Florida's Unconstitutional Death Penalty Is Even Worse Than The Supreme Court Said

No white person in modern history has been executed for killing a black person in the state.

Florida' legislature must come up with a way to fix to the state's broken death penalty system after the U.S. Supreme Court this week ruled against how the state imposes capital punishment. But any solution is unlikely to overcome vast racial and gender disparities exposed by a new study on executions in the state.

The Supreme Court put Florida's 390 death row inmates in limbo on Tuesday, when it ruled 8-1 in Hurst v Florida that capital punishment in the state is unconstitutional because juries only have an advisory role in imposing a death sentence. Judges have final say on punishment, but the court said the Sixth Amendment requires that juries hold that power, as they do in most states that have the death penalty.

It's too soon to say how many of Florida's condemned men and women will get a hearing or perhaps even a new trial because of the ruling. The state Supreme Court on Friday declined to halt the scheduled Feb. 11 execution of Cary Michael Lambrix, though his lawyers argued the U.S. high court's ruling entitled him to a review of how he received the sentence, according to The Tampa Bay Times.

The real problems with Florida's use of the death penalty run much deeper than whether a judge or jury hands out the punishment, experts said, and leave the state open to future constitutional challenges.

Florida defendants are 6.5 times more likely to be executed for killing a white woman than they are for killing a black man, according University of North Carolina political science professor Frank Baumgartner. His report, "The Impact of Race, Gender and Geography on Florida Executions," published Thursday, said Florida executed 89 inmates from 1976 to 2014. None were white killers convicted of murdering black people, Baumgartner found.

The U.S. Supreme Court has infamously refused to look at studies like this when considering the fairness of the death penalty, and Florida's Republican-led legislature is unlikely to consider the findings in fixing the law. Still, Baumgartner argued it's clear all inmates haven't been treated equally since the Supreme Court reinstated capital punishment in 1976.

"It was supposed to remove freakishness and impartiality from the system. After 40 years, we've gotten enough data to say that 'No, it hasn't,'" Baumgartner said. "These are strange numbers and they should be shocking to most people."

Prosecutors have the discretion to seek either the death penalty or lesser sentences in first-degree murder cases. Capital punishment is supposed to be reserved for the worst of the worst crimes. But Baumgartner dismissed the notion that perhaps white women have been victimized by more atrocious and heinous crimes than black men in ways that would justify his findings.

His report shows other discrepancies. Seven Florida counties have an execution rate three times greater than the state's 60 other counties.

"It's important to see who actually reaches the end of the system," Baumgartner said. "There are biases all along the way."

Attorney groups have called for the state to take an honest look at how it uses capital punishment. In 2006, the American Bar Association sounded the alarm, because Florida led the nation in death row exonerations, exhibited a shortage of qualified defense attorneys and had too many jurors who misunderstood the sentencing rules. The Florida Bar in 2013 also asked the state to review how it kills inmates.

"There are a wide range of process concerns," said Florida State University law professor Mark Schlakman, who was part of the ABA team that wrote the 2006 report. "There is no uniform standard for when a death case is brought."

Another anomaly of the Florida sentencing system is that juries may decide by only a 7-to-5 majority to impose the death penalty. Most states with capital punishment require juries to reach a unanimous verdict in favor of executing a defendant. The Supreme Court didn't examine this feature of the state's law.

Despite the racial and gender disparities, analysts said Florida may be able to easily adjust its law and put its death chamber back to work. The state legislature may simply pass a law that shifts sentencing decision-making power to juries, experts said, without looking at the questions raised by Baumgartner's work.

"As a practical matter, I don't know that it will be much harder to get a death sentence than under the previous system," said University of Florida law professor John Stinneford.

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