Require unanimity to impose death penalty


More than a year ago on this page, I wrote about two deaths: the slaughter of 9-year-old Jimmy Ryce and the antiseptic, state-sanctioned execution of his killer, Juan Carlos Chavez.

As the lead prosecutor in the case who witnessed Chavez’s execution, I observed that Florida’s lack of juror unanimity in the penalty phase casts Florida as an outlier. About 10 years ago, the Florida Supreme Court, in State v. Steele, detailed the procedures in every death-penalty state and revealed that Florida was alone in not requiring jury unanimity in either finding aggravating factors or recommending a sentence of death.

Its opinion implored the state Legislature to revisit Florida’s sentencing scheme. The Legislature failed to act on the recommendation, and today we find ourselves again in familiar, though, unsettled territory.

The U.S. Supreme Court accepted for review Hurst v. Florida and recently heard the argument. The court was again visiting and reviewing Florida’s capital-sentencing scheme.

Timothy Lee Hurst was found guilty of murder, and the jury recommended the death penalty by a vote of 7-5. The trial court acknowledged the jury’s finding and sentenced Hurst to death. The question before the U.S. Supreme Court is whether, in light of its decision in Ring v. Arizona, Florida’s death-sentencing process violate the Sixth Amendment’s jury trial guarantee or the Eighth Amendment’s prohibition against cruel and unusual punishment.

In deciding Ring v. Arizona in 2002, the Supreme Court held that the Sixth Amendment required that the presence of aggravating factors, which Arizona’s death-penalty sentencing scheme viewed, essentially, as elements of a larger offense, be determined by the jury. The Supreme Court of Florida had previously held that the decision did not apply to and specifically did not require that a jury’s recommendation of death be unanimous. The U.S. Supreme Court’s pronouncement on the necessity of a unanimous jury finding will potentially have a devastating effect on Florida’s death-sentencing approach.

The Florida Legislature had the opportunity to confront this issue and fashion an acceptable resolution. Unfortunately, lawmakers took a pass — again — in its most recent session. This is a disappointing abrogation of responsibility. The Legislature’s failure to act in the wake of State v. Steele has triggered the U.S. Supreme Court’s action and, potentially, the imposition of its own remedy.

While one does not presume to know the mind of the court or the direction it may take, one can question state lawmakers ignoring the opportunity to make a decision by enacting legislation. Who will bear the burden of legislative inaction? Sadly, it will be the families and friends of the victims. By casting even more uncertainty into the process, any trial involving a penalty phase will be subject to reversal. This is intolerable to those who have lost loved ones and already endured a trial and penalty phase and now must endure it all over again.

How long could such uncertainty last? From one year to two years, depending upon how quickly the U.S. Supreme Court rules and how long it would take the Legislature to devise a new sentencing structure.

There is no need to wait. Bills have been filed in both the House and Senate proposing a jury’s unanimous recommendation to impose the death penalty.

Florida should not be an outlier any longer. The Legislature can do the right thing by meeting its obligation to victims’ families and friends. It should remove needless uncertainty from the death-penalty process.

The residents of Florida deserve nothing less.

Michael R. Band is the former chief assistant state attorney.