On January 12, 2016, the United States Supreme Court issued its decision in Hurst v. Florida, finding that Florida's death penalty sentencing scheme is unconstitutional. This decision has the potential to impact the nearly 400 prisoners on Florida's death row, the second largest in the country. Justice Sotomayor wrote the majority opinion, which was accompanied by a concurrence by Justice Breyer and a dissent by Justice Alito.
Prior to this decision, Florida was the only state in the country where a person could be sentenced to death by a judge after a non-binding recommendation of a simple majority of jurors and without any record of what facts led to the jury’s recommendation. In 2002, the U.S. Supreme Court held in another death penalty case, Ring v. Arizona, that a “hybrid” proceeding “in which [a] jury renders an advisory verdict but the judge makes the ultimate sentencing determinations” was unconstitutional. Until Hurst, Florida had insisted that Ring didn’t apply in the state because before issuing its opinion in Ring, the Court had upheld Florida’s capital sentencing statute in two earlier cases, Hildwin v. Florida (1989) and Spaziano v. Florida (1984). In Hurst, however, the Court made clear that Ring does apply to Florida and that Florida’s scheme was therefore unconstitutional, explicitly overruling its prior holdings from Hildwin and Spaziano.
In response to the U.S. Supreme Court’s holding in Hurst, the Florida Legislature sought to quickly remedy the situation to resume use of the death penalty in the state. On March 3, 2016, the state legislature passed HB 7101 to restructure Florida’s capital sentencing scheme. Governor Rick Scott signed the bill into law on March 7. The law requires that juries must unanimously agree upon and document in writing the aggravating factors that would lead a defendant to be eligible for a death sentence.
The law also requires the jury to reach at least a 10-2 decision regarding whether to impose a death sentence in a particular case. This was one of the most contentious issues of the bill while it was still pending in the Legislature, even though the U.S. Supreme Court did not address this issue directly in its opinion in Hurst. The 10-2 sentencing scheme leaves Florida in a group of just three states that allow a death sentence to be imposed without a unanimous jury decision. The other two states, Delaware and Alabama, have recently questioned their own capital sentencing statutes in light of the Supreme Court’s Hurst opinion.
Florida’s reaction to Hurst was not limited to the Legislature. The Florida Supreme Court also took immediate action. The state high court stayed the executions of Michael Lambrix and Mark Asay, which were originally scheduled to take place in February and March.
The court also requested special briefing in at least eight cases and heard arguments in most of these cases over the course of three days in early February. The two most significant issues raised by counsel for the eight defendants were (1) whether Hurst was retroactive and if so, to what date; and (2) whether defendants sentenced under the old capital sentencing scheme should receive commutations to sentences of life without parole.
Counsel for the State argued that the Hurst decision should only apply to new trials and cases still in the early stages of their appeals. Defense counsel took the opposite position, arguing that all prisoners sentenced under the old scheme should have their sentences commuted. In other states where the sentencing scheme was affected by the Ring decision, the impact was not retroactive beyond the date that Ring was decided in 2002. Defense counsel argued that the Florida situation is different, however, because Hurst overturned the full line of Florida cases that led to the U.S. Supreme Court’s holdings in Hildwin and Spaziano, both of which pre-dated Ring. They then argued that if Hurst applies retroactively, the defendants sentenced under Hurst have not technically been convicted of capital murder because the juries in their cases did not find the underlying aggravating circumstances necessary to make the defendants death-eligible. As a result, they reasoned, the defendants sentenced under Hurst must receive commutations to life without parole.
The Florida Supreme Court is expected to address the retroactivity and commutation issues when it readdresses its previous holding in Hurst. In addition, the Florida Supreme Court has requested that the parties in Hurst also address what procedures to use if the court remands Mr. Hurst’s case to the trial court for a resentencing proceeding. In particular, the court will decide whether the recent legislative activity in HB 7101 supplants, supplements, or otherwise alters the former Florida capital sentencing statute. The court will hear oral argument in Mr. Hurst’s remand on May 5, 2016.