Death penalty should be a unanimous decision by the jury

Back in 1972, Florida rushed to be first in re-enacting a death-penalty statute after the U.S. Supreme Court declared all such statutes unconstitutional because of the arbitrary way in which death sentences were handed down. To quote JusticePotter Stewart’s oft-cited observation, a defendant had about the same chance of being sentenced to die as being struck by lightning.

Florida’s hurried statute was a veritable hodgepodge. One component gave the jury an advisory role. Another provided that the jury should weigh certain aggravating and mitigating circumstances, but lacked any requirement that the jury reveal its findings. Still another provided that the jury’s recommendation need only be by a majority vote. Whatever the majority of jurors recommended could be overruled by the judge.

In the Supreme Court’s Jan. 12 decision in Hurst v. Florida, conservative and liberal justices united in holding, by an 8-1 vote, that this death-penalty scheme violates the core constitutional protection of a trial by jury.

Writing for the court, Justice Sonia Sotomayor explained, “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.”

This is not the first time that the court has invalidated Florida’s death penalty. In 1987, the it declared the state’s jury instructions unconstitutional because those instructions restricted the jury’s consideration to only the statutory mitigating circumstances. That decision resulted in a major change in capital trials. But it came after 17 people had been executed. Defendants who were still alive and were prejudiced by this limitation were granted review.

In 2005, the Florida Supreme Court called upon the Legislature to revisit the death-penalty statute because Florida was the country’s only death-penalty jurisdiction that failed to require jury unanimity. The state court pointed out that when unanimity is required, deliberations are more thorough and reliable. In the decade since, the Legislature has refused to act, and defendants have been executed, even with jury votes of 7-5.

In that same decision, the Florida Supreme Court refrained from asking the

Legislature or trial judges to require that juries reveal their findings making a defendant death-eligible. A decade later, the U.S. Supreme Court has now held Florida’s death-sentencing process unconstitutional because of the lack of jury findings, necessitating that Florida change its statute. Scores of defendants have been executed despite having raised this jury-trial issue; just as it happened in the past with the unconstitutional jury instructions.

The question becomes: What now? For those of us who have litigated capital cases over the years, the knowledge that one person may live and another die based on timing seems every bit as arbitrary as the sentencing process condemned by the Supreme Court in 1972.

Two executions are scheduled in the next two months. As Senate Majority Leader Bill Galvano, R-Bradenton, acknowledged, these executions must be stayed. Lawyers and the court need time to avoid a mistake. The Hurst decision serves as a warning to reevaluate Florida’s death-penalty system. Indeed, Florida Attorney General Pam Bondi has called for revamping the law.

There is an additional point we have to face. Florida, while the outlier in not requiring jury unanimity, leads the nation in wrongful Death Row convictions.

A connection, perhaps?

Death sentences cost $1 million more than lifetime incarceration. So if we are going to go through that expense, shouldn’t we require that death sentences be reliably imposed? State Sen. Thad Altman, R-Rockledge, and Rep. Jose Javier Rodriguez, D-Miami, have again introduced bills that require unanimous written findings and sentencing recommendations from juries before a person may be sentenced to die.

In every other Florida case where there is a right to jury trial — even misdemeanor or minor property disputes — a jury’s verdict must be unanimous. It’s time for our Legislature to adopt these bills and give Florida residents a more reliable death-penalty law.

Karen M. Gottlieb is co-director of the Florida Center for Capital Representation at FIU College of Law.

This story was originally published February 1, 2016 at 8:12 PM with the headline "Death penalty should be a unanimous decision by the jury."