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A new state law lowering the number of jurors required to recommend death sentences has spurred a rash of litigation, triggered conflicting judicial rulings and infused an additional level of uncertainty in capital cases.
News Service of Florida
A new state law lowering the number of jurors required to recommend death sentences has spurred a rash of litigation, triggered conflicting judicial rulings and infused an additional level of uncertainty in capital cases.
The changes have caused what numerous attorneys called “chaos” in the death-penalty system.
The law allows death sentences to be imposed based on the recommendations of eight of 12 jurors, an easier threshold than a previous requirement of unanimous jury recommendations. The change — prompted by Parkland Stoneman Douglas school shooter Nikolas Cruz receiving a life sentence after a jury did not unanimously recommend death — gave Florida the lowest death penalty jury standard in the nation.
Allowing 8-4 recommendations is the latest in a series of changes in the capital-sentencing process since a 2016 U.S. Supreme Court decision in a case known as Hurst v. Florida. The ruling found that the state’s death-penalty process was unconstitutional.
In October 2016, in the similarly named case of Hurst v. State, the Florida Supreme Court interpreted and applied the U.S. Supreme Court ruling and said unanimous jury recommendations were required. The Legislature responded in 2017 by putting such a unanimous requirement in law.
Amid uncertainty over whether the unanimity requirement should be applied retroactively to older cases, justices ordered re-sentencing for about 150 Death Row inmates who were sentenced based on recommendations by non-unanimous juries. Before 2016, inmates could be sent to Death Row based on majority — or 7-5 — jury recommendations.
About 90 re-sentencing proceedings were completed under the unanimity requirement before this year’s law went into effect. More than three-fourths of those proceedings resulted in life sentences, with prosecutors often not asking for the death penalty in the re-sentencings.
When Gov. Ron DeSantis signed the 8-4 law this spring, nearly five-dozen Hurst re-sentencing cases were pending. That has led to disputes about which standard should apply.
“Undoubtedly, the new statute will plunge Florida’s death-penalty system into further instability and chaos,” Maria DeLiberato, executive director of Floridians for Alternative to the Death Penalty, told The News Service of Florida. “This knee-jerk change, in an understandably emotional case (the Cruz case), is causing complete destabilization of Florida’s death penalty.”
The Legislature approved the change after an ideological shift in recent years on the Florida Supreme Court. Shortly after DeSantis took office in 2019, he appointed justices who established a conservative majority. The court in 2020 reversed course on the death penalty and said unanimous jury recommendations were not necessary.
The unanimity requirement remained on the books, however — until this spring, when state lawmakers passed the law responding to the Cruz life sentence. DeSantis, who championed the change to a lower standard, signed the legislation on April 20.
The change is affecting Death Row inmates preparing for re-sentencings because of the Hurst decision. The unanimous standard was in place when the re-entencings were ordered, leading their attorneys to argue it should continue to apply in the cases.
The new law also is having an impact on cases involving defendants accused of committing murders before DeSantis signed the law. Their attorneys also maintain the 8-4 threshold should not apply retroactively. The dispute over applying the 8-4 standard, in part, involves what is known as the “ex post facto” clause in the state and federal constitutions.
Defense attorneys contend that applying the new standard to cases initiated before April 20 would violate the ex post facto clause because the standard represents a substantive change in the judicial process.
Prosecutors, however, maintain that the lower threshold amounts to a “procedural” change and therefore should apply in such cases.
Judges — including in the same judicial circuit — are divided on the issue. In the 10th Judicial Circuit, Judge Kevin Abdoney last month rejected prosecutors’ request to apply the 8-4 standard in the sentencing of Bryan James Riley, who was charged with four counts of first-degree murder in September 2021. Abdoney found that the new law “moved the goalposts” on the state’s death-penalty process.
“In the same stroke of the pen, the Legislature
