If the question were asked whether the law should provide more safeguards before convicting someone of theft or before sentencing a person to death, everyone would of course urge the greatest caution before taking someone’s life. Yet the Florida Legislature is considering doing just the opposite. While it takes a unanimous jury to convict for a crime like shoplifting, a proposed law would allow a person to be sentenced to death even though some jurors harbored grave doubts that death was the proper verdict.
The Legislature is currently writing a new death penalty statute because the U.S. Supreme Court struck down Florida’s old law. The Legislature had refused to change the prior law despite courts and commentators for over a decade warning that Florida’s death penalty scheme was unconstitutional.
The Supreme Court finally pulled the Legislature’s head out of the sand by an 8-to-1 decision. To have a sense of just how mistaken the Legislature was in thinking the prior statute was constitutional, for eight justices (including the late Justice Scalia) to agree to reverse a death penalty is like Congress passing a bipartisan resolution heralding Obamacare as the greatest health reform law ever.
Rather than writing a constitutional statute that would require a unanimous jury, however, the Legislature is looking to “compromise” by allowing a death sentence by a 10-2 vote. If the law is passed, Florida will cut right back to the head of the line as having the statute most likely to be struck down by the Supreme Court. Legislators have been quoted as saying the bill will be “more constitutional.” But here’s the rub, and it is a huge one — the Supreme Court does not grade on a curve or give credit for effort; if a statute now receives a D+ instead of an F, it is still a failing grade and still unconstitutional, and the law will be sent back to be done over until the state gets it right.
We should care deeply that the Legislature may pass a statute that invites another constitutional crisis. As taxpayers, this means every death sentence imposed between the passage of the law and the court striking it down will be tossed out. Given that each death sentence costs the state millions compared to a life sentence, the passage of the statute will have wasted millions in tax dollars. And that does not even begin to account for the emotional costs to the victim’s survivors, who may have to go through a whole new trial on the death penalty after the reversal.
One keeps hearing about Ted Bundy, because his jury returned a death sentence by a 10-2 vote. First of all, it is interesting that the prosecutors in Bundy’s case offered him a plea deal in return for life sentences, so the very “poster child” of where a life sentence would have been a grave injustice is one in which the prosecutors themselves thought a life sentence acceptable.
More fundamentally, the argument ignores how juries deliberate. The Capital Jury Project, a nationwide study funded by the National Science Foundation, has found that where a jury had 10 jurors casting a vote for death on the first ballot, the jury eventually returned a death sentence in 95 percent of the cases if allowed to deliberate all the way to a unanimous verdict. In other words, the odds are extremely high that if the Bundy jury had been told that they had to come to a unanimous verdict, the two jurors who under the old system could just vote “life” and go home, eventually would have agreed death was appropriate.
But let us assume that one or two jurors refuse to agree with the jurors who want a death sentence — how is that an injustice? All that says is that among 12 jurors fairly chosen (and one can serve on a capital jury only if you support the death penalty as a legitimate punishment), several of our fellow citizens disagreed with the state that someone deserved to die and instead should spend the rest of their life in prison (the only other sentence possible).
Instead of passing a law that places a ticking constitutional time bomb in a statute meant to fix Florida’s death penalty scheme, we should embrace one of our most cherished legal protections, the unanimous jury, and honor what the framers of the Constitution intended.
Scott E. Sundby teaches law at the University of Miami. He is author of “A Life and Death Decision: A Jury Weighs the Death Penalty.”