South Florida Sun-Sentinel Palm Beach (Sunday)
Repeal deserves fair hearing
Florida Supreme Court’s ghastly ruling on the death penalty
First in an occasional series
There have long been compelling reasons why Florida should repeal the death penalty. Ever since it was reenacted in 1972, case after case has exposed the fallacy that it can be imposed fairly. It has never been shown to be a deterrent, which would be its only justification.
On Thursday, repeal became morally urgent. That day, the Florida Supreme Court proved beyond any reasonable doubt that it cannot be trusted to oversee Florida’s machinery of death. And without responsible oversight, the death penalty is merely an exercise in pointless savagery.
Over one anguished dissent, four hardright justices trashed the court’s precedent that a jury be unanimous in recommending the death penalty. Under this ruling, Florida could return to the days, not so long ago, when a split jury — voting 7 to 5 — could condemn someone to die. Only two other states let a split jury send someone to death row.
This ghastly ruling applies only to people sentenced before 2016. That was when the Legislature, following the lead of the court in its better days, began requiring the jury to be unanimous.
The court’s ruling plainly gives permission to repeal and replace that good law.
Within hours of the ruling, the Polk County state attorney’s office asked a judge to reinstate the death sentence of a defendant who had been condemned on a 9-3 vote.
Justice Jorge Labarga, the lone dissenter, urged the Legislature to stand by the 2016 law.
“Nothing in the majority’s decision today requires the Legislature to abandon the unanimity requirement,” he wrote.
The decision, he said, “removes an important safeguard for ensuring that the death penalty is only applied to the most aggravated and least mitigated of murders. In the strongest possible terms, I dissent.”
Labarga is the only remaining voice of reason on the court following the mandatory retirement last year of three liberal justices. Their departure left Justices Charles Canady, Ricky Polston and Alan Lawson as a hard conservative core, needing only one more vote to begin overturning precedents they disagreed with. They got it when Gov. Ron DeSantis appointed Carlos Muñiz to the court, along with two others who soon left for the federal bench.
“Reinforcements are coming,” DeSantis promised in his State of the State address to the Legislature.
No doubt.
Also on Thursday, the Supreme Court Judicial Nominating Commission sent DeSantis nine names for the two vacancies. All nine are members of the right-wing Federalist Society. So is the governor and a majority of the panel that recommended them.
(In Florida, the governor alone decides who will serve on the Supreme Court. However, he must select someone whose name has been forwarded by this nominating commission. Problem is, the governor gets to pick all the nominating commission members, too. Florida does not require Senate confirmation of state Supreme Court justices.)
It is fundamentally wrong to stack a court with people plainly disposed to any particular outlook. Among the 32 applicants, there were nine others, including some well-qualified judges, who are not Federalists.
Florida’s record on the death penalty is long and shameful. With 29 exonerations, we lead the nation in sending the wrong person to death row. Simply put, prosecutors have gotten it wrong 29 times.
Florida has executed 99 people since re-enacting capital punishment in 1972, less than six months after the U.S. Supreme Court had temporarily banned it nationwide. By providing criteria and a comparative process to ensure proportional sentencing, the new law was supposed to eliminate whimsy and arbitrariness. It failed.
The law reduced the jury’s voice in sentencing to an advisory role, did not allow the jury to explain what factors it found for or against death, and left it to the judge to guess and make the final decision.
In 2016, the U.S. Supreme Court ruled in in Hurst v. Florida that it had to be the jurors, not the judge, who establish an aggravating circumstance, such as a previous felony conviction, the extent of cruelty to the victim, or a crime committed for pecuniary gain, among others.
Crucially, however, the court did not say whether a punishment recommendation needed to be unanimous, or even whether there needed to be one at all.
The Florida court, though, took that to mean the jury had to be unanimous in determining aggravating factors and unanimous in recommending death. And the Legislature went along.
Under Thursday’s decision, the vote to find an aggravating circumstance must still be unanimous. And just one such factor would be enough to condemn a defendant, no matter how many others weigh against it.
The death penalty is perpetrated in the name of the people of Florida, so it is their option to stop it.
Legislation to repeal it was filed in Tallahassee for the current session of the Legislature. See House Bill 6045 by Rep. Joseph Geller and others, and Senate Bill 638 by Sen. Gary Farmer. Neither bill has had a committee hearing, nor are they likely to.
But if anyone in the Legislature is tempted to act on the Supreme Court’s ruthless invitation to make the law worse, it would be an opportunity for Geller and Farmer to substitute their bills and force a vote on repealing the death penalty, rather than making it worse.
Repeal deserves a fair, thorough hearing.
Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board, which is separate from the newsroom, consists of Editorial Page Editor Rosemary O’Hara, Sergio Bustos, Steve Bousquet and Editor-in-Chief Julie Anderson.