Florida Supreme Court becomes an outlier on the death penalty | Editorial
Reversing a ruling that required unanimous jury recommendations on death sentences is another backward step for the state’s high court.
This article represents the opinion of the Tampa Bay Times Editorial Board.

The Florida Supreme Court has taken another step backward with a ruling that could restore the state’s status as a national outlier on the death penalty. In a stunning move, the court reversed a previous decision that required unanimous jury recommendations in death penalty sentences. The ruling defies legal precedent and common sense, and legislators should be wary of taking this bait and making a similar mistake.

Florida law used to require only a majority of jurors in a capital case to recommend that a judge sentence a defendant to death. But the U.S. Supreme Court struck down that statute as unconstitutional in January 2016, ruling in Hurst v. Florida that a jury recommendation was inadequate, and that a jury -- not a judge -- must establish the facts to impose a death sentence.

Looking to apply the U.S. Supreme Court decision, the Florida Supreme Court ruled in October 2016 that juries must establish each “aggravating factor” in a capital case, and that trial courts could impose a death sentence only on the unanimous recommendation of a jury. In response, the Legislature amended the state’s capital sentencing laws in 2017 requiring jury unanimity.

But on Thursday, the Florida Supreme Court reversed course, saying the state’s high court erred in 2016 by misinterpreting the U.S. Supreme Court opinion. The current court held that the U.S. Supreme Court required unanimity only in the finding of aggravating factors that could result in a death sentence -- not on any jury recommendation for death itself.

This creative parsing is suspect. The U.S. Supreme Court didn’t narrowly address aggravating factors, but rather a "sentencing scheme” made unconstitutional because of the power it took from juries. And as the Florida Supreme Court noted in its ruling in 2016, all findings needed to convict a defendant and allow for the death penalty “are also elements that must be found unanimously by the jury.” A recommendation for death, the Florida high court noted, “is tantamount to the jury’s verdict in the sentencing phase of trial; and historically, and under explicit Florida law, jury verdicts are required to be unanimous.”

In a lone dissent from the Florida court’s reversal last week, Justice Jorge Labarga said the decision by the majority will return Florida to its status as “an absolute outlier." As Emily L. Mahoney of the Times/Herald Tallahassee bureau noted, federal law and every state that has the death penalty except Alabama require unanimous juries for death penalties. “Death is indeed different," Labarga wrote. “This court has taken a giant step backward and removed a significant safeguard for the just application of the death penalty in Florida.”

What does this mean for scores of death row cases that were made eligible for new sentences under the 2016 rulings? Are the courts prepared to strip prisoners of rights they were promised only a few years ago? And while this decision doesn’t change existing Florida law, which requires unanimous juries, will it open a window for lawmakers to reinstate a lower bar for meting out the ultimate penalty?

Coming in the wake of the court’s narrow reading of Amendment 4, which Floridians passed to restore felons’ voting rights, this case is the latest example of a court looking backward. Death indeed is different, and the Legislature must not forget that.

Editorials are the institutional voice of the Tampa Bay Times. The members of the Editorial Board are Times Chairman and CEO Paul Tash, Editor of Editorials Tim Nickens, and editorial writers Elizabeth Djinis, John Hill and Jim Verhulst. Follow @TBTimes_Opinion on Twitter for more opinion news