The Florida Legislature got direct but conflicting advice Wednesday on how to fix a death penalty sentencing system ruled unconstitutional by the U.S. Supreme Court.
The Senate Criminal Justice Committee heard testimony from prosecutors, public defenders, retired judges and death penalty experts. All suggested how the state should react to the high court’s Jan. 12 decision in Hurst vs. Florida that said the advisory role juries play in death penalty cases is unconstitutional.
But most testimony focused on an issue that was not part of the court’s decision: whether Florida juries should be unanimous in recommending death sentences. Every expert except state prosecutors urged unanimity, and some warned that without it, Florida’s deeply wounded death penalty law will remain under sustained legal attack.
“This is your opportunity,” said O.H. “Bill” Eaton Jr., a retired circuit judge and nationally recognized death penalty expert. “If you fix those problems, then you’re going to have as good a death penalty as there is in the country.”
Eaton predicted that dozens of Florida inmates sentenced to death in which appeals have not been decided by the Florida Supreme Court will have their sentences reduced to life in prison without parole.
Florida is one of three states that does not require that a jury be unanimous in recommending a punishment of death, and it is the only state that does not require that a jury be unanimous in finding at least one aggravating factor to warrant a death sentence over life in prison.
State Attorney Brad King of the Ocala-area circuit said prosecutors statewide remain opposed to requiring that all 12 jurors be unanimous in supporting a death sentence.
But in a significant policy shift, prosecutors now support changing state law so that at least nine jurors must be required to support a death sentence, and unanimous findings on aggravating factors.
King said a requirement for unanimous jury verdicts in death cases would give a single juror veto power over his 11 colleagues.
“You allow one juror with no contact with the system and with no education in the law … absolute control over what that sentence is going to be,” King testified. “They get to control that decision.”
Public defenders, many of whom oppose the death penalty, support the requirement for unanimity.
Neal Dupree, a state-appointed attorney who represents death row inmates appealing their sentences, urged lawmakers to wait until the Florida Supreme Court takes up the case of his client, Michael Ray Lambrix, who’s sentenced to die by lethal injection Feb. 11.
The state’s high court denied Lambrix’s motion to delay his execution based on the Hurst decision. But justices will hear oral arguments Feb. 2 that Dupree said could provide valuable insight on how lawmakers should proceed.
Florida’s two-stage death penalty system has a guilt phase and a sentencing phase. A defendant who is found guilty cannot be sentenced to death unless the jury finds at least one factor, known as an aggravator, to warrant the ultimate penalty.
Solicitor General Allen Winsor, a lawyer in Attorney General Pam Bondi’s office who unsuccessfully argued the state’s position in the Hurst case, had no recommendations Wednesday.
Legal experts also disagreed on whether the current 15 aggravating factors in Florida’s death penalty law are too numerous and should be reduced. Aggravators include such factors as whether the defendant was on probation, whether the victim was under age 12 or whether the crime was especially vicious and cruel.
Public defenders support reducing the number of aggravating factors and prosecutors oppose changes.
More than a decade ago, the Florida Supreme Court urged the Legislature to require unanimous juries in death cases. But the state took no action, and one expert urged the Legislature to not make the same mistake twice.
“Had the Legislature heeded that warning, we would not be in this posture today,” said Robert Dunham of the Death Penalty Information Center in Washington, D.C. “You can respond narrowly, just to the words in Hurst, or you can respond more broadly to prevent future constitutional problems.”
Two-thirds of the 389 people on Florida’s death row were sentenced by juries that were not unanimous, Dunham said, citing a report in The Villages Daily Sun newspaper. “Those cases are in extreme constitutional jeopardy,” Dunham said.
The five-member Senate Criminal Justice Committee that will craft the first version of a new law is chaired by a strong supporter of the death penalty, Sen. Greg Evers, R-Baker, who promised a quick legislative response.
“It [the law] will definitely change in a way that we think will be more constitutional,” Evers said.
The panel’s other Republican members are Sens Jeff Brandes of St. Petersburg and Rob Bradley of Fleming Island, and the Democrats are Sens. Jeff Clemens of Lake Worth and Audrey Gibson of Jacksonville.
Florida has 389 inmates on death row, but the pace of executions under Gov. Rick Scott has slowed considerably because of the pending Hurst decision. Two inmates were executed last year — the fewest since 2011.
Contact Steve Bousquet at email@example.com. Follow @stevebousquet.