Florida juries would have to unanimously decide that defendants convicted of capital crimes should be put to death for the sentence to be imposed, under a measure that lawmakers rushed to pass during the first week of the annual legislative session.
The proposal, given final approval Friday by the House, is the Legislature’s second attempt to comply with a series of court rulings that for more than a year have blocked executions and prevented death-penalty cases from moving forward in the state. It also would remove Florida from an “outlier” status as one of just two states that do not require unanimity for death sentences to be imposed.
The 112-3 vote in the House puts the proposal in the hands of Gov. Rick Scott, whose record of signing more death warrants than any other Florida governor was suspended after a U.S. Supreme Court ruling early last year in a case known as Hurst v. Florida.
The 8-1 Hurst decision, premised on a 2002 ruling in a case known as Ring v. Arizona, found that Florida’s system of allowing judges, instead of juries, to find the facts necessary to impose the death penalty was an unconstitutional violation of the Sixth Amendment right to trial by jury.
The Legislature hurriedly passed a law during the 2016 session to address the Hurst ruling and required, among other things, that at least 10 of 12 jurors recommend death for the sentence to be imposed.
But a majority of the Florida Supreme Court struck down the new law in October, deciding that it, too, was unconstitutional because it did not require unanimous jury recommendations for death sentences. The issue deals only with the sentencing phase of capital cases, not the guilt phase, which already requires unanimous jury verdicts.
The rulings in Hurst and a handful of other cases have caused consternation for defense lawyers, prosecutors and judges, who have been split on whether or not they could move forward with capital trials before the Legislature fixed the statute.
More than half of the state’s nearly 400 Death Row inmates may be eligible for new sentencing hearings as a result of a pair of Florida Supreme Court orders related to the original Hurst decision.
Adding to the confusion, the state court recently reversed a previous decision and ruled that capital trials could proceed, even without a legislative fix.
But that opinion did not slow down lawmakers — who last year ignored warnings from public defenders and others that 10-2 recommendations for death would not survive the scrutiny of the court — from rushing the statutory change through the process.
“Your positive vote today allows cases to move forward and for victims and their families to continue to have access to justice,” House Judiciary Chairman Chris Sprowls, a Palm Harbor Republican and former prosecutor, said prior to Friday’s vote.
The Senate unanimously approved the measure (SB 280) a day earlier.
If Scott signs the measure as expected, he could start signing death warrants again; the Florida Supreme Court indefinitely put on hold two executions ordered by Scott early last year.
“This will fix the immediate problems raised by Hurst, and it will put Florida in line with most of the other states that have the death penalty,” said Florida International University law professor Stephen Harper, who runs the school’s Death Penalty Clinic.
Harper predicted that Scott would resume signing death warrants once — and if — he signs the law, “but there’s still litigation to go in those cases.”
But challenges to the state’s death penalty law, related to the Hurst decisions, as well as a new lethal-injection process and litigation spurred by new death warrants make it unlikely that executions will resume immediately.
Some death-penalty experts maintain that, even with the unanimous jury recommendations, Florida’s law remains problematic.
Requiring unanimous jury recommendations is “only one step in a long journey,” said 10th Judicial Circuit Assistant Public Defender Pete Mills.
“Florida’s death penalty still has problems of constitutional magnitude, including but not limited to the failure to limit the scope of its application, racial disparities, geographic disparities, and execution of the mentally ill,” Mills, chairman of the Florida Public Defenders Association Death Penalty Steering Committee, told The News Service of Florida on Friday.
Florida also leads the country in the number of Death Row inmates who have been exonerated, Mills said.
Critics also argue that state law is not narrow enough to capture “the worst of the worst” for whom the death penalty should be reserved.
“Sooner or later this is another issue that’s going to come up before the Supreme Court and it’s going to throw the Florida system back into chaos,” Harper said.
But Sprowls maintained that the courts’ only problem with the Florida statute centered on the issue of jury unanimity, something the U.S. Supreme Court did not address in its Hurst ruling last year.
The Florida court “went a little outside the scope of that opinion from the U.S. Supreme Court” by ruling on unanimity, Sprowls told his colleagues during floor debate Friday.
“The reason I think that that’s important for us all is, clearly they were willing to look at all of the aspects of the death penalty statute, and the only aspect that they raised a constitutional concern about was this one,” he said.