Florida's Modified Death Sentencing Regime Is Still Unconstitutional, Judge Says

Juries in the state must unanimously impose the death penalty, a circuit judge ruled.

A Florida judge ruled on Monday that the state’s recently amended system for sentencing people to death is unconstitutional.

Circuit Judge Milton Hirsch said that the new regime -- which allows a “less-than-unanimous” jury to impose the death penalty -- violates Florida's constitution, which requires unanimity.

“Every verdict in every criminal case in Florida requires the concurrence, not of some, not of most, but of all jurors – every single one of them,” Hirsch wrote. 

Hirsch was considering the case of Karon Gaiter, a man charged with first-degree murder who is awaiting trial under new legislative changes enacted by Florida lawmakers in March. The changes were part of an attempt to fix the state's death penalty regime after the Supreme Court ruled in January that allowing judges to overrule a jury's recommendation in death penalty cases was unconstitutional. 

“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,” Justice Sonia Sotomayor wrote in the 8-to-1 ruling in Hurst v. Florida.

Under the modified system, Florida jurors must unanimously agree on the factual reasons that support the imposition of a death sentence, known as “aggravating factors.” The same law requires 10 of the 12 jurors to make the final recommendation of death, rather than a simple majority.

This latter part of the law, Hirsch said, fell short of the state constitution's requirement of full unanimity.

“Arithmetically the difference between twelve and ten is slight,” he wrote. “But the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.”

The question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice. Florida Circuit Judge Milton Hirsch

Florida is among the U.S.’s most active death penalty states, and its death sentencing scheme had long been an outlier. Prior to January's Supreme Court ruling, state law didn't require juries to be unanimous in order to recommend a death sentence or to unanimously agree on the factors that would merit a death sentence rather than life in prison. Judges could ultimately override a jury's recommendation and impose a death sentence based on their own determinations.

The Hurst ruling has since thrown Florida's death penalty system into turmoil.

Legal analysts predict that unanswered questions about the ruling's breadth and its effect on already-sentenced prisoners could result in “multi-headed, snake-like litigation."

Just last week, the Florida Supreme Court considered whether the Hurst ruling should allow all 390 inmates on the state's death row to receive commutations to life sentences.

Florida has already blocked two prisoners' executions and passed at least one legislative fix in an attempt to preserve its death sentencing system without violating the Constitution.

Alabama and Delaware both have death sentencing schemes similar to Florida's -- and, either proactively or through litigation, have adjusted how they impose the death penalty.

Delaware has halted capital murder cases and death penalty sentencing hearings, pending litigation. Though the state carries out few executions and hasn't performed one in nearly five years, it imposes more death sentences per capita than most other states.

The Supreme Court recently instructed Alabama to re-examine one prisoner's sentence -- a move that could have wide implications for the state's death row.

Non-unanimous death sentencing decisions were particularly pronounced in Alabama: A 2015 study from the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School found that 26 out of 34 of the state's death sentences in the past five years were decided by split juries.

Several of the Supreme Court's liberal justices have been vocal in their skepticism -- or outright disdain -- for the death penalty in America.

Justice Stephen Breyer has recently noted “three fundamental defects” with the death penalty -- unreliability, arbitrariness and long delays in carrying it out --and emphasized "the need to reconsider the validity of capital punishment under the Eighth Amendment.”



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