When the Florida Senate Criminal Justice Committee convenes a workshop today, legislators will have their first chance to find a fix for the state's unconstitutional sentencing process in death penalty cases.
On the opening day of this year's legislative session, the U.S. Supreme Court ruled that Florida's system violates the Sixth Amendment because it allows judges, not juries, final say in capital sentencing. If history is a guide, the Legislature may take a minimalist approach — a tack generally favored by prosecutors and Florida's attorney general. But that path could risk further constitutional attack. If Florida is going to impose a death penalty, it would make sense for the Legislature to require a unanimous jury decision rather than to tinker around the edges of the problem.
Writing for the majority in the 8-1 Hurst vs. Florida decision, Justice Sonia Sotomayor underscored that even though Florida's unusual process required judges to place great weight on juries' recommendations, that wasn't enough to pass constitutional muster — especially since judges could override them.
Specifically, the nation's high court ruled that Ring vs. Arizona, decided 14 years ago, says that the Sixth Amendment requires juries, not judges, to determine whether a sufficient number of aggravating factors are present in a capital case to impose a death sentence.
In 2005 in State vs. Steele, the Florida Supreme Court did not apply the Ring standard to give jurors final say but did urge the Legislature to require unanimous juries to recommend death sentences. The trial judge in Steele had ordered the jury to use special verdict forms to make specific findings regarding the presence of aggravating factors; however, Florida's high court opined that "the court's order imposes a substantive burden on the state not found in the statute and not constitutionally required."
Simply put, Florida is an outlier. It is the only state among 31 remaining death penalty states that required unanimous verdicts only to convict, but not when considering either aggravating factors or whether the sentence should be death. In those instances a mere 7-5 vote suffices in Florida.
Before Hurst, jurors in the penalty phase considered an arguably unwieldy number of aggravators enumerated in Florida law but didn't have to specify them. Hypothetically, seven jurors could find different aggravators and five find none, which in practical terms was sufficient to recommend death even if no one agreed on a specific aggravator.
In 2006, the American Bar Association released a report that identified issues raised in Ring and Steele as areas of critical concern along with a range of other significant process issues involving the fairness, accuracy and impartiality of Florida's death penalty process. But it took no position on capital punishment.
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In 2013, the Florida Bar Board of Governors adopted a position in support of state officials conducting a comprehensive review of Florida's entire death penalty process by all branches of government, which the Bar reaffirmed last year; we initially proposed that position in 2011. Essentially, no such review has been conducted in Florida. Like the ABA report, the Florida Bar's position focused on process issues, not on capital punishment per se.
Research by Scott Sundby from the University of Miami School of Law indicates if unanimity is required, that brings more rigor to deliberations, which changes their nature. He also found that when nine or more jurors favor a death sentence, the likelihood of achieving unanimity is greater if a jury is so charged.
The ABA passed a resolution last year urging all states to require unanimity for these purposes.
While Hurst doesn't specifically address unanimity, a logical place for the Legislature to begin is a bill we helped shape that would require unanimity and the use of special verdict forms for specific findings of aggravators and recommendations of death. Sen. Thad Altman, a Viera Republican, has filed this bill repeatedly over the past several sessions. It can be readily modified to address Hurst.
On Tuesday, Florida's high court will hear oral arguments regarding how broadly Hurst should apply to Florida's death row population of nearly 400. The context is a case in which Gov. Rick Scott signed a death warrant and a Feb. 11 execution date is pending.
The state will likely argue for limited application. Others will assert Hurst should be applied broadly given that Florida's sentencing scheme was declared unconstitutional.
No matter how anybody feels about capital punishment, justice would be well served if the Legislature were to require unanimous penalty phase juries and agree to the Florida Bar's call for a comprehensive review when addressing the constitutional defects specifically raised by the U.S. Supreme Court in Hurst.
Raoul Cantero, a former state Supreme Court justice appointed by Gov. Jeb Bush, wrote the majority opinion in the 2005 Steele case. He now practices law in Miami. Mark Schlakman is senior program director for Florida State University's Center for the Advancement of Human Rights, and served on the ABA's Florida Death Penalty Assessment Team.