Martin DyckmanFlorida has a new death-sentencing law to replace what the U.S. Supreme Court threw out two months ago. On balance, it’s an improvement.
Jurors must now identify, unanimously, any of the reasons — what the law calls aggravating circumstances — why a person they have convicted of a capital crime should die rather than serve life in prison.
But it requires only 10 of the 12 jurors to agree that the defendant should die. That’s better than the old law, which let as few as seven recommend death and left the actual decision to the judge. The new law specifies life if there are not at least 10 votes for death. And the judge can still choose life even if the jury recommends death.
So there should not be as many new death cases for the state Supreme Court to review. From 2000 through 2014, in nearly half the appeals it received, fewer than 10 jurors had voted for death. (The court affirmed most of those sentences.)
That doesn’t necessarily predict that jurors will continue voting the same way. Research suggests they’ll be taking their decisions more seriously under the new law.
The larger question is whether there will be any executions in the near future, if ever.
One reason is that Florida remains an “outlier,” as the lawyers put it, along with only Alabama and Delaware, in not requiring a unanimous jury recommendation.
State prosecutors insisted on that, warning that a single “rogue” juror might prevent the execution of a notably loathsome killer.
But in winning that battle, they may have lost the war. That hypothetical rogue juror could achieve the same result simply by refusing to agree to the finding of any aggravating circumstance.
The first person condemned by less than a unanimous recommendation is sure to appeal on that issue. The law also makes semantic changes in how to weigh the reasons for and against execution, and those too will be grist for the appeal mill.
Even if the law is upheld, it’s doubtful the new sentencing process can be applied to the 389 people on death row, all of whom –excepting, perhaps, only those who pleaded guilty or waived jury trials — can claim that the U.S. Supreme Court’s Jan. 12 decision in Hurst v. Florida calls for their sentences to be commuted to life in prison.
Florida’s old law left it to the judge to speculate on what aggravating factors the jury found.
“The Sixth Amendment,” Justice Sonia Sotomayor wrote for an 8-1 majority, “requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.”
But that decision did not actually spare Timothy Hurst, who was convicted of murdering a restaurant co-worker in Pensacola. Instead, it was left to the Florida Supreme Court to decide whether the failure to respect the Sixth Amendment in Hurst’s case — and by implication in all the others — was “harmless error.”
How could any violation of the Bill of Rights possibly be harmless? But that’s the state’s position.
The state Supreme Court will hear oral arguments May 5.
If the attorney general loses on the question of harmless error, the next issue will be on whether Hurst — and by implication all the others — should go before a jury again or be automatically resentenced to life.
There’s a serious issue as to whether the new law could be applied to any murder committed before it was passed. Then there’s the matter of a law the Legislature passed in 1972 on the hunch that the U.S. Supreme Court would strike down capital punishment nationwide — as it did a few months later.
That law, still on the books, provided for life sentences for anyone on death row if capital punishment were declared unconstitutional. Following the U.S. Supreme Court decision that temporarily abolished the death penalty nationwide, life sentences were ordered for 90 men and one woman in Florida.
Hurst’s lawyers contend that the automatic commutation law applies just as much now as it did in 1972. Significantly, the Florida Supreme Court called last week for briefs on that issue.
Florida executed 92 people — with nearly 400 still under sentence of death — under a law that emerged around dawn on Dec. 1, 1972 from the sleep-deprived members of a House-Senate conference committee who were eager to wind up a special session and go home. Although it was radically different from what either house had proposed, both passed it the same day with only three of the 160 members voting no.
The fact that it took nearly 44 years for that law to be found unconstitutional goes to the fundamental difference between law and justice. Law is supposed to serve justice. But sometimes it interferes.
In two earlier Florida cases, the U.S. Supreme Court effectively upheld what it has now found unconstitutional.
“Time and subsequent cases,” Sotomayor wrote, “have washed away the logic.”
Neither of the defendants in those earlier cases was actually executed. But subsequent to their decisions, 80 others were. Think about that.
Posterity will wonder, I am sure, why Florida has continued to perpetuate a practice that has been abandoned by most other civilized countries.
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Martin Dyckman is a retired associate editor of the newspaper formerly known as the St. Petersburg Times. He lives in suburban Asheville, North Carolina. Column courtesy of Context Florida.
