstorm moves over Florida's Death Row at Union Correctional Institution in Raiford in 2018.
A thunderstorm moves over Florida's Death Row at Union Correctional Institution in Raiford in 2018. [ CHERIE DIEZ | Tampa Bay Times ]
Published March 30, 2023|Updated March 30, 2023

Florida’s threshold for the death penalty could soon be the lowest in the nation, with the Florida Senate on Thursday passing a priority bill of Gov. Ron DeSantis to require the vote of only eight jurors out of 12 in order to implement capital punishment.

Unlike the earliest provisions of the bill, the legislation passed by the Florida Senate does not allow a judge to override a jury’s recommendation for a life sentence and give death instead.

If a jury recommends a life sentence, a judge must impose it. If a jury recommends death, the judge can agree or can order a life sentence instead.

Currently, Florida law requires a unanimous jury in order to sentence someone to death. The unanimous requirement came under fire from DeSantis after the jury in the Parkland school shooting case voted 9-3 in favor of death, leaving the gunman who killed 17 with a life sentence.

“I think that the Parkland trial really exposed some of the problems with unanimity,” Sen. Blaise Ingoglia, R-Spring Hill, the bill’s sponsor, said.

Senators voted for the legislation 29-10. The vote did not fall along regular party lines. Democratic leader Lauren Book of Plantation, Sen. Jason Pizzo, D-Hollywood, and Sen. Linda Stewart, D-Orlando, voted for the legislation. Sen. Erin Grall, R-Lake Placid, and Sen. Ileana Garcia, R-Miami, voted against the bill.

But opponents of the bill have warned that Florida’s system has gotten it wrong before: Florida has the highest number of death row exonerations, with 30 people exonerated. In the majority of Florida cases where people have been exonerated, the jury had a nonunanimous decision, according to the Death Penalty Information Center.

Ingoglia has said he’s aware of Florida’s large number of exonerations but believes that advancements in DNA technology will mean there will be fewer cases in the future where people are wrongfully incarcerated.

If Florida moves to require only an 8-4 jury threshold, it would be one of only two states in the nation to not require a unanimous decision. Alabama has a 10-2 threshold.

Sen. Bobby Powell, D-West Palm Beach, filed an amendment to change the number of required jurors to 10 instead of eight, but the amendment failed. Ingoglia said he did believe there could be more than two “activist jurors” opposed to the death penalty, saying that was the “only answer” for why the Parkland gunman did not get the death penalty. Powell did not vote on the legislation.

Florida moved to require unanimity based on the Florida Supreme Court’s interpretation of a 2016 U.S. Supreme Court case, which deemed in Florida that judges had too much power compared to juries when implementing the death penalty.

The Florida Supreme Court initially determined the court ruling meant unanimity was required. But in 2020, they reversed their ruling and said only an aggravating factor needs to be decided unanimously. Aggravating factors have to do with facts of a person’s crime or their victim affected, and include things like killing someone under 12 or causing risk of death to many people.

The reversal left the door open for the Legislature to redo the statute, but leaders at the time declined to do so.

Maria DeLiberato, the executive director of Floridians For Alternatives to the Death Penalty and a longtime capital defense attorney, said she believes the legislation passed by the Senate is still too similar to the sentencing scheme struck down by the U.S. Supreme Court, and is at risk of being deemed unconstitutional.

The bill in the House, HB 555, still has one final committee stop, set for Friday, before it moves to the floor for a vote.

Another law moving through Florida’s Legislature would challenge existing U.S. Supreme Court precedent by pushing for the death penalty for people who sexually batter children under 12. That bill has bipartisan support and unanimously passed through its first Senate stop.

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