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.