Florida’s death penalty system, under sustained legal assault for the past year, faces renewed pressure in 2017 that will strain courts, victims and taxpayers in ways sure to rekindle a debate over capital punishment.
A series of federal and state court rulings will bring upheaval to a system long criticized for racial disparities and for seemingly endless and unjust delays. Now the state must confront the enormous impact of a case known as Hurst vs. Florida, in which the U.S. Supreme Court ruled that constitutional rights of defendants were violated because their juries had too little say in recommending sentences of death.
Applying the Hurst case to Florida — the state with the second most death row inmates at 383 — the state Supreme Court decided that about half of those inmates should still face execution.
Those inmates were sentenced before 2002, when another case, Ring vs. Arizona, found that it was unconstitutional for a judge instead of a jury to find the facts necessary to impose the death penalty. At the time, the Florida Supreme Court decided the Ring decision did not apply because Florida had a different sentencing scheme and that in another case, the nation’s highest court upheld the constitutionality of Florida’s system.
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But the other half of the Death Row population — most inmates sentenced after Ring in 2002 — could be resentenced to life without parole, depending on the facts in each case, because they were condemned to die under a law ruled unconstitutional by the Hurst case.
Attorney General Pam Bondi will continue to seek to carry out as many death sentences as possible, arguing that any previous sentencing errors were legally harmless. But as a flurry of post-Hurst appeals clogs the courts, legal experts foresee an expensive and, for the families of victims, agonizingly painful review of as many as 200 cases in which defendants seek sentences of life without parole.
“Two hundred do-overs,” said Robert Dunham of the Death Penalty Information Center, a national group critical of how states, especially Florida, carry out the death penalty. “There are not enough judges, court personnel, prosecutors or defense lawyers to timely move these cases forward.”
Legislature tries again
That’s not all. A pro-death penalty Legislature must fix the law a second time after the Florida Supreme Court struck down as unconstitutional a provision that does not require all 12 jurors to agree on a death sentence when they recommend punishment to a judge who issues the final life-or-death verdict.
Because jury recommendations of death in Florida are usually not unanimous, the practical effect will be more do-overs, with new sentencing hearings in dozens of cases.
Prosecutors will have to track down old trial transcripts and witnesses, and families of victims will have to endure a public spectacle of some of the state’s most horrific crimes a second time.
“It’s an absolute nightmare for these families,” said Bruce Bartlett, the chief assistant state attorney in Pinellas County. “And it’s a logistical nightmare for us as you’ve got to reconstruct all these cases.”
In a 2013 Miami-Dade case in which a jury recommended death by a 9-3 vote, Joel Lebron received a death sentence for orchestrating the kidnapping, gang rape and murder of 18-year-old Ana Maria Angel, who was abducted with her boyfriend while they strolled on South Beach.
The case was so shocking that the trial judge broke down and cried as he sentenced Lebron to death.
Over the past year, the lack of solid legal footing over the death penalty is a source of enduring frustration for Bartlett, 62, who has been prosecuting cases since Florida reinstated the death penalty in 1972.
“We’re walking on eggshells,” Bartlett said. “We haven’t received any guidance from the Supreme Court on how to proceed on these things.”
Bartlett’s office will seek the death penalty for Marco Parilla Jr., a fugitive charged with the murder of Charles Kondek, a Tarpon Springs police officer and father of six children who was shot to death a few days before Christmas two years ago.
Kondek was the first Tarpon Springs officer killed in the line of duty since 1926.
Bartlett said procedural hurdles will delay Parilla’s trial until next summer. By then, he hopes, lawmakers and Gov. Rick Scott will have fixed the law to require a unanimous jury recommendation of death.
Execution by the numbers
Florida is one of 31 states with the death penalty. Since it was reinstated in 1972, 92 people have been electrocuted or executed with lethal chemicals.
A total of 23 defendants have been executed during Gov. Scott’s six-year tenure, more than under any other governor, according to the state Department of Corrections web site.
But it has been almost a year since the last execution at Raiford.
Three convicted murderers joined Florida’s Death Row in 2016, the fewest in any year since 1972 in yet another sign of the legal murkiness of the death penalty in Florida.
The Death Penalty Information Center said the 30 death sentences imposed nationwide in 2016 were the fewest in the modern era of capital punishment in America, after 1972.
Florida has long been an outlier state for not requiring all 12 jurors to agree on a recommendation of death — even though the law requires unanimity for a finding of guilt.
Despite years of criticism from legal experts all across the political spectrum, the Legislature refused again in 2016 to require unanimous jury recommendations in death cases — now the norm in every other death penalty state except Alabama.
Bowing to pressure from Florida prosecutors, the Legislature last spring required at least 10 jurors to agree on a recommendation of death, a change from a simple majority of seven that had been the law for about four decades.
The Senate supported a 12-0 scheme but Bondi and the House sided with prosecutors and the House position prevailed.
With the Legislature’s 10-2 plan facing immediate legal challenge, the use of capital punishment ground to a halt in Florida. Prosecutions slowed trials and Scott stopped signing death warrants.
But critics, including public defenders, said that didn’t go far enough and correctly predicted that the Florida Supreme Court would demand unanimity, which the court did in a decision in November.
Two groups of inmates
What’s also likely to produce a torrent of new appeals is the state Supreme Court’s decision to create two groups of Death Row inmates, one sentenced before the U.S. Supreme Court’s Ring decision of June 24, 2002 and one after, using the ruling as a dividing line.
That demarcation brought a stinging dissent from Florida Supreme Court Justice James Perry, who rebuked his colleagues for using an “arbitrary” date to define constitutional rights and predicted the decision would be struck down.
“The majority’s application of Hurst vs. Florida makes constitutional protection dependent on little more than a roll of the dice,” Perry wrote. “This cannot be tolerated.”
Perry, an African-American, said the death penalty in Florida has a long history of discrimination.
A week after his dissent was released, Perry’s retirement from the court took effect.
Former Florida Supreme Court Justice Harry Lee Anstead, in a recent column in the Tallahassee Democrat, said all 47 inmates who were executed after the Ring decision “have been put to death under an unconstitutional process.”
Anstead wasn’t alone. More than a decade ago, the Florida Supreme Court urged the Legislature to change state law to require unanimous juries to recommend death sentences.
“The Legislature ignored those warnings,” said Dunham of the Death Penalty Information Center.
Now, prodded once again by a state court that some Republican lawmakers say is too activist, a consensus is emerging that without a requirement of unanimity, capital punishment would come to an end in Florida. Most lawmakers don’t want that.
Senate President Joe Negron, R-Stuart, and House Speaker Richard Corcoran, R-Land O’Lakes, both said that a legally defensible death penalty law will be a priority in the upcoming legislative session.
Rep. Chris Sprowls, R-Palm Harbor, a former prosecutor who now chairs the House Judiciary Committee that will be a focal point of the death penalty legal debate, accused the Supreme Court of exceeding its authority in striking down the 2016 law, but in so doing left the Legislature with little choice.
“We have to act,” Sprowls said. “By the time we conclude our business, we have to have a death penalty statute that can be relied upon and that’s legal, so that victims have access to justice.”
Correction: An earlier version of this story misstated the year that Florida reinstated the death penalty.
Contact Steve Bousquet at email@example.com and follow @stevebousquet.