Why Florida Supreme Court ruled death penalty juries unconstitutional

Florida’s infamous electric chair, “Old Sparky,” is long gone, but a legacy of botched executions and tough treatment of convicted murderers and rapists still dogs a state where a lawmaker once quipped: “Only God can judge, but we sure can set up the meeting.”

But Florida’s historical reliance on justice by death in capital cases is now facing certain change.

On Friday, the Florida Supreme Court continued to reverse its long-time support for the death penalty, citing shifting constitutional norms around a practice that appears to be on the wane in the US.

In a 5-2 vote, the state's highest court mandated that a jury must be unanimous in arriving at a death sentence in order for a convicted person to be assigned to the state’s death row. Florida is only one of three states – including Alabama and Delaware – that have allowed jury dissent in the death penalty phase.

The ruling will immediately affect 385 prisoners currently on death row, since their cases must be reviewed and, perhaps, retried.

But the ruling, based on the US Constitution's Eighth Amendment ban on cruel and unusual punishment, is likely to have longer-term effects, as well.

Expect fewer instances where prosecutors seek death sentences, given that the burden of proof is now “harder and stronger,” as Stephen Harper, a law professor at the Florida Center for Capital Representation, told the Miami Herald.

More critically, the US and Florida Supreme Court rulings in the Hurst v. Florida are likely to force Florida’s legislature to rethink its approach to the ultimate sanction.

Friday's ruling amounts to a “major shift in Florida jurisprudence,” Florida public defender Nancy Daniels told Jacksonville’s News 4 Channel. “The Hurst opinion from today makes it clear that the whole job a jury has to do has to be unanimous."

To be sure, Texas leads the way as far as total number of executions since the death penalty was reintroduced in 1976. But Florida has long had a reputation for zealousness in seeking death. Duval County, for one, has sentenced 25 people to death since 2010 – more than almost any other county in the US. That propensity for the death penalty comes in large part from the people, not politicians or judges. “If they done it, they done it, and it’s time to go,” Buck Gergely, a bait dealer, told the Monitor in 2014.

And two years ago, Florida Gov. Rick Scott signed a law intended to speed up the pace of executions despite the state’s record-number of death row exonerations. And in 1986, then-Tampa mayor Bob Martinez promised, in reference to the death penalty, that “Florida’s electric bill will go up” if he was elected governor, which he was.

But such attitudes are increasingly facing judicial and political headwinds, even in Florida.

“Simply put, Florida's extreme outlier status in not requiring unanimity in the jury's final recommendation renders the current imposition of the death penalty in Florida cruel and unusual under the Eighth Amendment of the United States Constitution,” Justice Barbara Pariente wrote in a concurring opinion.

Resolving the issue “now, as opposed to later, ensures that, for as long as death is a permissible punishment in the United States, Florida's death penalty will be constitutionally sound,” Pariente wrote.

Indeed, questions around constitutional soundness have long dogged the system which puts people on Florida’s death row. In many ways, the state’s system has highlighted less constitutional problems than human foibles.

“The debate over the death penalty in Florida today centers … on the incompetence, indifference, demagoguery, penuriousness and ineptitude that the state displays in almost every facet of putting someone to death,” as Florida Weekly writer Bill Cornwell put it in a 2014 expose. 

Allowing a non-unanimous jury to decide death has been part of that legacy. When the high court first struck down the Hurst v. Florida case, the Senate agreed to allow unanimous votes, but the House balked amid pressure from prosecutors.

In a dissent, Florida Supreme Court Justice Charles Canady wrote that the ruling “misuses” a Supreme Court decision dealing with how cruel and unusual punishment fits with the death penalty system.

Nevertheless, the ruling means that one of America’s toughest states when it comes to crime and punishment will likely have to confront a national trend: The number of actual executions has dropped from 52 to in 2010 to only 16 so far this year.

And the willingness of Floridians more generally to punish heinous crimes with more death may also be waning.

In a recent poll, 57 percent of Floridians preferred life without parole over the death penalty for those who commit the state’s most egregious crimes. Nationally, support for the death penalty peaked in the mid 1990s at 80 percent and since fallen to about 61 percent, according to Gallup.