‘A huge step backward’ for the death penalty in Florida

Editor’s Note: Justice Jorge Labarga of the Florida Supreme Court wrote the dissenting opinion in the case of State v. Poole. In a 4-1 decision Thursday, the court retreated from its requirement that all 12 members of a Florida jury must be unanimous in recommending a death sentence. Labarga’s dissent has been edited for space and clarity.

Today, a majority of this Court recedes from the requirement that Florida juries unanimously recommend that a defendant be sentenced to death. In doing so, the majority returns Florida to its status as an absolute outlier among the jurisdictions in this country that utilize the death penalty.

The majority gives the green light to return to a practice that is not only inconsistent with laws of all but one of the 29 states that retain the death penalty, but inconsistent with the law governing the federal death penalty. Further, the majority 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.

The requirement that a jury unanimously recommend a sentence of death comports with the overwhelming majority of states that have the death penalty. At the time that Hurst v. Florida was decided, of the 31 states that legalized capital punishment, only three states — Florida, Alabama and Delaware — did not require that a unanimous jury recommend the death penalty. Since that time, the Delaware Supreme Court declared the state’s capital sentencing statute unconstitutional, and we held in Hurst v. State that unanimity was required in Florida. These developments left Alabama as the sole death penalty state not requiring unanimity — until today. Not only does requiring a unanimous recommendation of a sentence of death comport with the overwhelming majority of death penalty states, it also comports with federal law governing the imposition of the federal death penalty.

As we explained in Hurst v. State: The vast majority of capital sentencing laws enacted in this country provide the clearest and most reliable evidence that contemporary values demand a defendant not be put to death except upon the unanimous consent of the jurors who have deliberated upon all the evidence of aggravating factors and mitigating circumstances. By requiring unanimity in a recommendation of death in order for death to be considered and imposed, Florida will achieve the important goal of bringing its capital sentencing laws into harmony with the direction of society reflected in all these states and with federal law. By receding from the unanimity requirement, we retreat from the national consensus and take a huge step backward in Florida’s death penalty jurisprudence. The historical treatment of unanimity in Florida underscores our conclusion in Hurst v. State that Florida’s right to trial by jury, contained in Article I, Section 22 of the Florida Constitution, requires that a jury unanimously recommend a sentence of death. For well more than a century, Florida law has required that a jury unanimously vote to convict a defendant of a criminal offense.

This settled law compelled this Court’s conclusion in Hurst v. State that the unanimity requirement applied not only to the jury’s duty to determine whether to convict the defendant, but upon conviction, to the jury’s duty to determine whether the defendant should receive the death penalty. We said: “This recommendation is tantamount to the jury’s verdict in the sentencing phase of trial; and historically, and under explicit Florida law, jury verdicts are required to be unanimous.”

Florida holds the shameful national title as the state with the most death row exonerations. Since 1973, 29 death row inmates have been exonerated, and those exonerations have continued to this very year. Given this history, there is every reason to maintain reasonable safeguards for ensuring that the death penalty is fairly administered.

I strongly object to the characterization of this Court’s decision in Hurst v. State as one where this Court “wrongly took [discretion] from the political branches.” As the court of last resort in Florida’s third and co-equal branch of government — whose responsibility it is to interpret the law — that is what this Court did in Hurst v. State. The constitutionality of a provision of Florida’s death penalty law is uniquely this Court’s to interpret.

Death is indeed different. When the government metes out the ultimate sanction, it must do so narrowly and in response to the most aggravated and least mitigated of murders. Florida’s former bare majority requirement permitted a jury, with little more than a preponderance of the jurors, to recommend that a person be put to death.

Sadly, this Court has retreated from the overwhelming majority of jurisdictions in the United States that require a unanimous jury recommendation of death. In so doing, this Court has taken a giant step backward.