A new state law lowering the number of jurors required to recommend death sentences has spurred a rash of litigation, triggered conflicting judicial rulings and infused an additional level of uncertainty in capital cases.
The changes have caused what numerous attorneys called “chaos” in the death-penalty system.
The law allows death sentences to be imposed based on the recommendations of eight of 12 jurors, an easier threshold than a previous requirement of unanimous jury recommendations. The change — prompted by Parkland school shooter Nikolas Cruz receiving a life sentence after a jury did not unanimously recommend death — gave Florida the lowest death-penalty jury standard in the nation.
Allowing 8-4 recommendations is the latest in a series of changes in the capital-sentencing process since a 2016 U.S. Supreme Court decision in a case known as Hurst v. Florida. The ruling found that the state’s death-penalty process was unconstitutional.
In October 2016, in the similarly named case of Hurst v. State, the Florida Supreme Court interpreted and applied the U.S. Supreme Court ruling and said unanimous jury recommendations were required. The Legislature responded in 2017 by putting such a unanimous requirement in law.
Amid uncertainty over whether the unanimity requirement should be applied retroactively to older cases, justices ordered resentencing for about 150 Death Row inmates who were sentenced based on recommendations by non-unanimous juries. Before 2016, inmates could be sent to Death Row based on majority — or 7-5 — jury recommendations.
About 90 resentencing proceedings were completed under the unanimity requirement before this year’s law went into effect. More than three-fourths of those proceedings resulted in life sentences, with prosecutors often not asking for the death penalty in the resentencings.
When Gov. Ron DeSantis signed the 8-4 law this spring, nearly five-dozen Hurst resentencing cases were pending. That has led to disputes about which standard should apply.
“Undoubtedly, the new statute will plunge Florida’s death-penalty system into further instability and chaos,” Maria DiLiberato, executive director of Floridians for Alternative to the Death Penalty, told The News Service of Florida. “This knee-jerk change, in an understandably emotional case (the Cruz case), is causing complete destabilization of Florida’s death penalty.”
The Legislature approved the change after an ideological shift in recent years on the Florida Supreme Court. Shortly after DeSantis took office in 2019, he appointed justices who established a conservative majority. The court in 2020 reversed course on the death penalty and said unanimous jury recommendations were not necessary.
The unanimity requirement remained on the books, however — until this spring, when state lawmakers passed the law responding to the Cruz life sentence. DeSantis, who championed the change to a lower standard, signed the legislation on April 20.
New law has impact on resentencings
The change is affecting Death Row inmates preparing for resentencings because of the Hurst decision. The unanimous standard was in place when the resentencings were ordered, leading their attorneys to argue it should continue to apply in the cases.
The new law also is having an impact on cases involving defendants accused of committing murders before DeSantis signed the law. Their attorneys also maintain the 8-4 threshold should not apply retroactively.
“Here we go again, with changes of laws that create different categories of people that are being treated very differently, which has to be a violation of the Constitution. And then, we're looking at the overreach or the overstep as a result of very emotional, traumatized community and the play of politics in the death penalty, which is just horrifying, but we know it's very political,” Hannah Gorman, a professor who is director of The Balanced Justice Project at Florida International University’s College of Law, said in an interview.
The dispute over applying the 8-4 standard, in part, involves what is known as the “ex post facto” clause in the state and federal constitutions.
Defense attorneys contend that applying the new standard to cases initiated before April 20 would violate the ex post facto clause because the standard represents a substantive change in the judicial process.
Prosecutors, however, maintain that the lower threshold amounts to a “procedural” change and therefore should apply in such cases.
Judges — including in the same judicial circuit — are divided on the issue.
In the 10th Judicial Circuit, Judge Kevin Abdoney last month rejected prosecutors’ request to apply the 8-4 standard in the sentencing of Bryan James Riley, who was charged with four counts of first-degree murder in September 2021.
Abdoney, a Polk County-based judge, found that the new law “moved the goalposts” on the state’s death-penalty process.
“In the same stroke of the pen, the Legislature has reduced friction on the path toward death while increasing it on that toward life. As a result, the risk to a defendant confronted with the possibility of being executed that he will actually meet such an end is greater now than before. Shouldering the defendant with such increased risk not present at the time he allegedly committed his crimes substantially implicates ex post facto concerns,” Abdoney wrote in a July 12 ruling.
But three weeks earlier in the same circuit, Judge Angela Cowden ruled that the 8-4 standard should be used in the sentencing of Zephan Xaver, who was accused of killing five women during a bank robbery in 2019.
“In defendant’s (Xaver’s) case, the change in the law has increased his chances of receiving the maximum sentence he already faced; however, it has not ‘change(d) the punishment, (or) ‘inflict(ed) a greater punishment, than the law annexed to the crime, when committed,’” Cowden, who is based in Highlands County, wrote on June 26, partially quoting a legal precedent.
Both judges’ analyses were rooted in prior court rulings on the ex post facto issue.
No 'lead' case to guide trial judges
As circuit judges grapple with which standard should apply, a number of appeals have made it to the Florida Supreme Court. But a “lead” case — if there will be one — has not emerged.
Lawyers for Attorney General Ashley Moody argue that the new law should apply to “all defendants whose penalty phases” will occur after April 20.
A Supreme Court case drawing attention is the appeal of Leonard Gonzalez, a Death Row inmate ordered to be resentenced following the Hurst decision. Gonzalez, who was convicted in the 2011 murders of an Escambia County couple, is appealing a circuit judge’s ruling that called for the 8-4 standard in resentencing.
Gonzalez’s case includes a number of twists, with Moody’s lawyers initially asking justices to weigh in on the retroactivity issue.
“Capital trials and Hurst resentencings are being stayed and delayed awaiting guidance from this (Supreme) Court regarding the constitutionality and proper application of the recently amended death penalty statute. This court should address these issues as quickly as possible to prevent any further delays,” Charmaine Millsaps, a senior assistant attorney general, wrote in a brief filed June 19.
But just weeks later, another one of Moody’s lawyers filed a motion asking the Supreme Court to dismiss the case, arguing that Gonzalez’s appeal raised issues “best addressed in a post-trial direct appeal.”
The court rejected the state’s request, and the case remains pending.
Melanie Kalmanson, an attorney and City & State contributor who publishes the Tracking Florida’s Death Penalty blog, pointed to the state’s filings in the Gonzalez case to demonstrate what she called “widespread chaos” in the death-penalty system.
“There’s some indication that even the state is not sure how they want to address the litigation about the new statute,” she said.
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