Civil Liberties

Condemned to Death by a Split Jury in Florida

Requiring unanimous juries underscores the gravity of a death penalty sentence.


Florida has had more exonerations of death row inmates than any other state in the country—roughly one for every three executions the state has carried out. A track record like that would normally lead to a certain amount of circumspection, but not on Florida's highest court. In a major decision issued in January, the state Supreme Court reversed a 2016 ruling and declared that split juries can recommend death sentences.

In its majority opinion, the court ruled that it "got it wrong" when it decided that the state's previous death penalty scheme, which allowed death sentences to be imposed by the recommendation of nonunanimous juries, violated the Florida constitution's prohibition on cruel and unusual punishment.

"Lest there be any doubt, we hold that our state constitution's prohibition on cruel and unusual punishment…does not require a unanimous jury recommendation—or any jury recommendation—before a death sentence can be imposed," the majority opinion stated. "The text of our constitution requires us to construe the state cruel and unusual punishment provision in conformity with decisions of the Supreme Court interpreting the Eighth Amendment."

The U.S. Supreme Court struck down Florida's death penalty law on Sixth Amendment grounds in 2016 because it relied too heavily on determinations by judges, rather than juries. In response, state legislators rewrote the law to require 10 out of 12 jurors to recommend the death penalty. The Florida Supreme Court then invalidated the new legislation, saying the state constitution required a unanimous jury recommendation in death penalty cases. Now the justices have changed their mind.

Alabama is the only other state that allows nonunanimous jury recommendations in death penalty cases. It also allows judges to override jury recommendations. According to a 2016 report by Harvard Law School's Fair Punishment Project, 89 percent of Florida and Alabama's death penalty sentences since 2010 were decided by nonunanimous juries.

In a lone dissent to January's decision, Florida Supreme Court Justice Jorge Labarga wrote that "the majority gives the green light to return to a practice that is not only inconsistent with laws of all but one of the 29 states that retain the death penalty, but inconsistent with the law governing the federal death penalty. Further, the majority removes an important safeguard for ensuring that the death penalty is only applied to the most aggravated and least mitigated of murders. In the strongest possible terms, I dissent."

Requiring unanimous juries underscores the gravity of a death penalty sentence. The Florida Supreme Court's decision to roll back those protections ignores it.

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  1. With one out of three overturned ,it sounds like the death penalty should be abolished .

    1. Ya think?

  2. Support for the death penalty is the ultimate test of allegiance for blind worshipers of the state and rabid cop-suckers.

  3. Well, if convicted by a split jury, they could make the condemned 10/12ths dead.

    1. That’s mostly OK.

      1. No, this is a Florida case, not Oklahoma.

  4. Requiring unanimous juries underscores the gravity of a death penalty sentence. The Florida Supreme Court’s decision to roll back those protections ignores it.

    Ignores the gravity of the death penalty or denies it? I’m pretty sure governments generally tend to be a little more casual about killing people than the average person. When you look at the greatest mass murderers in history, there’s mostly just the one category that have ever killed people by the millions. (Depending on your view of Planned Parenthood and Trojan condoms.)

    1. I’d think you were hinting at socialism specifically and statism generally, except I can’t fit Genghis Khan into that.

  5. Hmm, how about requiring unanimous decisions for law-making and judicial reviews?

    1. How about unanimous to maintain and one dissent to overturn?

      1. Yes, it ought to be. If learned judges with years of experience and all the time in the world can’t agree on what a law means, that is prima facie proof the law or verdict is unclear and should be voided in its entirety. It’s ridiculous that a jury of 12 has to be unanimous, but an appeals court can confirm a guilty verdict with a split vote.

    2. The Polish-Lithuanian Commonwealth tried that (“liberum veto”) in the 1700s. It did not turn out well, partly because unfriendly neighbors could (and often did) bribe a single delegate to the Sejm (parliament) to veto everything and create chaos. The authors of the Federalist papers specifically cited Poland as an example to avoid.

      1. Yet the authors of the Constitution lived in a system where the jury had to be unanimous in order to convict.

        The question today, I suppose, is what relates to the issue of guilt – and therefore belongs to the province of a jury – and what relates to sentencing, where a jury is optional (or the jury can operate in unconventional ways).

        The Supremes have reminded us (and it would be true even if they didn’t say it) that any fact which, if established, heightens the maximum punishment, must be found by a jury. But it’s dicier if finding a specific fact merely is part of a multi-pronged test for determining a sentence. I’d discuss this more, but I think I jsut pulled a muscle in my brain.

  6. Florida has had more exonerations of death row inmates than any other state in the country—roughly one for every three executions the state has carried out.

    When Janet Reno (most evil AG in the country’s history) was in office, she focused on child sex abuse, while suppressing huge amounts of exculpatory evidence. 90+% of her child sex abuse convictions were eventually overturned.

    So 1 in 3 is an improvement.

  7. Hard-core death penalty opponents have lied in order to be seated on death penalty sentencing juries and block the death penalty even in cases where guilt (and depravity) are proven beyond a shadow of a doubt. Perhaps 11-1 sentencing verdicts should be allowed, but the dissenting vote should be allowed to argue his/her dissent– is it based on specifics of the case, or just on a blanket opposition to any death penalty?.

    1. Interesting argument but should it not run both ways. If you block a hardcore death penalty opponent, should you also not block hard core pro death penalty person. What if one or two of the people on a jury would vote for the death penalty no matter what. Then the person on trial has one or two people stacked against them from the start, regardless of the argument for only a life sentence. Sounds to me like its too much to chance and better to get rid of the death penalty altogether,

  8. Didn’t the US Supreme just rule that split juries were unconstitutional for felony level cases?

    In that context, how can the Florida State Supreme Court then rule them legal? Doesn’t the US Supreme Court take precedence?

    1. One difference is that the Ramos decision involved where juries were the deciding factor; verdicts by 10-2 or 11-1 votes. In this case, the jury only recommends whether the death sentence should be imposed, the judge makes the decision. I don’t know if that’s enough of a difference, but it’s there.

      1. The Ramos case involved guilt, for which a unanimous verdict is now always required. For death penalty cases only, once a jury has found guilt beyond a reasonable doubt, then a separate new jury is empaneled to decide whether to impose death or some lesser penalty.

        Prosecutors have the right to exclude hard-core death penalty opponents from this sentencing jury only, if they can discover them. The separate sentencing jury was set up after SCotUS stopped prosecutors from excluding death-penalty opponents from guilty-or-innocent juries. SCotUS reasonably feared that guilty-or-innocent juries that excluded death-penalty opponents would be more likely to find guilt even when they should not.

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