Every time I covered a death penalty trial in Florida–my first was in 1995 where Jeff Ashton was the prosecutor and Belvin Perry was the judge–I was a bit uneasy with their law that allowed a death recommendation to go to the judge on a majority vote. So long as seven of the 12 jurors agreed that death was appropriate, their “advisory sentence” was sent to the judge. The judge had the power to follow the jury’s recommendation, or not. By law, though, he had to give their determination “great weight.” It’s my understanding that, in most cases, Florida judges followed the jury’s recommendation.
In 2002, in Ring v. Arizona, the United States Supreme Court held that factual determinations, such as the existence of aggravating factors, must be made by a jury, not the judge. Because the Florida scheme allowed the judge to make the final decision as to life or death, this appeared to violate the 2002 SCOTUS ruling. It took 14 years, however, for Florida’s law to change.
This January, SCOTUS held in Hurst v. Florida that the state’s system is unlawful. With that decision, there was technically no death penalty scheme in place in Florida but the state legislature worked quickly. This week, Florida Governor Rick Scott signed into law a new process that requires at least 10 out of 12 votes before a person can be condemned to death. This vote is binding on the judge; it is no longer an advisory sentence. Florida’s attorney general had argued against requiring unanimous verdicts which, by the way, all death penalty states require except for Delaware, Alabama and now Florida. Requiring unanimity could allow one juror to hijack the process, argued Florida’s attorney general. (Jodi Arias trial watchers understand that position!) Like Florida, Delaware and Alabama require a vote of at least 10 out of 12.
The new Florida law also requires unanimity by the jury as to the existence of one or more aggravating factors. Keep in mind that a juror can vote that an aggravator exists but then vote against the death penalty.
The next question is what happens to all the people on Florida’s death row who were sentenced under the old system? The answer is that no one knows yet.
Many believe there will be legal challenges to Florida’s new system but, for me, it’s a big step toward alleviating the discomfort I felt about Florida’s scheme—discomfort that started with that first death penalty trial in 1995. By the way, that case was against Thomas Gudinas. He’s still on death row–21 years later!