December 01, 2017

Florida Supreme Court Reaffirms Decision to Deny Relief for Unconstitutional Sentences Issued Prior to 2002

Last year, in Hurst v. Florida (2016), the U.S. Supreme Court found Florida’s death penalty sentencing statute unconstitutional under the Sixth Amendment, because it gave discretion to the judge, rather than the jury, to make the findings of facts necessary to impose the death penalty. In its opinion, the Court held that juries must determine the aggravating and mitigating factors that control a death sentence.

The decision called into question hundreds of death sentences issued under this unconstitutional scheme. Courts and lawmakers have since grappled with several issues, including whether all capital sentences rendered under the old statute would have to be thrown out as a result of the ruling and whether a new death penalty statute needed to require a unanimous jury verdict to impose death.

Florida courts have particularly struggled with questions about the retroactive application of Hurst. Ring v. Arizona (2002) first announced the rule that the Supreme Court relied upon in deciding Hurst. The date of the Ring decision became the key dividing line between prisoners that could benefit from the Hurst decision and those that could not. In Asay v. State (2016), the Florida Supreme Court found that several factors, including practical issues like past reliance on the old rule and the impact on the administration of justice, weighed against making Hurst relief available for all prisoners. The court decided that only prisoners whose death sentences became final after the date that Ring was announced in June 2002 could benefit from Hurst.

The decision in Asay created a life-or-death distinction between functionally identical cases, relief being available in some instances only because of the random chance of a slow moving case docket.

On August 10, 2017, the Florida Supreme Court addressed the question of whether this arbitrary division itself created a constitutional violation. In Hitchcock v. State (2017), the petitioner claimed he was entitled to relief under Hurst, even though his death sentence was final before Ring was decided. He asserted that denying Hurst relief because his case happened to be decided before Ring violated his Eighth Amendment and due process rights. In a brief per curiam opinion, the Florida Supreme Court rejected this argument, reaffirming its holding from Asay.

Justices Lewis and Pariente disagreed, both arguing that relief under Hurst should be available to cases finalized before Ring, although Justice Lewis would restrict relief to cases where the prisoner had properly raised and preserved the claim. Justice Pariente wrote in dissent, “Reliability is the linchpin of Eighth Amendment jurisprudence, and a death sentence imposed without a unanimous jury verdict for death is inherently unreliable. . . . To deny Hitchcock relief when other similarly situated defendants have been granted relief amounts to a denial of due process.” Mr. Hitchcock sought review of this decision from the U.S. Supreme Court. The Court denied certiorari on December 4, 2017, without noted dissent.

Despite the decision not to apply Hurst to cases finalized before 2002, the Florida Supreme Court is expected to grant relief in approximately 158 post-2002 cases based on Hurst. The court has already granted resentencing hearings in 117 of those 158 cases, and of the granted resentencing hearings, trial courts have already resentenced 14 prisoners to life without parole. 

Volunteer Opportunity!

The large number of prisoners who have won Hurst relief has created an unprecedented need for assistance from pro bono counsel. There are not enough local defenders to effectively represent over one hundred clients in their resentencing hearings. The Project is working to train pro bono lawyers and partner them with local capital defenders to assist in the reinvestigation and litigation of these capital cases. Pro bono counsel will be essential to ensuring due process in these resentencing proceedings. If you are interested in learning more, please contact the Project at