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  1. Opinion

Editorial: Florida's death penalty remains flawed

The Florida Supreme Court finally has fixed a grievous flaw in the death penalty system, requiring that juries be unanimous in recommending death sentences.
Published Oct. 21, 2016

The Florida Supreme Court finally has fixed a grievous flaw in the death penalty system, requiring that juries be unanimous in recommending death sentences. For too long, Florida has been an outlier among states by not requiring unanimity while recording one of the country's highest execution rates. The court's ruling is an important remedy, but it does not change the fact that capital punishment is unevenly applied and should be scrapped altogether.

Until this year, Florida law required only a simple majority of jurors — seven of 12 — to recommend a death sentence in first-degree murder cases. The final decision was left to the judge. The U.S. Supreme Court in January declared that scheme unconstitutional. The ruling, in Hurst vs. Florida, centered on Timothy Lee Hurst, who was convicted of the 1998 murder of Cynthia Harrison, his manager at a restaurant in Pensacola. Sentenced to death in 2000, Hurst was ordered to be resentenced, and in 2012 a second jury voted 7-5 in favor of death. After weighing the evidence in the case, a judge ruled that Hurst should be executed. The court said juries should not be relegated to an advisory role and should be required to find each fact necessary to impose a death sentence.

Florida legislators responded with a convoluted law that did not go far enough in ensuring a fair and constitutional system. The 2016 law requires juries to unanimously vote for every reason, known as aggravating factors, to warrant a death sentence. But it requires only 10 of 12 jurors to agree to impose death. The Florida Supreme Court rightly found that threshold inadequate, which will mean yet another rewrite of the law. Hurst, one of 385 inmates on Florida's death row, was granted a new sentencing. Between the U.S. Supreme Court and Florida Supreme Court rulings, dozens of death row cases are expected to be revisited, adding to the wasted millions taxpayers spend on this broken system.

The evidence is right here in Tampa Bay. A new Harvard University study places Hillsborough and Pinellas among the only 16 counties in the country that imposed at least five death sentences between 2010 and 2015. (Most imposed none.) The study by the school's Fair Punishment Project identified "structural failings" in these counties — namely prosecutors more inclined to seek the death penalty and overwhelmed public defender's offices lacking resources and experienced attorneys. They also found alarming racial trends. In Hillsborough, two-thirds of the death sentences were imposed on minority defendants, while 60 percent of the victims in the cases were white — even though the majority of Hillsborough's homicide victims are black. The pattern was similar in Pinellas.

Hillsborough State Attorney Mark Ober and Pinellas-Pasco State Attorney Bernie McCabe defended their practices and raised valid questions about the study's conclusions. But some of the findings are instructive. First, the death penalty cannot be just if defendants on trial for their lives do not have adequate representation.

Second, the cases demonstrate the need for more consideration of mental health issues. The U.S. Supreme Court has ruled that mentally disabled people cannot be put to death because they lack moral culpability. The death penalty is supposed to be reserved for the most depraved, heinous murders. Defendants with severe, documented mental illness may be capable of such crimes, but are they equally culpable? Prosecutors should more skeptically consider that question.

If Florida must have the death penalty, sending a person to death row should be hard and rare. The Florida Supreme Court's recent ruling will help ensure that. It also brings the state in line with the rest of the country in requiring jurors to unanimously agree when a death sentence is appropriate. None of that progress is thanks to the state's elected leaders, who have clung to an unconstitutional and cruel system.

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