Unanimity essential in death penalty

In January — on the opening day of the 2016 state legislative session — the Florida Senate Committee on Criminal Justice convened a workshop at the Capitol to begin the work necessary to respond to the U.S Supreme Court’s recent decision in Hurst v. Florida, which struck down Florida's capital case sentencing process.

As many may now be aware, in Hurst the nation's high court held that Florida's sentencing scheme violated the Sixth Amendment because juries, not judges, must determine whether a sufficient number of aggravating circumstances are present to impose a death sentence.

After hearing oral arguments on February 2 regarding the extent to which Hurst should apply, the Florida Supreme Court granted a stay in a case with a pending death warrant and an execution scheduled for February 11. That decision may affect the nearly 400 prisoners on Florida's death row.

Not surprisingly, the state argued for narrow application and the death row inmate’s lawyer argued that Hurst should be applied broadly since Florida's sentencing scheme was declared unconstitutional. The fact that the court issued an indefinite stay wasn’t necessarily a surprise after the justices seemed to struggle with their prospective decision.

Later that same day, the House Criminal Justice Subcommittee approved a bill to address Hurst. The Senate Criminal Justice Committee approved its own bill several days later. One key difference is that the House bill requires only 9 of 12 votes for capital case juries to recommend death. The Senate bill essentially incorporates the Florida Supreme Court’s strong recommendation to the Legislature back in the 2005 case of State v. Steele, to require unanimity for such purposes.

As the Court noted in Steele, Florida is the only state among 31 remaining death penalty states that allows juries to render advisory verdicts involving both the presence and sufficiency of aggravating circumstances and recommendations of death by simple majority votes after a trial resulting in conviction, which requires a unanimous jury.

The Senate’s initial workshop panel was comprised of a diverse group of subject matter experts and stakeholders, including the executive director of the Death Penalty Information Center in Washington, DC, a retired circuit court judge regarded as one of Florida’s foremost authorities on capital case sentencing, the solicitor general from the attorney general’s office who argued Hurst on behalf of the state before the U.S. Supreme Court, a state attorney, a public defender, other representatives from the criminal defense bar and The Florida Bar’s Criminal Law Section.

Scott Sundby from the University of Miami School of Law was among those who appeared before the House Criminal Justice Subcommittee. His compelling research indicates that if unanimity is required, more rigorous deliberations and analysis ensue, and that jurors tend to feel a greater degree of responsibility for their votes. Moreover, when nine or more jurors favor a death sentence, the likelihood of achieving unanimity is greater when a jury is so charged, which also refutes a common misconception that prior votes involving specific cases or the overall frequency of unanimous penalty phase jury votes have any meaningful bearing.

An American Bar Association report in 2006 incorporated issues raised in Ring and Steele along with a wide range of other significant concerns involving the fairness, accuracy and impartiality of Florida's death penalty process, including the implications of racial bias which has generated additional visibility recently – it took no position on capital punishment.

In 2013, the Florida Bar Board of Governors adopted a position in support of state officials conducting a comprehensive review of Florida's entire death penalty process by all branches of government which it renewed last year. It was based on a pre-existing position adopted by its Criminal Law Section that is comprised of judges, prosecutors and criminal defense lawyers. Essentially, no such review has been conducted in Florida. Like the ABA report, the Bar’s position relates to the fairness, accuracy and impartiality of Florida’s process irrespective of one’s views on capital punishment.

While the U.S. Supreme Court didn’t specifically address unanimity, justice would be well-served if the Legislature, when addressing the constitutional infirmities specifically raised in Hurst, were to require unaniminity for recommendation of death and respond favorably to The Florida Bar's call for a comprehensive review. It would also thereby avoid the possibility that the Legislature will once again be required to retool Florida’s capital sentencing scheme to bring Florida in line with nearly every other capital punishment state in that regard.

This story was originally published February 14, 2016 at 2:00 PM with the headline "Unanimity essential in death penalty."