In its Hurst versus Florida ruling, the US Supreme Court found Florida’s death penalty sentencing scheme unconstitutional. Now it’s up to the Florida Legislature to fix this system, but the question is how.
Currently, juries weigh aggravating and mitigating factors in order to recommend death. But judges can override that decision, which the High Court says violates the right to a trial by jury. Now lawmakers must address the Hurst ruling, but some experts say the whole system needs an overhaul. Mark Schlakman represents the Center for the Advancement of Human Rights at Florida State.
“Consider the Florida Bar Board of Governors’ position which is similar to the Criminal Law Section position, calling for a comprehensive review of Florida’s entire death penalty process by all branches of government, which touches upon everything from racial and geographic disparities, socioeconomic disparities,” he said.
In the wake of the Hurst ruling, the House and Senate are offering two different solutions. Both chambers say juries should agree unanimously on aggravating factors for death eligibility. But the chambers diverge when it comes to the death verdict. The Senate’s bill requires a unanimous jury to recommend death. Death penalty expert Robert Dunham says non-unanimous juries result in a disproportionate number of death sentences.
“Last year, at a time in which new death sentences in the United States were at historic lows, we had 13 death sentences coming out of Florida and Alabama that were the product of non-unanimous juries. That was 27% of all the death penalties nationwide,” he said.
According to the Death Penalty Information Center, Florida is one of only three states that does not require a unanimous jury verdict in capital cases. Requiring only 7 out of 12 jurors, Florida’s threshold is the lowest in the nation. The Hurst ruling does not address the issue of non-unanimous jury votes. But experts say being so outside the mainstream exposes Florida to further litigation. Prosecutor turned lawmaker Senator Rob Bradley of Orange Park wants the state to evolve with the rest of the country.
“I support the death penalty and I’m unapologetic about that. But I also have a duty to craft laws that will survive constitutional scrutiny,” he said.
While many defense attorneys stand by the Senate version, prosecutors like 5th Circuit State Attorney Brad King side with the House bill. The House’s measure only requires nine jurors to recommend death. Here’s Sen Bradley and Brad King going toe to toe in a recent committee hearing.
"Is there any that have 9-3 or less in the state of Florida... I mean in the country?" Bradley asked.
"I would say no with this caveat: our system is not particularly the same system’ as everybody else…" King said.
"Right, ours is unconstitutional," Bradley interjected.
Brad King and other prosecutors argue that requiring a unanimous jury vote would enable a single juror to hijack the decision, perhaps on moral grounds. Juan Melendez has another fear: more wrongful convictions. Melendez is a death row exonoree, imprisoned for 17 years for a crime he did not commit. Here he is speaking before the Senate Criminal Justice committee.
“You always can release an innocent man from prison, but you can never…and I repeat, you can never release an innocent man from the grave,” he said.
Following Melendez’ testimony, the Senate committee voted the bill forward unanimously. The House bill will get a second hearing Wednesday.