The U.S. Supreme Court ruling last month invalidating Florida's death penalty sentencing system gives the state an opportunity to end this outdated, arbitrary and ineffective punishment. But this is Florida, and lawmakers are tinkering with the death penalty instead of abolishing it. They at least have an obligation to ensure that any fix for death penalty sentencing clears the minimum constitutional hurdles.
The court found Florida's death penalty sentencing process was unconstitutional because it vests final authority in a judge rather than a jury. Under state law, judges give "great weight" to a jury's recommendation in a death penalty case. But the trial judge ultimately decides. In its 8-1 opinion, the court cited a 2002 case, Ring vs. Arizona, which established that juries and not judges shall decide the fate of defendants in capital cases. In response, the Florida Supreme Court issued an indefinite stay of the execution of Michael Ray Lambrix, which had been scheduled for Thursday, and is exploring whether the U.S. Supreme Court's ruling should apply retroactively to other cases. Simultaneously, legislators are proposing to rewrite the sentencing laws.
A House bill would require the 12 jurors to be unanimous in finding at least one aggravating factor in a capital case in order to recommend death. That change addresses the high court's Jan. 12 ruling in Hurst vs. Florida, which faulted the state for allowing judges — not juries — to determine the facts necessary to impose a death sentence. The bill also would require the vote of at least nine jurors to recommend a sentence of death. Until the high court threw out the law, Florida was the only state that allowed juries to recommend death by a simple 7-5 majority.
Though the Supreme Court did not address unanimity, that standard as a basis for justifying a death sentence is in keeping with the court majority's decision by putting more authority into the hands of jurors. Along that line, the Legislature should require jury recommendations for death to also be unanimous. The 9-3 requirement being proposed is a nod to prosecutors.
The Florida Supreme Court, which heard oral arguments on the issue last week, should agree that applying Hurst retroactively makes both legal and common sense in the wake of the U.S. Supreme Court's decision. That decision did not create a clear path for state Supreme Court justices because it did not directly address whether it should be applied retroactivity. But the state's argument — that Hurst is procedural in nature and that applying it retroactively, which could affect hundreds of cases, is too burdensome for the courts and victims' families — is pinched legal logic and shows contempt for fairness under the law. Attorney General Pam Bondi is once again on the wrong side of justice. This is not downplaying the horrific nature of these murders or ignoring the pain and suffering of the victims' families. It is about ensuring equal treatment, a cornerstone of our legal system.
Florida does not find itself in this mess because of the defense bar or activist judges. The U.S. Supreme Court set a precedent for this case in 2002, in Ring vs. Arizona, prompting the Florida Supreme Court more than a decade ago to urge the Legislature to reform death sentencing laws. That never happened. As the Tampa Bay Times' Anna M. Phillips reported, Florida has more than 170 people on death row today who might not have been condemned to die in any other state. Of the 389 people on Florida's death row, four out of five were sent there by a split jury.
The system for rendering an imperfect punishment is terribly flawed. The Legislature and the courts should not compound the damage by buying the state's flawed argument that certainty in sentencing can trump fairness guaranteed by the U.S. Constitution.