Florida Supreme Court says state’s new death penalty law is unconstitutional

Washington Post

October 14, 2016

Just seven months after Florida revamped its death penalty law, the state’s Supreme Court struck down the new statute as unconstitutional because it does not require juries to be unanimous about handing down the sentences.

With a pair of rulings Friday, the Florida Supreme Court further added to the uncertainty surrounding the death penalty in the state, one of the country’s leading practitioners of capital punishment and home to the second-biggest death-row population nationwide. Florida’s death penalty has been in flux this year thanks to court rulings that left unclear what will happen to the nearly 400 inmates still on the state’s death row.

The Florida Supreme Court’s decision declaring the new measure unconstitutional also marks the second time this year that a court has struck down the state’s death-sentencing statute. The U.S. Supreme Court overturned the state’s old law as unconstitutional in January because it allowed judges, not juries, to make the final decision about imposing capital sentences.

In response to the high court’s ruling, Florida enacted a new measure in March that said jurors must unanimously agree that a case involves at least one aggravating circumstance necessary to warrant a death sentence. The new death-penalty law also increased the number of jurors needed to approve a death sentence, pushing it to 10 jurors from the seven previously required.

[Florida has nearly 400 death-row inmates. Will the state overturn all of their death sentences?]

The ruling Friday came in a case brought by Timothy Lee Hurst, convicted of the 1998 murder of Cynthia Lee Harrison, his co-worker at a Popeyes fast-food restaurant in Pensacola. He also brought the case to the U.S. Supreme Court, leading to the justices striking down Florida’s death penalty earlier this year in Hurst v. Florida.

The justices wrote in a 5-to-2 ruling that they “conclude that the Sixth Amendment right to a trial by jury mandates that under Florida’s capital sentencing scheme, the jury — not the judge — must be the finder of every fact, and thus every element, necessary for the imposition of the death penalty,”

They also said that if lawmakers change the statute to require unanimous juries to agree on death sentences, this could keep capital punishment afloat in the state and would “dispel most, if not all, doubts about the future validity and long-term viability of the death penalty in Florida.”

In a dissenting opinion, Justice Charles T. Canady, joined by Justice Ricky Polston, said the other justices “fundamentally” misunderstood the U.S. Supreme Court’s ruling in January and said they are “unnecessarily disrupting the administration of the death penalty in Florida.”

[Supreme Court Justice Breyer: California embodies the death penalty’s ‘fundamental defects’]

Hurst’s death sentence was vacated Friday by the court and his case remanded for a new penalty phase. However, while Hurst had argued he should automatically be given a life sentence based on the higher court’s January ruling, the Florida Supreme Court disagreed with that on Friday.

A group of high-profile legal figures and organizations in Florida — including three former chief justices of the Florida Supreme Court — argued that people sentenced under the old statute should be resentenced to life in prison. Florida Attorney General Pam Bondi’s (R) office has argued against this and said that the higher court’s ruling only affected “a portion” of the sentencing statute, rather than the entire death penalty.

Hurst and the advocacy group had pointed to a Florida law stating that people on death row must be given life sentences if the death penalty is deemed to be unconstitutional. The Florida Supreme Court, siding with state officials, said the law didn’t apply to Hurst because the U.S. Supreme Court’s ruling did not broadly strike down the death penalty itself.
Florida Gov. Rick Scott (R), who signed the new law earlier this year. (Joe Raedle/Getty Images)

In addition, the Florida Supreme Court handed down another ruling regarding the state’s new death penalty law on Friday — this one focusing on what happens to pending cases where the death penalty might be sought.

In that case, Perry v. Florida, the justices declared that the updated death penalty statute could not be constitutionally applied to such prosecutions because it does not require unanimous juries.

A spokesman for Bondi said her office was still looking over the ruling handed down Friday.

“We are reviewing the Florida Supreme Court ruling, but in the meantime Florida juries must make unanimous decisions in capital cases as to the appropriateness of the death penalty,” the spokesman said.

The office of Florida Gov. Rick Scott (R) was also reviewing the ruling, a spokeswoman said Friday afternoon.

[For the first time in almost 50 years, less than half of Americans support the death penalty]

“Florida, with its non-unanimous jury requirement, has seen more death sentences reversed than any other state,” Howard Simon, executive director of the American Civil Liberties Union of Florida, said in a statement. “Racial disparities, over-zealous prosecutors and a lack of resources for defense counsel continue to plague death penalty cases. … But the unanimity issue was just one aspect of a crumbling death penalty system which is getting harder every day to justify.”

The decisions in Florida came as the death penalty nationwide continues to decline, with fewer executions and death sentences from coast to coast.

While some states have struggled to obtain the drugs needed to carry out lethal injections, others have put executions on hold because of court rulings or because of ongoing reviews prompted by mistakes in their processes. And a poll recently found that for the first time in more than four decades, American support for the death penalty dropped below 50 percent.

Even as a declining number of states carry out executions, Florida is among the last bastions of capital punishment. Florida has carried out at least one execution each year since 2008, joining only Texas on that list, according to records kept by the Death Penalty Information Center. The state’s death row is also larger than that of any state other than California, which has not carried out an execution since 2006.

Since the U.S. Supreme Court ruling regarding Florida in January, questions have arisen about whether it was retroactive and would lead to hundreds of death-row inmates receiving life sentences. During a hearing in the Hurst case in May, some of Florida’s justices expressed concerns about whether the state’s rewritten sentencing statute provided constitutional protections to people facing potential death sentences.

“The Florida Supreme Court’s ruling that jury recommendations for the death penalty must be unanimous is a long overdue recognition of the state’s fatally flawed capital punishment regime,” Mary Anne Franks, a professor with the University of Miami School of Law, said in a statement Friday.

The uncertainty had extended into Alabama, which allows judges to overrule jury recommendations. An inmate there had argued earlier this year that Alabama’s system was “virtually identical” to the one in Florida, but the U.S. Supreme Court denied his appeals and he was executed in January.

Alabama’s Supreme Court ruled last month that the state’s death-penalty system was constitutional and unaffected by the ruling that struck down Florida’s old statute earlier this year.

Faith Community Responses to the Death Penalty


Inspired by a suggestion and some ground work laid by Rev. Emory Hingst, several TCADP members put the finishing touches on a booklet of  statements on the death penalty from approximately twenty different faiths.  Nancy Smith Fichter and Robert Fichter worked to get as many statements as possible and to obtain the most current available.  We printed 350 booklets and are making sure that every member of the Florida Legislature, Governor Rick Scott, and Attorney General Pam Bondi, all have a copy.  Click the link to download a copy of this booklet published by TCADP as part of our lobbying effort.

Faith Comments 2-4-13



The Death Penalty: Evolving Issues in Florida

The Florida State University Center for the Advancement of Human Rights & the American Bar Association present:The Death Penalty: Evolving Issues in Florida

A two-hour forum that will include perspective and commentary from FSU President Emeritus, former Dean of the College of Law and former American Bar Association President Talbot “Sandy” D’Alemberte; former Florida Supreme Court Justice Raoul Cantero; 2nd Judicial Circuit Judge Janet Ferris (retired); 18th Judicial Circuit Judge O.H. Eaton (retired) and former member of the ABA Florida Death Penalty Assessment Team; Harry Shorstein, former Fourth Continue reading ‘The Death Penalty: Evolving Issues in Florida’ »

Florida’s Catholic bishops repeated their plea for Gov. Rick Scott ….

Travis Pillow writes in the Florida Independent that Florida’s Catholic bishops repeated their plea for Gov. Rick Scott to call off the execution of Manuel Valle, the subject of Scott’s first death warrant.

Death Penalty, Still Racist and Arbitrary

Op-Ed Contributor, New York Times

Published: July 8, 2011, Houston
LAST week was the 35th anniversary of the return of the American death penalty. It remains as racist and as random as ever.
Several years after the death penalty was reinstated in 1976, a University of Iowa law professor, David C. Baldus (who died last month), along with two colleagues, published a study examining more than 2,000 homicides that took place in Georgia beginning in 1972. They found that black defendants were 1.7 times more likely to receive the death penalty than white defendants and that murderers of white victims were 4.3 times more likely to be sentenced to death than those who killed blacks. Continue reading ‘Death Penalty, Still Racist and Arbitrary’ »

Commission on Capital Cases gets put to sleep ….


A commission established by the Florida Legislature almost 15 years ago to monitor the administration of justice in death penalty post-conviction proceedings has itself been sentenced to death.

The unintended consequences may be significant.

The Commission on Capital Cases, a relatively obscure entity, was abolished earlier this month purportedly to “save” $400,000 in related costs. Among its tasks was to receive public input, and advise and make recommendations to the governor, Legislature and Florida Supreme Court.

The current slate of commissioners, a Republican and a Democrat from the Senate and the House, a retired District Court of Appeal judge and a former county court judge, seemed poised to play a more active role than their immediate predecessors.

However, the Florida Senate adopted a relatively low-profile and late-emerging House conforming bill during the final hours of the 2011 regular legislative session without deliberation.

Death Penalty Information Center report

On December 21, the Death Penalty Information Center released its latest report, “The Death Penalty in 2010: Year End Report,” on statistics and trends in capital punishment in the past year.  The report noted there was a 12% decrease in executions in 2010 compared to 2009 and a more than 50% drop compared to 1999. DPIC projected that the number of new death sentences will be 114 for 2010, near last year’s number of 112, which was the lowest number since the death penalty was reinstated in 1976. Death sentences declined in all four regions of the country over the past ten years, with a 50 percent decrease nationwide when the current decade is compared to the 1990s.  Only 12 states carried out executions in 2010, mostly in the South, and only seven states carried out more than one execution. Texas led the country with 17 executions, but that was a significant drop from last year.  The number of new death sentences in Texas this year was 8, a dramatic decline from 1999 when 48 people were sentenced to death.  Since the death penalty was reinstated in 1976, 82% of the executions have been in the South. California has not had an execution in almost 5 years, and the same is true for North Carolina, Maryland, Pennsylvania, and many other states that rarely carry out the death penalty.  “Whether it’s concerns about the high costs of the death penalty at a time when budgets are being slashed, the risks of executing the innocent, unfairness, or other reasons, the nation continued to move away from the death penalty in 2010,” said Richard Dieter, DPIC’s Executive Director and the report’s author.

Practicing Medicine on Death Row

Thursday 09 December 2010

by: Robert Wilbur, t r u t h o u t | News Analysis

Practicing Medicine on Death Row ( Edited: Jared
Rodriguez / t r u t h o u t)

Execution by lethal injection has shone a harsh light on the complicity
of health professionals – physicians, nurses and paramedics – in
carrying out capital punishment. In a 2001 survey in the prestigious
journal, Archives of Internal Medicine, an astonishing 41 percent of
physicians surveyed said that they would assist or even carry out an
execution by lethal injection and there is little evidence that the
percentage has changed significantly since then. Deborah W. Denno JD,
PhD, a leading scholar of death penalty litigation at the Fordham
University School of Law in New York City, remarked that physician
participation in executions is more prevalent than one might think,
although exact numbers are not available because of the secrecy
surrounding executions. And this does not even include the nurses and
paramedics (also known as Emergency Medical Technicians or EMTs) who
head up the execution teams in many states. Interestingly, the
leadership of several major organizations have taken a more enlightened
view on executions than many of their members.
Continue reading ‘Practicing Medicine on Death Row’ »

Restoring fairness to the death penalty

Daniel Ruth St Petersburg Times Correspondent
Restoring fairness to the death penalty,
In Print: Tuesday, November 30, 2010
Imagine lying on a gurney, a needle inserted in your arm. The clock ticks toward the appointed hour. In minutes you’ll be — dead.
The only thing standing between your last breath and a reprieve is the U.S. Supreme Court. Maybe you are guilty of your crimes. Then again, maybe you’re not. And maybe nobody cares.
At a moment like this, that person facing society’s ultimate sanction should have at the very least an expectation he will get a fair shake from the judicial system. After all, once the switch gets thrown, there are no mulligans on death row. Continue reading ‘Restoring fairness to the death penalty’ »

State must act to fix flaws in the death penalty

ABA Forum in Tallahassee with the Florida State University Center for the Advancement of Human Rights.

My View essay in October 30th, 2010 edition Tallahassee, Democrat

Raoul G. Cantero III and Mark R. Schlakman

our years ago, the American Bar Association released a comprehen­sive Florida Death Penalty Assessment Team report that raised serious concerns about the state’s death penalty process. Since then, with few exceptions, state government has done little to remedy problems identified in the report.

To conduct the assessment, the ABA assembled a diverse and highly qualified eight member team to work in collaboration with its Washington, D.C. based staff.

The objective was to ensure that prosecutorial, defense, judicial, academic and other relevant perspectives were adequately represented when assessing Florida’s death penalty process.

The team resolved at the outset that its findings and recommendations had to be unanimous to be included in the report. Put simply, the report’s findings and recommendations were intended to improve the administration of justice in Florida and promote fairness and accuracy in our criminal-justice system without regard to ones views on capital punishment.

Among the key findings was that death penalty defen­dants often receive abysmal legal representation.

The report makes sever­al related recommendations, including reinstating the Capital Collateral Regional Counsel office in the north­ern region of Florida (it was disbanded within the context of a still ongoing pilot project that relies on private registry counsel). These private law­yers generally don’t specialize in capital defense work nor do they benefit from the supervision and support available to CCRC lawyers in central and south Florida, and they typically receive only nominal compensation for their efforts. Continue reading ‘State must act to fix flaws in the death penalty’ »