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    May 04, 2023

    Florida’s Multifaceted Expansion of the Death Penalty Raises Constitutional Concerns

    By Noah Berg and Jasmine Shokoor, DPRP Interns
    Florida House of Representatives

    Florida House of Representatives

    Photo Credit: gal2.org/David July

    On April 20th, Florida Governor Ron DeSantis signed a bill into law allowing for the imposition of the death penalty when the jury recommends death by a vote of 8-4. Additionally, Governor DeSantis, on May 1st, signed a bill expanding capital punishment in the state. This law allows for the death penalty to be imposed for certain sexual crimes committed against children, even if the victim does not die, despite existing Supreme Court precedent limiting the death penalty to offenses that intentionally cause the victim’s death. This law also utilizes the 8-4 standard.

    These reforms come after Florida has already executed three people in the past three months, 56-year-old Louis Gaskin, 59-year-old Donald Dillbeck, and 56-year-old Darryl Barwick—the state’s first executions since 2019. As DeSantis pushes forward executions and expands the scope of the death penalty, he is also eyeing a presidential run.

    With the new non-unanimity law, Florida joins Alabama as the only states to allow for a sentence of death without a jury’s unanimous recommendation. While Alabama currently allows for death sentences to be imposed after a jury’s nonunanimous recommendation, it requires a jury vote of at least 10-2 .

    The Florida non-unanimity law comes after a Broward County jury failed to reach a consensus on the death penalty for Nicholas Cruz, who took 17 lives at Marjory Stoneman Douglas High School in Parkland, Florida, in 2018. For some, the outcome of this case pointed out concerns of the arbitrariness of the application of the death penalty in America. Commentators have observed that far less aggravated crimes—such as in the case of felony murder, where the defendant may have no intention to cause death or even be directly involved in the killing—often result in a death sentence, while several notable mass killers have received life.

    Cruz’s sentence could also reflect changing attitudes about the death penalty. A Gallup poll from 2019 found 60% of Americans prefer a penalty of life imprisonment compared to just 36% who prefer a penalty of death for murder. This marked the first time that a majority of Americans preferred life imprisonment to the death penalty in the history of this poll, which has been administered every three years since 1986.

    In every state where capital punishment is legal, jurors can only serve on a capital jury if they are “death qualified,” which requires the juror to certify that he or she can vote for a sentence of death. Research shows that this death-qualification process prevents substantial segments of American society from serving on juries in capital cases. The process of death qualification is especially likely to exclude women, Black people, other people of color, and Catholics. Other research provides evidence that death-qualified juries are more likely to convict the defendant, less likely to accept an insanity defense, less willing to consider mitigating factors, and more likely to impose harsh sentences overall.

    With this new legislation, Florida runs the haunting risk of sentencing more innocent people to death.

    Melanie Kalmanson

    Member, ABA Death Penalty Representation Project Steering Committee

    In 2015, the American Bar Association (ABA) adopted a policy urging all jurisdictions that retain the death penalty to require a unanimous jury recommendation of death before imposing the death penalty. The ABA noted “Empirical studies have revealed that, without a unanimity requirement for a recommendation of death, capital jurors do not devote the same energy or emotional commitment to the discussion among jurors on the ultimate sentencing decision, and pro-death jurors are able to overpower and ultimately silence undecided or minority viewpoint jurors.”

    Florida also has the most death row exonerations out of any jurisdiction in America. Most of these exonerees were sentenced to death under a similar non-unanimous capital sentencing scheme and by juries who did not vote unanimously for death. Empirical research has backed up the idea that non-unanimous death penalty sentencing statutes are likely to heighten the risk of wrongful convictions. Allison Miller, a public defender in Florida, noted that individuals with mental illnesses are especially likely to be falsely convicted of a crime and sentenced to death. 

    In addition to implementing the 8-4 standard, Florida passed a law expanding capital punishment to non-homicide crimes. On April 18th, the Florida State Legislature passed a bill that allows the death penalty for people convicted of sexually battering minors under the age 12. The House of Representatives approved the measure with a 80-30 vote, and the Senate approved it with a 34-5 vote. Republican Governor Ron DeSantis signed the bill on May 1st. Throughout the legislative session, it was clear that both the legislature and Governor DeSantis acknowledge that the law  contradicts standing U.S. Supreme Court caselaw and hope that the legislation will be reviewed by the United States Supreme Court.

    In Kennedy v. Louisiana, decided in 2008, the Supreme Court held in a 5-4 decision that the Eighth Amendment prohibits imposition of the death penalty in the case of the rape of a child where the crime did not intentionally result in the death of the child. The Court held that it is unconstitutional to sentence an individual to death for any crime other than homicide or a crime against the state. Crimes against the state are a narrow category, generally limited to “treason, espionage, terrorism, and drug kingpin activity.” Several victims’ advocacy groups and social work groups filed an amicus brief in Kennedy opposing the death penalty in child rape cases. They noted that the death penalty may exacerbate the problem of under-reported sexual abuse, the lengthy death penalty appeals process would force the child to continually relive and retell the traumatic events they experienced. Justice Anthony Kennedy wrote the majority opinion in the case. He relied on a line of earlier Eighth Amendment death penalty cases, where the Court held that, in order for a punishment to be constitutional under the Eighth Amendment, it must comport with the “evolving standards of decency that mark the progress of a maturing society.” At the time of the decision in the case, only six states allowed the death penalty in cases of child rape. Further, only two people were on death row in all of America for these crimes, and they were both in Louisiana. This led Justice Kennedy to conclude that there was a societal consensus against capital punishment in these cases.

    This Florida law appears to be directly at odds with the holding of Kennedy v. Louisiana. Supporters of the law are hoping this may prompt the United States Supreme Court to reevaluate Kennedy. In fact, the law explicitly states that Kennedy was “wrongly decided.”

    Regarding the impact of the bills, Melanie Kalmanson, who serves on the ABA Death Penalty Representation Project Steering Committee, said, “This new legislation erases important procedural safeguards that were implemented in Florida in 2017 after the U.S. Supreme Court’s 2016 decision in Hurst v. Florida, where the Court held that Florida’s capital sentencing scheme violated capital defendants’ right to trial by jury under the Sixth Amendment. With this new legislation, Florida runs the haunting risk of sentencing more innocent people to death. In addition, the state will impose sentences of death that are almost certainly unconstitutional.” 

    The information and views provided in the American Bar Association (“ABA”) Death Penalty Representation Project’s blog do not constitute official statements by the ABA and do not represent official ABA policy. For more information, please visit our policy and statement pages.