For 13 years, Florida’s death penalty
process has been on thin ice at the U.S. Supreme Court. The Legislature
has pretended not to notice even though the state Supreme Court sent an
early warning.
Now, the ice is cracking.
On Monday, the high court agreed to consider whether Florida’s law conflicts with its 2002 opinion in Ring v. Arizona that the jury, not the judge, must determine the existence of aggravating factors to support a death penalty.
Florida law leaves that to the judge,
along with the power to condemn a defendant even without a unanimous
jury recommendation for death. Only Alabama has a law like that.
Although juries are told they must find
aggravating factors in order to recommend death, there’s no provision
for specifying the factors or even how they voted. The judge is left to
infer what they found.
If the U.S. Supreme Court rules
Florida’s peculiarities to be unconstitutional, many if not most of
Florida’s 393 death row inmates might have their sentences–though not
their convictions–overturned. The case is scheduled for argument during
the court’s term beginning in October 2015.
The court could decide the case on
narrower grounds. Convicted murderer Timothy Hurst, who slashed and
stabbed a restaurant co-worker at Pensacola, is also challenging
Florida’s refusal to have the jury rather than the judge determine
whether he is mentally retarded and ineligible for the death penalty.
Then, too, it takes the votes of only
four justices to accept an appeal. There might not be a fifth to do
anything but uphold Hurst’s conviction and sentence.
For now, however, Florida legislators
who favor the death penalty have a decision to make. Do they enact
legislation to require unanimous jury votes and specific findings? That
would moot the Hurst case with respect to future convictions, but it
might lend strength to his claim. Or do they sit on their hands,
pretending that the situation in Washington isn’t serious?
The moral aspect is a separate and
compelling question. Nearly every other state has addressed it either by
having no death penalty, by repealing it, or by requiring the jury to
be unanimous before a life is taken, which is also federal law.
In 27 of the 31 death penalty states,
according to a Florida Senate staff report, “the jury’s decision to
impose life imprisonment is final and may not be disturbed by the trial
judge under any circumstances.
If jurors don’t have to be unanimous, do
they spend enough time and moral capital on debating life versus death?
A 2006 American Bar Association report cautioned Florida that they
don’t.
In Tallahassee, both the House and
Senate have identical bills to conform to Florida’s procedure by
requiring specific jury findings and a unanimous vote. SB 664 by state
Sen. Thad Altman, R-Rockledge, is on the Criminal Justice Committee
agenda but was passed by Tuesday for testimony on the prison scandals.
It remains on the agenda for next week. House Bill 139, by state Reps.
Javier Rodriguez, D-Miami, and Clovis Watson Jr., D-Gainesville, has yet
to be scheduled by the first of three committees to which it is
assigned. The legislators had filed the same bills last year to no
effect.
“If you want the Supreme Court to invalidate the death penalty, just sit on your hands,” Rodriguez says.
Death row inmates have raised the Ring
decision in scores of unsuccessful appeals to the Florida Supreme
Court, which has never agreed that it applies here. Individual justices
have repeatedly said that it does. When Hurst’s public defenders argued
it last year, the court’s majority said in effect, “That’s our position
and we’re sticking to it.”
But it was a rare split decision, 4-3, in which the minority agreed with Hurst.
“I continue to believe that, in light of Ring,
Florida’s death penalty statute, as applied in circumstances like those
presented in this case where there is no unanimous finding as to any of
the aggravating circumstances, is unconstitutional,” wrote Justice
Barbara Pariente in a dissent signed also by Justices James E. C. Perry
and Jorge Labarga.
The Florida law spells out 16
aggravating circumstances, among them the defendant having a prior
felony conviction or committing the murder in the course of a robbery.
Some can be assumed automatically–for example, conviction of another
crime is a matter of record–but most have to be supported by testimony
for the judge to invoke them.
In Hurst’s sentencing order, as Pariente
pointed out, there were only two aggravators: a murder that was
“heinous, atrocious and cruel” and committed in the course of a robbery.
But although testimony suggested that Hurst had robbed the restaurant,
he wasn’t convicted on any such count, and there was no way to know
whether the jurors believed the killing could also be characterized as
“heinous, atrocious and cruel.”
Because the jury voted only 7-5 for
death, “the slimmest margin permitted,” Pariente wrote, “it is actually
possible that there was not even a majority of jurors who agreed that
the same aggravator applied.”
The Florida law provides for automatic
Supreme Court review of every capital conviction and death sentence.
According to the clerk’s office, of 296 cases heard from 2000 through
2012, only 60–that’s a mere 20 percent–involved unanimous jury death
recommendations. The court upheld 38 of them. In 32 cases, the jury
votes were 7 to 5 and the court sustained only 17, barely half.
In refusing to apply Ring, the
Florida Supreme Court noted in a 2005 case that the U.S. Supreme Court
had upheld the state’s law against challenges of a similar nature. But
those cases came before Ring, and the high court hasn’t spoken on Florida’s situation since.
In the 2005 case, Justice Raul Cantero’s
majority opinion suggested that “in light of developments in other
states and at the federal level, the Legislature should revisit the
statute to require some unanimity in the jury’s recommendations…
“We ask the Legislature to revisit it to decide whether it wants Florida to remain the outlier state.”
That’s apparently what the Legislature did want. If Hurst wins in Washington, chaos in Florida could be their reward.
Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives in western N.C.
