Bob Sparks: U.S. Supreme Court adds to Legislature’s “to do” list

On Tuesday night, the U.S. House and Senate gathered in a joint session to hear President Barack Obama deliver his final State of the Union address. Tuesday morning, the Florida House of Representatives and Senate also convened in joint session for Gov. Rick Scott’s State of the State remarks.

These speeches normally provide a roadmap for the president and governor’s vision for the coming year and beyond. They should provide a “to do” list for Congress and the Legislature.

Shortly before Scott entered the House Chamber, the U.S. Supreme Court added a significant item to the Legislature’s “to do” list. It had absolutely nothing to do with jobs.

The Court held in Hurst v. Florida that Florida’s practice of relegating juries to adviser status in death penalty sentencing violates the U.S. Constitution. The 8-1 ruling thankfully deals a final blow to what some describe as frontier justice. Only Justice Samuel Alito dissented.

Timothy Lee Hurst was convicted of murdering Cynthia Harrison in 1998. After convicting Hurst, the jury recommended death by a 7-5 vote.

Judge Joseph Tarbuck gave “great weight” to the recommendation and sentenced Hurst to death. Among the states with the death penalty, only Florida gives a single judge the final say.

Justice Sonia Sotomayor, writing for the majority, said that empowering individual trial judges with the exclusive power over whether a person lives or dies violates the Sixth Amendment. It makes little sense for trial juries to have the final say between guilt and innocence only to become a blue ribbon commission when it comes to sentencing.

Florida’s practice flies in the face of a U.S. Supreme Court ruling that set the standard. Ring v. Arizona, decided in 2002, gives defendants the “right” to have a jury determine whether they will be sentenced to death.

Tuesday’s ruling overturns the Florida Supreme Court, which ruled against Hurst, 4-3, in 2014. In a dissent, FSC Justice Barbara Pariente correctly wrote that she and U.S. Supreme Court Justice Antonin Scalia were of like mind when it comes to the role a jury must play.

It seems odd that Pariente was in sync with Scalia, while her more liberal colleagues Fred Lewis and Peggy Quince voted with conservative justices Ricky Polston and Charles Canady to deny Hurst’s appeal. It is past time to join the other states and come in line with Tuesday’s decision from a right-of-center court.

Speaker Steve Crisafulli said the timing of the ruling is “impeccable.” Whether he was totally serious, fixing Florida’s death penalty process was no longer something they may do, but shall do.

What if this decision came on, let’s say, June 15? This would have required a special session. After last year’s adventures, who would want that?

The Court’s timing gives the Legislature an entire session to deal with it. Meanwhile, two pending executions are likely to be postponed.

Once trial juries are provided with their proper authority, the decision to send a defendant to death row should be the will of all 12 jurors. Recommending death, where a majority now suffices, is one thing. Condemning someone to death should require a unanimous decision by the jury, just as guilty verdict requires unanimity.

Two of the most persistent voices on this issue are former Florida Supreme Court Justice Raoul Cantero and Mark Schlakman of Florida State University’s Center for the Advancement of Human Rights. They have argued for years that one can favor the death penalty, but the hurdle should be high.

It is clear the Legislature has placed this issue as a low priority in the past. The Supreme Court has provided the required urgency.

For several sessions, Sen. Thad Altman has put forward a bill that would require unanimous jury votes just to recommend death. Last year, it actually cleared the Criminal Justice Committee by a unanimous vote and died in the Judiciary Committee.

On the day of the Supreme Court decision, Altman filed Senate Bill 330. It is a safe bet that it will get more thorough consideration now.

The Legislature can keep the requirement at a simple majority, but condemned prisoner will appeal and probably win. The Supreme Court will no doubt again strike down Florida law.

Or, the Legislature could require a unanimous jury decision and be certain the condemned person fully fits the profile of an individual deserving of the punishment. In a world where problem-solvers are golden, a dose of problem prevention is the right prescription.

***

Bob Sparks is a business and political consultant based in Tallahassee and former Director of External Affairs for the Florida Attorney General. Column courtesy of Context Florida.