Florida needs a new death penalty

When the U.S. Supreme Court struck down Florida’s death penalty law last month, the state was left without a functioning capital punishment statute. So here’s our modest suggestion: If Florida must have a death penalty — some polls suggest most Floridians don’t want one at all — make sure it can pass constitutional muster, or else prepare for many more years of litigation.

In an 8-1 ruling written by Justice Sonia Sotomayor, with only Justice Samuel Alito dissenting, the court found Florida’s law violated the Sixth Amendment because judges, not juries, make the final decision imposing the death penalty.

Lawyers for the state claimed there were many reasons to uphold the state statute, but Justice Sotomayor dismissed them with one pithy remark: “None holds water.” That’s a message to state lawmakers: Go back to drawing board and come up with a new law that can safely withstand constitutional scrutiny.

At a minimum, such a law must require jurors’ unanimity in death penalties. This was not addressed explicitly by the court, but common sense suggests that if the new statute lacks this crucial rule, the nation’s highest court will eventually turn thumbs-down again on the Florida death penalty statute.

At present, among the 31 states that allow capital punishment, only Alabama and Delaware do not require a unanimous jury, and Delaware’s law is under review. Alabama, meanwhile, requires a vote of at least 10 to 2, leaving Florida as the only one needing just a 7-5 majority.

That outlier status is sufficient reason to require unanimity. The failure to require an all-in decision practically invites scrutiny. It’s illogical to require that all jurors agree on a finding of guilt, yet use a lesser standard to decide the fundamental question of life or death. Unanimity by the jury is also the rule in those rare federal court cases involving capital punishment.

Another good reason: Florida has had 23 Death Row exonerations, more than any other state, according to the Death Penalty Information Center, and the Tampa Bay Times found that prisoners sentenced to death on the basis of non-unanimous jury recommendations were more likely to have their cases overturned.

If all that’s not reason enough, here’s another: The Florida Supreme Court suggested in 2005 that lawmakers should impose a unanimity rule on jurors, but the Legislature has ignored this judicial warning for years.

The high court’s rejection of Florida’s statute has thrown the state’s criminal justice process into a tizzy.

First, the Legislature is trying to come up with a viable statute. The House version would require agreement by only nine of 12 jurors on a decision of death. The Senate favors unanimity, which is the safe and logical way to go. The quandary the state is in was illustrated last week when a Miami-Dade judge ruled that prosecutors cannot seek execution for a Miami man convicted of fatally beating another with a baseball bat because the state has no effective law in place.

Meanwhile, the Florida Supreme Court postponed the execution of a convicted double murderer in order to figure out how the Supreme Court’s decision affects inmates on Death Row. Clearly, in those 40 or more cases with an active appeal under way, the death penalty can no longer apply. In light of the Supreme Court’s decision, the safest solution for the Florida high court is to apply the same standard to all of the 389 inmates on Death Row.

This story was originally published February 12, 2016 at 8:07 AM with the headline "Florida needs a new death penalty."