Death Penalty

Florida Supreme Court Rules State Death Penalty Law is Unconstitutional

Florida was one of two states that allowed non-unanimous juries to recommend the death penalty. The state supreme court ruled that's unconstitutional.

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PAUL BUCK/EPA/Newscom

On Wednesday I wrote that the dwindling handful of counties that generate the majority of death penalty sentences in the U.S. were a "constitutional mess," citing a new report by the Harvard Law School's Fair Punishment Project that detailed prosecutorial misconduct, inadequate defense, and racial bias in those counties. Two days later, the researchers at the Fair Punishment Project must be feeling vindicated.

In two decisions issued Friday, the Florida Supreme Court ruled that the state's law allowing non-unanimous juries to recommend death penalty sentences is unconstitutional. The death row inmate who challenged the state law, Timothy Lee Hurst, will be given a new sentencing hearing.

The U.S. Supreme Court struck down Florida's death penalty law this January because it relied too heavily on determinations by judges, rather than juries. In response, state legislators rewrote the law, but the new law only required 10 out of 12 jurors to recommend the death penalty.

Alabama is the only other state that allows non-unanimous jury recommendations in death penalty cases. It also allows judges to override jury recommendations in capital cases. Delaware similarly allowed non-unanimous juries to impose capital punishment, but that state's high court struck down the law in August. According the Fair Punishment Project's findings, 89 percent of Florida and Alabama's death penalty sentences since 2010 have been decided by non-unanimous juries.

In a statement Friday, Harvard law professor and Fair Punishment Project co-founder Ron Sullivan said the Florida Supreme Court ruling "validates our concern about the constitutionality of these verdicts."

"Our latest research has shown that that non-unanimous jury verdicts can lead to the conviction of persons with intellectual disabilities, mental illnesses, and even those who are innocent," Sullivan said. "Eighty-six percent of cases from the four Florida outlier counties featured in our latest report that were decided on direct appeal between 2006 and 2015 were non-unanimous."

Of the 16 counties across the country that have issued at least five death penalty sentences since 2010, four were located in Florida. Florida prosecutors in the counties identified in the report issued lengthy statements to the The Tampa Bay Times on Wednesday disputing the Fair Punishment Project's findings:

"The group releasing this report opposes the death penalty, and its report is nothing more than a position paper to support its cause," [Hillsborough State Attorney Mark Ober] said. "It makes no attempt to be fair and balanced."

Pinellas-Pasco State Attorney Bernie McCabe called the study "intellectually dishonest."

"They use trigger words," McCabe said. "They use incendiary language."

The Fair Punishment Project placed Hillsborough and Pinellas among 16 counties in the nation that imposed five or more death sentences between 2010 and 2015, a finding it attributed to overzealous prosecutors, a lack of regard for mitigating factors like mental illness, and racial disparities.

"The number of murder cases in those five years. One death penalty per year? You know, I just don't see where that rose to the level of blood lust or whatever they're trying to say," McCabe said. "What I saw looked more like a position paper than an academic study."

The Fair Punishment Project study found, among other things, that Miami-Dade County in Florida had the second highest rate of prosecutorial misconduct out of the 16 counties it surveyed:

In 2012, Justice Barbara Pariente took the unusual step of writing a separate opinion in a death penalty case on direct appeal to the Florida Supreme Court to call attention to Miami-Dade prosecutor Abbe Rifkin's "flagrant violations" of conduct norms, mentioning that Rifkin performed "an imaginary script" of the young victim's thoughts before death, inappropriately accused the defense of misconduct, and told jurors that "recommending a life sentence would essentially be an easy way out." In the same year, the Florida Supreme Court reversed Wadada Delhall's death sentence after determining that a different Miami-Dade prosecutor's inappropriate remarks were "overkill." The court wrote that the prosecutor "appeared to be committed to winning a death recommendation rather than simply seeking justice." In 2016, the state Supreme Court reversed another defendant's death sentence because the prosecutor gave an "inflammatory, egregious, and legally improper closing argument."

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  1. Ahh the old, “It’s right if ALL 12 get the same answer” standard.

    1. dont care why theyre doing it. this will put the kibosh on a huge chunk of state sponsored murders. while its preferable that the justification had some ethical/factual basis, at least the killings will be reduced.

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  2. I’ll never understand how death is ‘cruel and unusual’ but life in a stone box is morally just and keeps us from sinking to their level.

    1. A lot of criminals deserve a cruel and unusual punishment, and after reading some of the stuff I’ve seen come across my desk, I often feel that society is remiss in not offering it.
      That said however, there are far too many creepy politicians, pig-ignorant judges, crooked DA’s and weaselly cops, to allow the state to hold the power of life and death over a citizen. At least with life in a concrete box, justice is still a possibility.

  3. It is good that all men must die, else evil would live forever.

  4. Tie a noose and make it tight;
    A feast for crow come tonight!

  5. I certainly understand the libertarian position against the death penalty. I also understand that one may be theoretically for it, but against the way it is practiced. And I am just as strongly against prosecutorial misconduct as anyone here.

    But, just a dumb question, why is a state law that states that 10 out of 12 jurors can recommend the death penalty unconstitutional? If all 12 jurors vote that a person is guilty, than can’t a judge sentence the person to life in prison? If all 12 jurors vote a murderer guilty, and 10 out 12 of them think he should be executed, where is the constitutional issue? It isn’t a question of a jury trial, so not a 5th or 6th amendment issue. Cruel and unusual punishment? I can’t see how that is relevant in this question (I understand being against the death penalty altogether on 8A grounds).

    Maybe someone can help enlighten me.

    1. From reading the linked article, the jury must unanimously agree that there is an aggravating factor sufficient enough to justify the death penalty. The justification seems to be similar to how a jury can unanimously agree that you intentionally killed someone with malice (2nd degree murder), but they only vote 10-2 saying it was willful and premeditated (1st degree). In the same way, a jury must also agree on the aggravating and mitigating factors when imposing a death sentence. The ruling specifically states, “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.”

  6. As the Duke once said:

    “Give yourself up, and I promise you will get a fair trial. Followed by a fine hanging.”

  7. RE: Florida Supreme Court Rules State Death Penalty Law is Unconstitutional
    Florida was one of two states that allowed non-unanimous juries to recommend the death penalty. The state supreme court ruled that’s unconstitutional.

    What is the criteria for jury recommending the death penalty, and where did the state supreme court get it from?

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  9. I listened to my legislature debate this “compromise” and its “fairness”. When legislatures have to stack shit that high chances are a judge will bring the dozer to knock it down. The entire law was changed to fit the commands of a SCOTUS ruling that the FL death penalty as it was practiced was unconstitutional. The Florida supreme court judge has rightly found that the changes made by my elected officials did not meet thr intent of the superior court ruling.

    “We think,10 of 12 is a fair compromise.” Who cares what you think when the intent of the superior court ruling is obvious. And to the point, what is the purpose of allowing 5/6ths? Giving the state license to kill more people? Why not instead lower the bar on capital crime if that is your intent. That way its easier to recommend death penalty and therefore easier to get unanimous consent.

    On a side note, I wonder if the death penalty would be issued at all if the law required a member of the jury to actually participate in the execution. If you believe someone should be put to death you should have enough conviction to press the button.

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