Florida's Death Penalty Law Is Ruled Unconstitutional — Again

The state's supreme court ruled that a jury must be unanimous when imposing a death sentence.
After the U.S. Supreme Court ruled Florida's death penalty law as unconstitutional, state legislators attempted to fix it.
After the U.S. Supreme Court ruled Florida's death penalty law as unconstitutional, state legislators attempted to fix it.

Florida’s highest court ruled on Friday that the state’s recently amended death penalty law is unconstitutional because it doesn’t require jurors to be unanimous when imposing the punishment.

State legislators rushed to fix the statute earlier this year after the U.S. Supreme Court declared that the old sentencing regime violated the federal Constitution’s right to an impartial jury.

The Florida Supreme Court acknowledged Friday that most of the fixes passed the test and “can be construed constitutionally,” but that the provision allowing a less-than-unanimous jury to recommend a death sentence did not.

The new law “is unconstitutional because it requires that only ten jurors recommend death as opposed to the constitutionally required unanimous, twelve-member jury,” the court said. “Accordingly, it cannot be applied to pending prosecutions.”

The court’s majority frowned on the contested provision largely because Florida law requires unanimity from jurors during other parts of the sentencing process ― including agreement on critical facts that may justify the imposition of a death sentence.

In practice, the ruling means that there is no available law or procedure for prosecutors seeking the death penalty ― and the Florida legislature may again rush to pass a quick fix.

“We think we won,” attorney Frank Bankowitz said in an email. Bankowitz is one of the defense lawyers for Larry Darnell Perry, a first-degree murder defendant for whom prosecutors had requested a capital trial. Relying on the Supreme Court’s earlier ruling, Perry sought to challenge that decision.

All but one of the court’s members joined the ruling. Justice Charles Canady ― notably one of Donald Trump’s many pre-nominees to the nation’s high court if he is elected president ― disagreed with his colleagues’ conclusions about the offending provision.

In a separate decision issued the same day, the state court also granted a new sentencing hearing to Timothy Hurst, the man at the center of the Supreme Court case decided in January. He was convicted in 1998 for the murder of a co-worker at a Popeye’s restaurant.

One question the new ruling doesn’t answer is what happens to all the inmates sentenced under a regime that has now twice been deemed constitutionally defective. Could a death row inmate who was condemned by a non-unanimous jury now challenge that sentence and request a new sentencing hearing?

It’s an issue that is sure to lead to more litigation, as Florida has the second-largest death row population in the United States.

This story has been updated with comment from Frank Bankowitz.