Florida’s death penalty still wrong

Miami Herald Editorial Board

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In a gutsy — and eloquent — decision this week, Miami-Dade Circuit Judge Milton Hirsch declared Florida’s new death penalty law unconstitutional. He became the first judge in the state to do so after the Legislature was forced to overhaul the state’s capital punishment system in March in response to a U.S. Supreme Court decision tossing out the old law.

Problem is, the Legislature came up short.

As a rule, we don’t like to say “We told you so.” But, in this case, we did. It was plainly evident in a reading of Hurst v. Florida that the Supreme Court believed that a unanimous verdict is required when imposing the death penalty. Even so, the Legislature failed to adhere to this principle in crafting a revised version.

In Hurst v. Florida, the court found in January that Florida’s old law violated the Sixth Amendment because judges, not juries, were tasked with making the final decision imposing the death penalty. In an 8-1 ruling, the court said juries must have the final word.

Although it did not explicitly require unanimity, it strongly hinted in that direction. That’s how almost all states deal with the issue, and that’s the safest way to construct a fair and viable death penalty law that can survive a challenge in the courts.

But instead, the Legislature came up with a revision requiring only a 10-2 verdict to impose the death penalty. In terms of ultimately passing constitutional muster, this is tempting fate. The less-than-unanimous requirement may well fail when it comes under federal review.

What impresses about Judge Hirsch’s decision, however, is that it does not rely on the federal requirement, but rather on Florida constitutional law and common law — which is to say, common sense.

In an 18-page decision that cites everyone from Churchill to Blackstone, Judge Hirsch called the principle of unanimity a cornerstone of Anglo-American jurisprudence. The public can support a verdict based on the notion that the jury has spoken — but not in those “as to which the most that can be said is that some jurors have spoken.”

It is not a question of arithmetic, the judge said, but a question of constitutional law and justice. A jury, he pointed out, is the collective conscience of the community. “The verdict is the jury’s pronouncement — not 12 separate pronouncements, but one collective pronouncement.”

It makes no sense, as was repeatedly pointed out during the legislative debate in Tallahassee, that there must be unanimity upon conviction, but not in imposing a death penalty. Or, as Judge Hirsch put it succinctly:

“We will take no Floridian’s liberty upon a less-than-unanimous verdict, although the liberty taken today can be restored tomorrow. We dare take no Floridian’s life upon a less-than-unanimous verdict. The life taken today can never be restored.”

That is particularly true in Florida, which claims the dubious record of 23 death penalty exonerations, more than any other state in the union. If this state’s process in death penalty cases is so clearly flawed, if it has made so many horrible mistakes, why then would legislators make it easier to impose the ultimate punishment by omitting the requirement that everyone on the jury must agree? What’s the point of making it easier? Who benefits and who loses?

The failure to require unanimity has guaranteed that Florida’s death penalty will be the target of appeals and litigation for years to come. The sooner the Legislature can correct its mistake and conform to the judicial principle of unanimity, the better off the state’s criminal justice system will be.