Throughout this year, Florida’s death penalty has been in a state of limbo.
Executions are on hold, judges across the state are postponing death penalty cases and defense lawyers are seeking additional reviews in the aftermath of a U.S. Supreme Court decision in January that struck down Florida’s death-penalty sentencing process.
The U.S. Supreme Court said Florida gave too much power to judges, instead of juries, in deciding whether defendants should be executed.
But the 8-1 ruling also created uncertainty by failing to address whether jury recommendations for death sentences should be unanimous.
The focus is now on the Florida Supreme Court, left grappling with a variety of issues related to the January ruling and a law hurriedly passed by state legislators in response to the decision.
“Defense lawyers are trying to push the cases off, waiting for the court, and in some instances, judges are going along with it,” said Bernie McCabe, the state attorney in the 6th Judicial Circuit in Pasco and Pinellas counties.
“And if they don’t go along with it, defense lawyers file other motions claiming other stuff, to try to push it. So the frustration is we’re not getting the cases to trial that ought to be tried. And, unlike fine wine, my cases don’t get better with age,” McCabe said.
Of nearly three dozen states that have the death penalty, Florida is one of only three states — including Delaware and Alabama — that do not require unanimous jury recommendations for death. Delaware’s death penalty also is in flux.
The Delaware Supreme Court in August decided the state’s death penalty process, similar to Florida’s, was unconstitutional.
In contrast to Florida, Delaware’s last execution was in 2012.
The U.S. Supreme Court’s decision in a case known as Hurst v. Florida dealt with the sentencing phase of death penalty cases after defendants are found guilty, and it focused on “aggravating circumstances” that must be determined before defendants can be sentenced to death.
The ruling cemented a 2002 U.S. Supreme Court decision, in a case known as Ring v. Arizona, requiring that determinations of such aggravating circumstances must be made by juries, not judges.
Under Florida’s old law, jurors by a simple majority could recommend the death penalty. Judges would then make findings of fact that “sufficient” aggravating factors, not outweighed by mitigating circumstances, existed for the death sentence to be imposed.
That system was an unconstitutional violation of the Sixth Amendment right to trial by jury, the U.S. Supreme Court decided in an 8-1 ruling.
After the Hurst decision, Florida justices indefinitely postponed executions that had been scheduled to take place in February and March.
The decision also set off a scramble by lawmakers to revise the sentencing system.
Florida’s new law — crafted by the Republican-controlled Legislature during the session that ended in March — requires juries to unanimously determine “the existence of at least one aggravating factor” before defendants can be eligible for death sentences.
The law also requires at least 10 jurors to recommend the death penalty in order for the sentence to be imposed, a departure from the old law, which required a simple majority of jurors.
After hearing arguments in dozens of cases since January, the Florida Supreme Court is considering whether the Hurst decision applies to defendants whose death sentences were handed down before the January ruling.
The court is also poised to decide a variety of other issues, including whether the new law — which does not require a unanimous recommendation for death — is constitutional.
Lawmakers adopted the 10-2 recommendation at the urging of prosecutors, who objected to the notion of requiring unanimity.
The issues awaiting Florida Supreme Court decisions will have a far-reaching impact, affecting inmates already on Death Row as well as defendants whose cases are in progress or have not yet reached the trial stage.
Confident the court will uphold the new law, prosecutors are moving forward with capital cases.
“We believe that the changes have made the death penalty constitutional again,” Dave Aronberg, state attorney in the 15th Judicial Circuit in Palm Beach County, said.
But at the circuit level, many judges are hesitant to try capital cases that could be overturned after a Florida Supreme Court ruling, according to Pete Mills, an assistant public defender in the 10th Judicial Circuit who is chairman of the Florida Public Defender Association’s death penalty steering committee.
Some judges are asking defense lawyers to agree to proceed with the first phase of trials, to determine guilt or innocence, and put the sentencing phase of the trials on hold until the Florida Supreme Court rules on the new law.