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You are here: Home / Uncategorized / Florida’s new death penalty proposal has constitutional issues | Opinion

Florida’s new death penalty proposal has constitutional issues | Opinion

February 11, 2023 by Bridget M

Florida’s new death penalty proposal  has constitutional issues | Opinion 

By Melanie Kalmanson and Maria DeLiberato 

Special to the Sun Sentinel 

Feb 11, 2023 at 8:00 am 

The execution chamber at Florida State Prison in Starke, Florida. (Palm Beach Post/Palm  Beach Post/TNS) 

Legislation proposed in the Florida Legislature (SB450/HB555) seeks to strip  defendants facing the death penalty in Florida of their constitutional right to trial by jury  and inject uncertainty and instability in the capital sentencing process. The legislation  explicitly states that the jury’s recommendation for death is merely “advisory” and allows  judges to override the jury’s recommendation for a life sentence and, instead, impose a  death sentence. 

“Having been involved as a justice in numerous death penalty cases and over 50  executions, my specific concern with the proposed statute — besides the issue of  unanimity — is the designation of the jury’s involvement as merely advisory,” said retired  Justice Barbara J. Pariente, who served on the Florida Supreme Court from 1997-2019  and was extensively involved in death penalty issues. She added: “This aspect of the  statute has serious constitutional implications.” 

The right to trial by jury is the cornerstone of our justice system. The Founders  enshrined this foundational right into the U.S. Constitution in the Sixth Amendment. 

In addition, the Florida Constitution includes its own right to jury trial. Article I, section  22, states: “The right of trial by jury shall be secure to all and remain inviolate.

Melanie Kalmanson serves on the steering committee for the American Bar  Association’s Death Penalty Representation Project. 

Capital trials proceed in two parts. First, the jury must unanimously determine the  defendant is guilty of first-degree murder beyond a reasonable doubt. Then, after a  conviction, the jury is presented with additional evidence known as aggravation and  mitigation. Aggravation is information about the crime that make the defendant seem  more deserving of death — for example, that the victim was a child or a police officer.  Mitigating circumstances are aspects of the defendant’s background that make the  defendant less deserving of death — for example, severe mental illness or significant  childhood abuse and neglect. Ultimately, after weighing the aggravation and the  mitigation, the 12-member jury must determine whether the defendant should be  sentenced to life in prison or death. 

In 2002, the U.S. Supreme Court held in its 7-2 decision in Ring v. Arizona that the Sixth  Amendment protects defendants’ right to trial by jury throughout the capital sentencing  process, including in the sentencing phase. Concurring with the majority written by  Justice Ruth Bader Ginsburg, Justice Antonin Scalia (joined by Justice Clarence  Thomas) reiterated his view that “the fundamental meaning … of the Sixth Amendment  is that all facts essential to imposition of the level of punishment that the defendant  receives … must be found by the jury beyond a reasonable doubt.” 

When Ring was decided, Florida’s capital sentencing scheme required that only a  simple majority of the jury issue an advisory recommendation for death — a vote of 7-5.  For 14 years after Ring, Florida capital defendants unsuccessfully challenged the  constitutionality of this scheme under the Sixth Amendment. Even before Ring, Florida  capital defendants raised this issue.

Maria DeLiberato is the executive director of Floridians for Alternatives to the Death  Penalty. 

Finally, in 2016, the U.S. Supreme Court reviewed the issue. In an 8-1 decision in Hurst  v. Florida, the Court determined that Florida’s capital sentencing scheme indeed  violated defendants’ Sixth Amendment rights because the jury’s recommendation was  merely “advisory.” At the time, Florida was one of only three states that did not require a  jury’s unanimous finding for death. The Court sent the issue back to the Florida  Supreme Court for further consideration. 

After direction from the Florida Supreme Court based on both the federal and state  constitutions, the Florida Legislature amended Florida’s capital sentencing scheme to  require that the jury unanimously make several findings in the capital sentencing  process, including its final recommendation for death. Florida was finally in line with  every other death penalty state except Alabama, which still requires only a 10-2  recommendation. 

For the next five years, these procedural safeguards ensured Florida’s capital  sentencing process was reliable and accurate. In 2022, under the post-Hurst law  requiring unanimity, Florida sentenced more people to death than any other state.  Florida currently has 299 inmates on death row — the highest of all states that still  conduct executions. 

Despite national public opinion trending away from capital punishment, Florida has  incrementally abandoned these protections. The bills proposed in the upcoming  legislative session revert Florida to an unconstitutional regiment. The legislation  explicitly states that the jury’s recommendation for death is merely “advisory” and allows  judges to override the jury’s recommendation for a sentence of life and, instead,  unilaterally impose a sentence of death. As a result, the legislation stands in clear  violation of the Sixth Amendment. 

While the proposed legislation is a reaction to the understandable outrage that ensued  after the Parkland trial, reviving an unconstitutional statute is not the solution.

Due to the constitutional infirmities in the proposal, sentences imposed under this new  legislation (assuming it passes) are 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. Some of those resentencing  proceedings are still pending. 

When courts ultimately reject this statute, Florida will be responsible for the cost of  numerous appeals, and victims’ families will have to endure painful resentencing  proceedings. 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. 

Melanie Kalmanson serves on the steering committee for the American Bar  Association’s Death Penalty Representation Project. Maria DeLiberato is a capital  defense lawyer in Tampa and the executive director of Floridians for Alternatives to the  Death Penalty.


Click here to download a pdf of the article.

 

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