The Florida House of Representatives passed SB 450 on April 13 by a vote of 80-30. The Florida Senate has already passed the bill. The legislation is now headed to the Governor’s desk.
Florida leads the nation in the number of death row exonerees with 30. Now, the state is poised to have the most extreme death penalty sentencing scheme in the nation.
The highlight of my career was when Clemente Aguirre, a man I represented for over ten years during his wrongful incarceration, became Florida’s 28th death row exoneree. He spent 14 years incarcerated in Florida, with more than ten of them on Florida’s death row for a crime that DNA proves he did not commit. Mr. Aguirre’s jury votes were 7-5 and 9-3 for death.
Florida is responsible for the highest number of death row exonerations, 30 since 1973. Nearly ALL of those exonerations involved non-unanimous jury recommendations for death, or cases where the judge overrode the jury’s life decision. Both chambers have been moving legislation this session to compensate persons who have been wrongfully incarcerated. You have an equal responsibility not to pass legislation that will undoubtedly create more wrongful convictions.
SB 450 contains nearly identical language to the death penalty statute that was declared unconstitutional by the United States Supreme Court in 2016. In an 8-1 decision in Hurst v. Florida, the Court struck down Florida’s scheme because the “Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.”
Further, in 2020, the United States Supreme Court also found unconstitutional Louisiana’s non-unanimous jury determinations, which allowed for the conviction of a serious crime to occur if 10 of 12 jurors agreed. In a 6-3 decision in a case called Ramos v. Louisiana, Justice Gorsuch explained the origins of non-unanimous sentencing, noting that “Louisiana first endorsed non-unanimous verdicts for serious crimes at a constitutional convention in 1898. According to one committee chairman, the avowed purpose of that convention was to ‘establish the supremacy of the white race.’”
The Ramos Court ultimately struck down the law, holding that “the right to trial by jury included a right to a unanimous verdict. When the American people chose to enshrine that right in the Constitution, they weren’t suggesting fruitful topics for future cost-benefit analyses. They were seeking to ensure that their children’s children would enjoy the same hard-won liberty they enjoyed.”
While SB 450 is a reaction to the understandable outrage that ensued after the Parkland trial, reviving an unconstitutional statute is not the solution. Because of the constitutional infirmities in this bill, any sentence imposed under this new legislation is vulnerable to the same challenges that occurred after Hurst, when Florida courts were faced with numerous death penalty cases that resulted in 100 new penalty phases for death row inmates. More than 60 of those resentencing proceedings are still pending.
Since this bill was filed, the State has executed Donald Dillbeck, who had an 8-4 jury vote. Last night, on April 12th, Louis Gaskin was executed by the State of Florida. Mr. Gaskin was also sentenced to death by an 8-4 vote. I urged the legislature not to be lulled into a false sense of security by the fact that courts may not be stepping in to stop these executions based on the non-unanimous jury vote. There are strict standards in death penalty appeals that do not allow courts to revisit issues that have been previously raised and rejected. Both Mr. Dillbeck and Mr. Gaskin were denied relief under Hurst because their cases were final before 2002.
This is a very different scenario than a new capital defendant sentenced to death under this new proposed scheme, who raises these constitutional issues for the first time on direct appeal. There will be no procedural default issues, and both the Florida and federal courts will be able to directly and squarely address the constitutionality of Florida’s death penalty system. Based on all of the above, especially the decisions of the United States Supreme Court in Hurst and Ramos, it is clear this proposed law will fall on the wrong side of constitutionality.
If one of the primary justifications for the death penalty is to provide solace and finality to victims, instituting this new unconstitutional statute almost certainly does the opposite.