Death is different – and so is Florida.
This week, legislation was proposed that would reduce the jury vote required to sentence a defendant to death in Florida from 12-0 to 8-4. If this legislation is adopted, the state will have the lowest standard for imposing death in the country. In fact, the only other state that does not require a jury’s unanimous recommendation for death is Alabama, which requires a jury recommendation of 10-2.
Florida has the largest death row population (300 as of Jan. 31) of all states that still conduct executions. It is also responsible for the highest number of death row exonerations, 30 since 1973. Nearly all of those exonerations involved non-unanimous jury recommendations for death.
Last week, Gov. DeSantis signed the first death warrant since executions were paused due to COVID. Florida now joins only four other states with executions scheduled this year – Missouri, Ohio, Oklahoma, and Texas.
There are two possible sentences when a defendant is convicted of first-degree murder: Life in prison without the possibility of early release or death. If the prosecutor seeks death, the defendant proceeds to a penalty phase trial after being convicted. The main point is for the jury to determine whether the defendant is among the “worst of the worst” and therefore deserving of death. To sentence a defendant to death, several findings are necessary:
— Prosecutors have to prove each aggravating factor beyond a reasonable doubt. An aggravating factor is an aspect of the crime that makes the defendant more deserving of death. For example, that the victim was a child or a police officer.
— The aggravating factor is sufficient to impose a sentence of death.
— Overall, the aggravating factors outweigh the mitigating ones. Mitigating circumstances are aspects of the defendant’s background that makes him or her less deserving of death. For example, severe mental illness or significant childhood abuse and neglect.
— Death is the appropriate sentence.
Between the third and fourth points is where a jury can exercise mercy. Currently, Florida’s capital sentencing statute requires that the 12-member jury unanimously recommend death.
Along with last week’s warrant, DeSantis proposed legislation that would reduce the necessary jury vote for recommending a sentence of death from unanimity to no less than eight jurors. That legislation was officially filed in both the House (HB 555) and the Senate (SB 450) this week. The proposed language also gets rid of a requirement that the jury unanimously find that the aggravating factors are sufficient to impose a sentence of death and that they outweigh the mitigating factors.
To be convicted of any crime, from the simplest misdemeanor to the most complex felony, all of the jurors must agree on your guilt. But for the state to take someone’s life, the newest proposal suggests two-thirds is sufficient.
This takes us back to nearly how Florida’s capital sentencing scheme was in 2016. That’s when the U.S. Supreme Court held in a case called Hurst v. Florida that Florida law – which required only a simple majority of the 12-member jury to recommend a sentence of death (a vote of 7-5) – violated defendants’ right to jury trial under the Sixth Amendment.
The case was sent back to the Florida Supreme Court, which held in Hurst v. State that each decision the jury makes in the capital sentencing process (listed above), including the final recommendation for death, must be unanimous. As a result, the Legislature amended Florida’s capital sentencing statute to require unanimity. A whirlwind of litigation ensued, which resulted in over 100 new sentencing phases for defendants entitled to Hurst relief – reopening old cases and forcing victims to relive painful trials.
On the upside, Florida’s process was in line with the rest of the death penalty states in terms of unanimity. Prosecutors were more thoughtful about which cases truly warranted the death penalty, and the death sentences imposed were more reliable.
After the Florida Supreme Court changed composition in 2019 with the retirement of Justices Barbara J. Pariente, R. Fred Lewis, and Peggy A. Quince, the Court decided State v. Poole, reversing the unanimity requirement from Hurst and holding that the jury's final recommendation for death need not be unanimous. To be clear, the Poole case paved the way for the proposal filed this week.
Nothing, however, changed for three years after Poole. Prosecutors remained thoughtful in seeking the death penalty, and the system worked like it does across the country: Sentencing defendants to death only when juries unanimously agree that the defendant is truly among the worst of the worst.
Then came the case of the man charged in the 2018 Marjory Stoneman Douglas High School mass shooting in Parkland, Broward County. Last October, three members of the jury decided his young age and documented mental infirmities warranted a life sentence, not death. DeSantis reacted to the outrage of some in the community and began to call for change.
It’s understandable that this unimaginable tragedy spurred strong reactions, and the desire for action makes emotional sense. But after calm reflection and an honest look at the new proposal, the inescapable conclusion is that taking Florida backwards in this way can only lead to further chaos and instability in capital sentencing. These latest bills would significantly reduce the procedural safeguards that ensure the constitutionality of death sentences imposed in Florida. It also positions Florida as one of the most death-friendly states in the country.
In fact, this extreme proposal uses an even lower threshold than the Legislature passed in 2016 following Hurst before the Florida Supreme Court's required unanimity. At that time, the Legislature passed a law requiring a 10-2 recommendation for death.
Similar to the fallout in 2016, this new proposal will make Florida an extreme outlier, undermines reliability and confidence in the capital sentencing process, and threatens the finality of all death penalty cases, which ultimately affects victims.
Legislative decisions are best made in the absence of emotion. If this proposal is passed, it is only a matter of time before Florida starts seeing further constitutional infirmities in death sentences imposed and risks another reversal in the federal courts.
To ensure a constitutional and reliable system, Florida should realign itself with the progress that was made in 2016. When it comes to imposing the ultimate punishment, Florida should not aim to be different.
Melanie Kalmanson clerked for Justice Barbara J. Pariente of the Supreme Court of Florida in 2016-19 and serves on the Steering Committee for the ABA Death Penalty Representation Project. Maria DeLiberato is a capital defense lawyer in Tampa and the Executive Director for Floridians for Alternatives to the Death Penalty. She has served as an assistant state attorney in Miami-Dade County and spent 13 years at Capital Collateral Regional Counsel representing Death Row prisoners, including Clemente Aguirre-Jarquin, Florida’s 28th death row exoneree. Views expressed are those of the authors and not of the City & State Florida editorial staff.