Florida’s death row would be about three-quarters smaller if the state followed the practice of the majority of death penalty states and required the jury to unanimously decide a death sentence instead of by simple majority. Alabama and Delaware also permit judges to impose death sentences following a non-unanimous jury decision.
After an 18-month investigation into Florida’s 390 death row inmates, the Villages Daily Sun found that judges had imposed death sentences 287 times or 74% of the cases after jurors could not agree on the sentencing. If Florida had just changed their sentencing to supermajority instead of unanimous, 43% of the state’s death row prisoners would have received life sentences, as in Alabama which requires 10 or more jurors agree.
Although Delaware, like Florida, allows a recommendation for death by a simple majority of the jury (7 out of 12), it first requires the jury to unanimously find the aggravating factors that justify a death sentence.
Florida’s high-rate of death sentences now costs the state an estimated $9 million a year.
The U.S. Supreme Court recently struck down the state’s sentencing because its laws permit the judge rather than the jury to decide whether the prosecution has proven their “aggravating circumstances”. (Hurst v. Florida)
The justices wrote in an 8-1 decision, “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.”
Florida does not require the jury to specify the factual basis of its sentencing recommendation. In Florida during a capital case, the jury seems to play more of an “advisory” role then what the Constitution requires. The sentencing judge must give “great weight” to the jury’s recommendation, but only the judge ever provides written reasons why a case is eligible for a death sentence.
The Court based its decision largely on a 2002 precedent decision in which they struck down Arizona’s sentencing scheme because the judge, not the jury, found the facts necessary to impose the death penalty. (Ring v. Arizona)
While Florida’s procedure adds the “advisory recommendation” that Arizona’s lacked, the Court found the distinction, “immaterial.”
“As with Timothy Ring, the maximum punishment Timothy Hurst could have received without any judge-made findings was life in prison without parole. As with Ring, a judge increased Hurst’s authorized punishment based on her own factfinding. In light of Ring, we hold that Hurst’s sentence violates the Sixth Amendment.”
The Florida Supreme Court has ordered briefing on whether the decision should be retroactively applied. That is set for February 2nd.
Justice Alito dissented, citing past decisions upholding Florida’s death penalty statute. Justice Breyer concurred with the Court’s decision, but would find that the Eighth Amendment requires that a jury determine the actual sentence, not just the facts that make a person eligible for death.