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Julie Delegal: Legislature’s death penalty “fix” is flawed

The Florida Senate has the chance to repair the state’s death penalty statutes in a way that won’t invite years of litigation. Last month, the U.S. Supreme Court declared Florida’s death penalty procedures unconstitutional. Until the Legislature acts, the state’s prosecutors have no legal avenue for pursuing death penalty cases.

House Bill 7101 is a good beginning toward fixing what’s broken. But unless amended in the Senate, the bill may not go far enough to meet the requirements of the Sixth Amendment, which provides for trial by jury.

Justice Sonia Sotomayor wrote on behalf of the majority in Hurst v. Florida: “The Sixth Amendment 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.”

In Florida, capital cases entail a “penalty phase” after a defendant is found guilty of first-degree murder.

Under the old law, Florida juries could recommend the death penalty by a simple majority vote, leaving the judge to make the final sentencing decision.

Jurors could consider aggravating circumstances, facts that made the murder more heinous and thus justified the death penalty. They also could consider mitigating circumstances, facts about the defendant’s life, for example, that would argue against imposing capital punishment.

The U.S. Supreme Court rejected the “jury recommendation” model of sentencing because Florida law left open the possibility that the facts that swayed jurors to recommend death may not match the facts the judge considered before imposing a sentence. The court said in effect that juries, not judges, should have the last word on the facts that affect sentencing a defendant to death.

To repair Florida law, the House passed a bill that would require a minimum jury vote of 10-2 to recommend death, along with unanimous (12-0) agreement on at least one aggravating factor.

But as the bill is now written, the act of weighing mitigating versus aggravating circumstances goes back to the judge.

And these considerations are not objective math problems. It’s not as if jurors can assign a point value to being abandoned by parents and abused in foster care, or points that measure the depravity of murdering a disabled person.

Weighing mitigating versus aggravating factors is a subjective, human question. It’s plausible that jurors could agree that an aggravating factor exists, but then disagree as to whether mitigating factors outweighed the aggravating ones.

When the law tells them they need merely vote on their final sentencing recommendation, rather than deliberate, it stunts the jury’s role.

Studies have shown that jurors spend much more time on an issue — and probe more deeply — if they’re required to be unanimous. Simply casting a vote, on the other hand, often prevents jurors from changing each other’s minds.

While the movie “Twelve Angry Men” is fictional, the difficulty it portrays in the consensus-building process is not. Juror No. 3, played by Henry Fonda, starts out as the only juror who believes the defendant is innocent. By the end of the movie, with lots of argument, discoveries and discussions in between, the jury unanimously acquits the defendant.

It’s the stuff in between that matters — the human elements of outrage and compassion that can’t be boiled down into a formulaic equation.

Ted Bundy and Eileen Wournos were executed after split jury votes. We will never know what would have happened in those cases if the jurors had been required to deliberate.

The majority voters may well have convinced the minority voters of their opinions, if the law had required them to do so. It might have taken a longer; it might have been a little harder. But it would have ultimately been their decision, and not the decision of a judge.

The simple fix is for the Senate to amend the House bill to require not only unanimity on a single aggravating factor, but also unanimity in the weighing of all the facts. Such an amendment would match Justice Sotomayor’s language in Hurst, in both letter and spirit.

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Julie Delegal, a University of Florida alumna, is a contributor for Folio Weekly, Jacksonville’s alternative weekly, and writes for the family business, Delegal Law Offices. She lives in Jacksonville, Florida.

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