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  1. Opinion

Editorial: Death penalty fix should have gone further

Unwilling to abolish the death penalty, the Florida Legislature at least should have done everything possible to ensure the sentencing process will be constitutional. Instead, lawmakers pulled up just short and that mistake will leave Florida an outlier and likely result in another court challenge.
Unwilling to abolish the death penalty, the Florida Legislature at least should have done everything possible to ensure the sentencing process will be constitutional. Instead, lawmakers pulled up just short and that mistake will leave Florida an outlier and likely result in another court challenge.
Published Mar. 4, 2016

Unwilling to abolish the death penalty, the Florida Legislature at least should have done everything possible to ensure the sentencing process is constitutional. Instead, lawmakers pulled up just short. That mistake will leave Florida an outlier and likely result in another court challenge.

Legislation sent to Gov. Rick Scott this week addresses the key issue that led the U.S. Supreme Court to find the state's death penalty sentencing law unconstitutional. But it still would not require the jury to unanimously recommend the death sentence. Instead, lawmakers bowed to the demands of prosecutors and raised the requirement for a death sentence recommendation from at least seven of 12 jurors to at least 10 of 12. Most every other state that still imposes the death penalty requires unanimous consent from the jury, and that should be the requirement here.

The Legislature did correct the flaw that the U.S. Supreme Court cited in January when it found the death sentencing law unconstitutional, a decision that resulted in putting all executions on hold and raised questions about the status of ongoing cases and the impact on inmates already on death row. The court found in an 8-1 opinion that juries rather than judges should have the final authority on the fate of defendants in capital cases. Florida's law had juries offering only advisory recommendations, and the jury's finding of aggravating factors that lead to a death sentence did not have to be unanimous.

The legislation passed this week by the Senate and expected to be signed into law by Scott would require that juries vote unanimously for every aggravating factor that is cited to warrant the death penalty. Prosecutors also will have to notify defendants before trial that they intend to seek the death penalty and list the aggravating factors they intend to prove. Legislators really had no choice if they wanted to fix the law, but these changes will not resolve the broader questions raised by the court's opinion.

Still left to be decided by the Florida Supreme Court is how or whether the U.S. Supreme Court's decision in Hurst vs. Florida should be applied retroactively to inmates already sentenced to death. As many as 43 death row inmates are the first who could get life sentences without parole or new sentencing hearings, because they still have limited challenges to their death sentences known as direct appeals that have not yet been acted upon by the Florida Supreme Court. Those include inmates who have been convicted of horrific crimes, and Attorney General Pam Bondi has argued that the original death sentences should be carried out. But that defies both legal and common sense, and it would not ensure equal treatment under the law as it now stands.

There are broader reasons to abolish the death penalty. It's arbitrary and expensive to carry out. It takes too long and does not provide timely, certain closure for victims' families. Most importantly, it is not error-proof. Florida has the nation's second-largest death row population with 389 inmates, and it leads the nation in exonerations. Those are not lists Floridians should be proud of leading.

Instead, the Legislature made the minimum changes to the death sentencing law to fix the flaws found by the U.S. Supreme Court and grudgingly raised the bar for jury recommendations. At the very least, lawmakers should have required the death sentence recommendation to be unanimous. But that will be another legal fight for another day.