FOLIO
Florida law “destroys the deliberations process.”
To find someone guilty of a crime — any crime —jurors have to agree unanimously.
Not so to impose the death penalty. Not here in the sunshine state. And that’s why Florida’s death penalty sentencing procedure is in constitutional hot water.
As Florida law stands now, after jurors find a defendant guilty of first-degree murder, they aren’t required to deliberate to the point of unanimity in order to sentence a murderer to death.
They simply take a vote, and let the judge do the rest.
Those split, majority-only sentencing votes reduce the jury’s role from fact-finder to adviser, the US Supreme Court said on January 12, which violates an individual’s Sixth Amendment right to trial by jury.
Justice Sonia Sotomayor wrote in Hurst v. Florida, “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.”
And juries find facts, traditionally, by reaching unanimous verdicts.
So why didn’t the court mention the word “unanimous” in its opinion about juries as final fact-finders?
“They frequently try to issue the narrowest opinion possible,” says Adam Tebrugge, an ACLU staff attorney based in Tampa.
“There’s a strong argument that a 7-5 finding is not sufficient to find any facts,” he added.
Tebrugge is referring to the split-vote recommendation on which a Florida trial court imposed the death penalty for Timothy Hurst, whose case just became a US Supreme Court landmark. Hurst’s case will now go back to the Florida Supreme Court, which will determine whether the unconstitutional sentencing procedure resulted in “harmless error.”
It’s hard to see how violating the constitution could be harmless in a death penalty case, attorneys say.
In capital cases in Florida, the “penalty phase” is a separate proceeding that occurs after the jury convicts a defendant of first-degree murder. Aggravating elements of the crime are weighed against mitigating factors during the penalty phase. Florida law requires that judges give “great weight” to the jury’s analysis of those factors in the form of their sentencing “recommendation.”
And that, according to SCOTUS’s January 12 ruling, is simply not enough to satisfy the Sixth Amendment.
“If you don’t require a unanimous jury it destroys the deliberations process,” says ACLU staff attorney Adam Tebrugge, who is based in Tampa. “You just vote. You don’t even have to talk about it.”
That argument appears to cut both ways, says local criminal defense attorney, D. Gray Thomas. He says “fear-mongers” in the legislature will point out that notorious serial murderers Ted Bundy and Eileen Wournos were sentenced based on split, majority-only jury recommendations.
But, Thomas concedes, had those jurors been required to actually deliberate instead of merely voting, they might have reached unanimity on Bundy’s and Wournos’ death sentences.
The Florida Legislature’s history
of intransigence
Tebrugge and Thomas are not the first people who have noticed the difference between a majority vote and a unanimous one and how that difference changes the way juries behave. For a thorough analysis of the issue, see Alexandra Zayas’ 2013 article in the Tampa Bay Times.
The Florida Supreme Court took note of the distinction in 2005, citing studies which said that the decision making process is more “thorough and grave” when jurors are required to reach unanimous decisions. The state’s high court recommended then that the Florida legislature take action to require penalty-phase verdicts be unanimous in order to impose capital punishment.
The legislature declined.
In 2006, The American Bar Association made the same recommendation.
The legislature declined.
In 2012, Sen. Thad Altman, R-Melbourne, introduced legislation to bring Florida’s death penalty sentencing system back into alignment with “hundreds of years” of common law, according to a 2013 article in the Tampa Bay Times.
But, the Florida legislature declined once more to change the law to require unanimous jury verdicts to impose the death penalty.
Right now, in light of the January 12 ruling, attorneys agree there is no constitutional means by which to sentence convicted murderers to death in Florida. A local coalition of faith and civic leaders in Jacksonville, Justice 4 Jacksonville, has asked State Attorney Angela Corey to halt all death penalty trials until the legislature fixes the sentencing laws. Corey said in a statement that she will not:
“The death penalty is still a viable sentence in the state of Florida. We will follow the law, and in appropriate cases State Attorney Corey will still seek the death penalty. This opinion deals with procedural issues which will be addressed by the Florida Supreme Court and the Legislature.”
Thomas does not disagree with Corey: “The court didn’t hold the death penalty unconstitutional, they found the procedure that gives the authority to the judge unconstitutional.”
Corey’s cohort in Orlando, State Attorney Jeff Ashton, has asked judges in his circuit to halt death penalty prosecutions until the law is repaired.
More questions than answers
Asked which death row inmates could be affected by the high court’s ruling, Thomas says, theoretically, “all of them.” The penalty-phase procedure that gives the judge the final word was written into Florida law after the US Supreme Court reinstated the death penalty, which was in 1972.
Relief should apply more definitively, he reasons, to any death row inmate who raised “Hurst-type issues” and who continue to have active appeals. “Relief,” he argues, should come in the form of death sentences commuted to life in prison.
Whether the state can put justice on hold until it changes its laws is another question, attorneys say. Some defense attorneys would rather they not.
“Some attorneys are asking, ‘Should I advise my client to plead guilty straight up right now?’” Thomas contends, noting that in the absence of a means by which to sentence people to death, defendants may want to go ahead and plead to life with no parole.
Thomas also sees that the issue may not be limited to jury unanimity on the death penalty, but also on each fact that justifies the sentence, according to Sotomayor’s language in Hurst.
“[Currently,] the judge identifies aggravating factors,” Thomas says. “But the judge doesn’t know what aggravating factors the jury had. There’s not an interrogatory verdict form.”
“It’s absolutely clear that the US Supreme Court will conclude that you’ve got to have jury unanimity on one or more aggravating factors,” Thomas says. “The jury [still] needs to have the opportunity to grant mercy even if they have the lawful opportunity not to.”
Correcting, in broad terms, the constitutionally invalid statutes regarding death penalty sentencing in Florida is on the legislature’s “must do” list. House judiciary chairman, Charles McBurney, R-Jacksonville, told the News Service of Florida that lawmakers were committed to making the changes necessary to bring the law in line with Hurst.
Thomas wonders how those changes will work out, in practical terms, for different death row inmates. “Are those changes going to be allowed to apply retroactively to people who have challenges pending, or will it apply only to people charged after Hurst?”
The result, he said, could be disastrous for death row inmates who were sentenced at the wrong time.
“If I’m sentenced to death three years before the guy in the cell next to me on death row, he may get commuted while I don’t,” Thomas says. “Isn’t that the height of arbitrariness?”
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