February 04, 2017

New death penalty guidelines in Florida opens door for change in other states, say panelists

The U. S. Supreme Court’s ruling in January that Florida’s death penalty sentencing guidelines violated the Sixth Amendment’s right to trial by a jury and ordered that the jury — rather than a judge — make the determination of a death sentence, has opened the door for other major death penalty states to revisit capital punishment.

The Florida ruling was the subject of a panel discussion, “The Constitutional Crisis with Florida’s Death Penalty Post-Hurst and Its Implications for Additional States,” held Feb. 3, during the Midyear Meeting in Miami. Moderated by Martha Barnett, senior partner (ret.) Holland & Knight, the panelists discussed the implications of the ruling and how it fits within the broader and changing landscape of capital punishment nationally. Panelists were Karen Gottlieb, co-director, Florida Center for Capital Representation, Florida International University Law School; and Martin McCain, Florida capital post-conviction attorney who litigated Hurst v. State retroactively before the Florida Supreme Court.

Hurst v. Florida (U.S. Supreme Court) and Hurst v. State (Florida Supreme Court) struck down Florida's death penalty sentencing scheme, which previously required a judge to determine whether a capital defendant received life in prison or the death penalty, with the jury serving only in an advisory role and making its recommendation based on a simple majority vote of the jurors. Now in Florida, a death sentence must be issued by a jury and the decision must be a unanimous 12-0 vote. These decisions call into question similar death penalty schemes in other states such as Delaware, Alabama and California.

The ruling brought an abrupt halt to executions in Florida and led to extensive subsequent litigation in state courts, and has put in limbo the fate of many defendants still on death row in pending cases.

In Florida, according to McCain and Gottlieb, it is not yet clear how many of the 396 people on death row may receive new sentencing hearings under Hurst. In the few cases it has considered to date, the Florida Supreme Court has been unwilling to apply Hurst retroactively to cases that had completed their direct appeals prior to the U.S. Supreme Court's 2002 decision in Ring v. Arizona, because the Hurst decision is based on Ring.

Last December, the Florida Supreme Court ruled that as a result of the state’s flawed death sentence, more than 200 inmates awaiting execution — including all of those who were sentenced after 2002 or whose appeals were not final by that year — may be entitled to new sentencing hearings.

Hurst v. Florida is great decision in that it requires a sufficient aggravating circumstances and for me that made all the difference,’’ said McCain. “And it is that one sentence in Hurst that bears reference to the fact that the stature requires the finding of sufficient aggravating circumstances that to me makes all the difference in the world.”

However the Court has not yet been confronted with cases that were decided before Ring but after Apprendi v. New Jersey in 2000 (the case on which the Ring decision was based), leaving open the possibility of retroactive application to death penalty cases falling within that two-year window.

Attorneys are continuing to advance the argument that giving sentencing relief to some death row prisoners but not others based on any bright-line cutoff date constitutes arbitrary imposition of the death penalty in violation of another case, Furman v. Georgia, and the Eighth Amendment.

“The Constitutional Crisis with Florida’s Death Penalty Post-Hurst and Its Implications for Additional States” was sponsored by the ABA Section of Civil Rights and Social Justice.