Will Florida have to revoke all 389 of its death penalty sentences?

Citing a 1972 precedent, several legal experts are urging the Florida Supreme Court to convert all of its 389 death penalty sentences to life sentences.  

Should the 389 inmates awaiting execution in Florida remain on death row?

A group of legal experts – including three former Florida Supreme Court justices, elected officials, prosecutors, and a federal judge – have written a 33-page brief urging the state’s supreme court to convert all of the Florida's death row sentences to life sentences.

The core issue is whether the January 2016 US Supreme Court ruling on Hurst v. Florida, the case that ruled Florida’s death penalty system unconstitutional in an 8 to 1 vote, should apply retroactively.

The US Supreme Court decision called into question the validity of the state's death sentences, because Florida’s law requires that judges rather than juries make the final decisions on death penalty cases. Florida is also one of the only three states in the US – along with Alabama and Delaware – that doesn’t require unanimity in jury decisions. Juries in all three states can recommend death sentences by a majority vote.

“We hold this sentencing scheme unconstitutional,” wrote Justice Sonia Sotomayor in the majority opinion. “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.”

The case began in 1998, when an assistant manager at a Popeye’s Fried Chicken restaurant in Escambia County was murdered. Timothy Hurst, an employee, told his friends that he had killed the manager and robbed the store, according to court records. At his 2000 trial, the jury voted 11 to 1 to recommend a death sentence. Mr. Hurst appealed, arguing that he was mentally disabled and didn’t qualify for a death sentence. The appeal granted him a second hearing, at which the jury voted 7 to 5 to recommend a death sentence. The judge imposed a death sentence, a decision that was later upheld by the Florida Supreme Court.

Florida has conducted no executions since the Supreme Court ruling, but state lawmakers did revise the state’s death penalty statutes in an attempt to bring them in line with the US Constitution. The new law now requires a 10-juror recommendation on the death penalty, still an easier standard than the unanimous vote required by 47 states.

In the brief filed Tuesday, the legal scholars urge Florida officials to commute the death sentences regardless. "Based on a plain reading of this statute, persons previously sentenced to death for a capital felony prior to the decision in Hurst v. Florida, are entitled to have their death sentences replaced by sentences of life without parole," they wrote.

The state’s supreme court will hear oral arguments on Thursday morning.

Some legal experts are arguing that Florida has a precedent that it must obey here.

In 1972, the US Supreme Court ruling in Furman v. Georgia led to a de facto moratorium on all capital punishment throughout the United States from 1972 to 1976. 

"Florida’s response was to vacate every single death sentence, no matter when it had been entered, and convert it to a life sentence," said Martin McClain, a defense lawyer in Florida who represents one of the inmates on death row, in a February interview with NPR. "That’s what you do when your statute for imposing a death sentence has been rendered unconstitutional."

But lawmakers are arguing that the 1972 precedent doesn't apply in this case, contending that the law would only be applicable if the death penalty had been ruled unconstitutional. In this case, they say, the US Supreme Court questioned Florida’s use of judges in determining death penalty sentences instead of the jury but did not rule the death penalty unconstitutional.

Some experts have also argued that the high court's decision should not be applied to every inmate on death row, and instead should be considered on a case-by-case basis.

"I think the argument ... is fallacious that they would all have to be reduced to life," said Barbara Pariente, former chief justice of the Florida Supreme Court, during a hearing on one of the death penalty cases earlier this year, according to the Daytona Beach News-Journal.