Florida Changes Its Unconstitutional Death Penalty Process

by | March 4, 2016

By Steve Bousquet and Michael Auslen

Lawmakers have approved a crucial rewrite of Florida's death penalty sentencing law, hoping it passes muster after the current version was recently declared unconstitutional by the U.S. Supreme Court.

The bill, passed overwhelmingly by the state Senate Thursday, now heads to Gov. Rick Scott for his signature.

Florida has the nation's second largest Death Row population with 389 inmates. But executions have been on hold since Jan. 12 when the U.S. Supreme Court struck down Florida's sentencing law as a violation of a defendant's constitutional right to trial by jury because the jury's role was advisory.

The death penalty itself was not deemed unconstitutional, but state lawmakers were forced to rewrite sentencing laws to keep the death penalty as an option for prosecutors.

"We came up with a decision, and now the courts can take into account where we think we should be going," said Sen. Greg Evers, R-Baker, the Senate Criminal Justice chairman.

Florida's new law requires juries to unanimously vote for every reason, known as aggravating factors, to warrant a death sentence. A trial judge must sign a written order confirming those findings.

Prosecutors also must notify defendants before trial that they will seek the death penalty and list the aggravating factors the state intends to prove.

The bill also requires at least 10 of 12 jurors in a capital case to agree on a death sentence, an issue not specifically addressed by the U.S. Supreme Court in its decision in Hurst v. Florida.

Current Florida law allows juries to recommend death on a simply majority vote. The new law will put Florida in line with one other death-penalty state, Alabama. Most states require jury recommendations of a death sentence to be unanimous.

Death penalty foes and defense attorneys, among others, have argued that jury recommendations of death should be unanimous in consistency with jury rulings of guilt or innocence being unanimous. But an attempt earlier this week to amend the bill in the Senate to a unanimous jury recommendation was unsuccessful.

After a brief debate, the Senate passed the House bill (HB 7101) Thursday on a 35-5 vote. The House voted for the fix on a 93-20 vote two weeks ago.

Scott intends to sign the bill into law, a spokeswoman said.

Sen. Thad Altman, R-Melbourne, who opposes capital punishment, was the only Republican to vote against the bill in the Senate. He was joined by Democrats Jeff Clemens of Lake Worth, Bill Montford of Tallahassee, Jeremy Ring of Margate and Geraldine Thompson of Orlando.

Afterward, the Florida Conference of Catholic Bishops said that the rules are not perfect but are a step in the right direction. The conference opposes the death penalty, but since it is allowed, they said, juries should have to be unanimous.

"A 10-2 jury requirement is an improvement over the current scheme that allows a person to be sentenced to death on a recommendation of only a simple majority of jurors," conference executive director Michael Sheedy said in a statement. "There has been progress this year, but there is still room to improve."

Democratic senators said they, too, oppose the 10-2 requirement for jury recommendations, preferring unanimous votes.

That was strongly opposed by prosecutors and quickly rejected by the Florida House in favor of a 9-3 proposal. The two chambers agreed to compromise on a 10-2 vote.

"The jury needs to make this ultimate decision, not the judges," said Sen. Darren Soto, D-Orlando.

Though he'd prefer a unanimous jury, he said at least Florida's "finally not the outlier" by requiring only a majority jury vote.

Sen. Arthenia Joyner, D-Tampa, voted for the bill but predicted that courts will reject it and force the Legislature to make another fix.

"I'm sure that when this issue gets back up in the Florida Supreme Court, we will get back to where we really need to be -- which is a unanimous verdict," Joyner said.

But Evers said the Legislature did what it needed to satisfy the Supreme Court's ruling.

"Everyone talks about future litigation, but the thing about it is the Hurst decision did not specify that you have to have a unanimous jury," he said. "It left that open and up to the Legislature to make a determination."

The Senate vote came the same day as an Alabama court found that state's death penalty sentencing process unconstitutional. Jefferson County, Ala., Circuit Judge Tracie Todd sided with defense attorneys who cited the Supreme Court's ruling in Hurst that juries must make the final sentencing decision.

In Florida, state Supreme Court justices have already halted the executions of two death row inmates -- Michael Ray Lambrix and Mark Asay -- while issues in the Hurst case are worked out.

Information from the Associated Press was used in this story.

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