Opinion: Facts and politics collide in debate over this year's death penalty overhaul

The writers, both lawyers, argue that this year's capital punishment rewrite is based on 'a misunderstanding of constitutional law.'

Lori Alhadeff cries as Assistant State Attorney Mike Satz details the killings in his closing arguments in the penalty phase of the trial of Marjory Stoneman Douglas High School shooter at the Broward County Courthouse in Fort Lauderdale, Florida, on Oct. 11, 2022

Lori Alhadeff cries as Assistant State Attorney Mike Satz details the killings in his closing arguments in the penalty phase of the trial of Marjory Stoneman Douglas High School shooter at the Broward County Courthouse in Fort Lauderdale, Florida, on Oct. 11, 2022 Photo by AMY BETH BENNETT/POOL/AFP via Getty Images

Proposed legislation (SB 450, HB 555) would make it easier to sentence criminal defendants to death than in any other state in the country. The legislation is a reaction to the outcome of the Marjory Stoneman Douglas High School shooter trial, where a Broward County jury could not unanimously agree to a death sentence, as current law requires. 

The original proposals reduced the jury vote to 8-4, which would be the lowest standard in the country. As of right now, the House and Senate don’t agree on what the non-unanimous number should be. The House bill remains at 8-4. The Senate bill would require judges to impose a sentence of death if the jury vote was at least 10-2 and then also allows the judge to impose a sentence of death if 8 or 9 jurors vote for death. 

This week, committees in both the Senate and the House held hearings on the proposed legislation. The debate made clear that this legislation is premised on misinformation and a misunderstanding of constitutional law:

A requirement of unanimity is not an unusual or overwhelming standard. 

Introducing the bill, Rep. Berny Jacques referenced the current unanimity requirement as “over-the-top.” It is anything but that. Twenty-seven states retain the death penalty. In each of those states except one, the standard is unanimity. Alabama is the only state in the country that retains the death penalty and does not currently require a jury’s unanimous recommendation for death. The current requirement in Alabama is 10-2 although unanimity legislation is pending there.

Under the statute requiring unanimity, Florida led the country in new death sentences in 2022. 

Sen. Bobby Powell Jr. asked whether there has been a decrease in death sentences imposed in the state since the 2017 statute requiring unanimity was enacted. The bill’s sponsor, Sen. Blaise Ingoglia, did not have an answer but said he would look into it. 

Here’s the actual data:

  • Florida has the highest death row population of all states that continue executions. The only state with a larger death row population is California, which has a governor-imposed moratorium on executions.
  • After unanimity was passed in 2017, Florida led the nation in death sentences for 4 of the next 5 years, tying Texas in 2018 with 7 death sentences and leading the nation in 2019 and 2020 with 7 death sentences imposed each of those years.  Because of COVID, there were fewer trials in 2021. That year, Florida sentenced 2 people to death, only 2 fewer than Alabama and Oklahoma. Finally, in 2022, Florida again led the nation with 4 death sentences.

A sentence of death costs the state much more than life in prison. 

In answering a question from a committee member, Ingoglia argued that taxpayer money should not go to keeping someone like the Parkland shooter alive, suggesting that taxpayers save money when a defendant is sentenced to death rather than life in prison. In fact, the opposite is true.

Sentencing a defendant to death costs the state exorbitantly more than sending someone to prison for life. A 2000 Palm Beach Post article estimated that Florida spends $51 million each year enforcing the death penalty – ”above and beyond what it would cost to punish” everyone convicted of first-degree murder with life in prison without parole. 

Ten years later, a Florida Bar News article estimated the same, and stated that “[i]t is estimated that each execution costs taxpayers $24 million.” 

In 2021, a series from the Sun Sentinel estimated that capital punishment “has cost Florida an extra $223 million since 1972 to execute 99 people who could be serving life without parole instead, and is costing some $800 million more for the 333 people still on death row.”

Why does it cost so much?

  • The trials are longer and require more resources.
  • Capital defendants are entitled to more appeals than those sentenced to life in prison. These appeals start immediately after the trial and go all the way through the point of execution, release, or natural death.
  • Death Row has heightened security, requiring each inmate to be housed in a single cell, despite the fact that those on death row are convicted of the same crime (statutorily) as those sentenced to life in prison.

Studies show the death penalty does not have a strong deterrent effect. 

Powell asked if data supports the idea that the death penalty deters others from committing murder. Ingoglia responded that while he is not aware of specific data, it is “common sense” that making laws “tougher” would make future offenders “think twice.”

Here is the data:

  • The Death Penalty Information Center reported in 2017 that an “analysis of U.S. murder data from 1987 through 2015 . . . found no evidence that the death penalty deters murder or protects police.” Rather, “the evidence show[ed] that murder rates . . . are consistently higher in death-penalty states than in states that have abolished the death penalty.”
  • A 2021 article by the Sun Sentinel had similar findings to the DPIC’s study, reporting that “[a]nnual murder rates are consistently higher overall in the death penalty states than in the 22 without capital punishment.”

If the new legislation passes and is found unconstitutional, it will almost certainly result in new sentencing proceedings for those sentenced to death under it. 

Powell asked what would happen if the proposed legislation were enacted and later determined by a court to be unconstitutional. Of course, this is what happened in 2016 when the U.S. Supreme Court determined in Hurst v. Florida that Florida’s prior capital sentencing scheme violated capital defendants’ right to jury trial under the Sixth Amendment to the U.S Constitution. 

Powell asked specifically whether defendants that were sentenced under this new statute would have to be resentenced. Ingoglia answered that he believed that to be true. Committee Chair Jonathan Martin answered that defendants would not be resentenced because of double jeopardy.

Martin’s response is almost certainly not accurate. After Hurst, Florida’s courts were thrown into chaos. Each defendant on death row (a population of approximately 400 at the time) was entitled to raise a claim to relief based on the ruling, which resulted in a wave of litigation. Ultimately, Hurst resulted in over 100 resentencing proceedings, more than 60 of which are still pending.

Florida leads the country on exonerations, only a small percentage of which are due to DNA evidence. 

Powell asked whether Florida leads the country on death row exonerations. Accurately, Senator Ingoglia confirmed that to be true. However, Ingoglia continued with an explanation suggesting that wrongful convictions are not such a concern anymore considering the accessibility and evolution of DNA evidence, which he suggested was the primary reason for the exonerations that have occurred to this point.

Here are the facts:

  • Florida is responsible for the highest number of exonerations from death row with 30. It is not even close with Illinois in second place with 22.
  • Only 3 of Florida’s 30 (10%) exonerations involved DNA.
  • Almost all of the exonerations were cases in which the jury vote for a sentence of death was non-unanimous.

After the hearings, the Senate Committee on Criminal Justice voted 6-2 to approve the proposed legislation and the House Subcommittee voted 13-5 to approve the proposed legislation. As a result, the bills move forward in each chamber. 

Absolutely no one denies that the Parkland shooting was a heartbreaking tragedy. That will never change. But this legislation is not the answer. Rather than offering solace and peace, this misinformed legislation will almost certainly bring uncertainty and chaos for current and future victims, and burden the court systems for decades to come. 

Melanie Kalmanson, a graduate of the Florida State University College of Law, has been a member of The Florida Bar since 2016. She clerked for Florida Supreme Court Justice Barbara J. Pariente in 2016-19 and serves on the steering committee for the American Bar Association’s Death Penalty Representation Project. Maria DeLiberato is a capital defense lawyer in Tampa and the executive director of 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.

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