A death court sits at Tallahassee

The nation as a whole — and Florida juries in particular — have been turning away from the archaic extremism of capital punishment, and rightly so. But not the Florida Supreme Court, which is pushing hard in the wrong direction.

Since Gov. Ron DeSantis remade the court last year, it has ruled against Death Row inmates in 39 successive decisions, setting precedents in three that will lead to even more executions.

Meanwhile, Attorney General Ashley Moody is asking for a fourth especially grotesque precedent.

In two cases argued this month, Moody asked the court to reinstate the death sentences of two men who were granted new sentencing trials because their juries weren’t unanimous in recommending death.

If Moody prevails, 98 more prisoners in similar situations could face the same fate.

That would be an indelible stain on Florida’s honor — all the more so because it was the state court itself that had given these prisoners the opportunity to have their sentences reduced to life without parole.

But things have changed since the mandatory retirement of three liberal justices last year. DeSantis’s conservative appointees have not only repudiated the ruling that juries be unanimous in recommending death, they’e also reversed precedents so as to expose more defendants with intellectual disabilities to execution and to uphold convictions based entirely on circumstantial evidence.

Only one justice, Jorge Labarga, has objected.

Moody’s quest for a fourth reactionary ruling may be too much even for the court’s conservative bloc. Or so it seemed from skeptical questions some of them asked during oral arguments, conducted remotely.

“Reinstating a death sentence is pretty dramatic, wouldn’t you say?” remarked Chief Justice Charles Canady.

Even with the promised new sentencing hearings, many if not most of the prisoners could still face death. This time, however, their juries would have to do two things

unanimously: Identify the aggravating circumstances that justify death (there are 16 under the law) and vote for execution.

Previously, the law required a jury only be unanimous on guilt or innocence. It did not allow jurors to say what circumstances argued for or against execution in their sentencing recommendation. Regardless, the law left the sentencing decision to the judge.

In January 2016, however, the U.S. Supreme Court overturned that law in a case known as Hurst v. Florida. It held that the Sixth Amendment required Florida “to base Timothy Hurst’s death sentences on a jury’s verdict, not a judge’s fact-finding.” Hurst’s jury had split 7-5 on whether he should be put to death.

In response, the previous Florida Supreme Court ruled that a jury be unanimous in recommending death as well as on the aggravating factors that support such a sentence. In 2017, the Legislature wrote those terms into a new law, which remains in force.

But more than 300 people on Death Row were sentenced under the old law.

The state court picked an arbitrary date for applying the Hurst decision retroactively, denying the benefit to some 100 inmates. Another 145 had their death sentences vacated, according to the Florida Center for Capital Representation at Florida International University. Of those, 37 have since been resentenced to life without parole, including 31 cases in which prosecutors agreed. Eight have been resentenced to death. In March, after a jury trial, Hurst himself was resentenced to life for killing the manager of the Pensacola fast-food restaurant where he worked.

That leaves 100 people for whom new sentencing trials are still pending. Two of them are Michael James Jackson, a double murderer from Jacksonville, and Bessman Okafor, convicted at Orlando of killing a 19-year-old witness against him in a home invasion case. They are the ones whose death sentences Moody wants the

Supreme Court to reinstate.

To do so, the court would have to disregard deadlines on when its own orders can be appealed or retracted. The issue has implications for all manner of cases, which is why a coalition of attorneys who practice mainly civil law filed friend-of-the-court briefs opposing Moody.

If the court is uncomfortable with what she’s asking, it has itself to blame for encouraging her. It did that last year when it repudiated most of the 2016 Hurst decision in upholding the death sentence of Mark Anthony Poole for a 2001 home invasion murder in Lakeland.

In that case, the new majority ruled that a unanimous death recommendation was

not necessary for cases tried before the new law was enacted. It said the jury would need a unanimous vote only for guilt, and for just one of the aggravating circumstances spelled out in the law.

The 16 aggravating circumstances include “previous conviction of another violent felony.” The Legislature obviously meant that to apply to people with past convictions. But the court has allowed it to also be invoked against defendants whose juries convict them of another crime committed in the course of the murder.

In Poole’s case, the jury also convicted him of sexual battery, armed robbery and armed burglary. In so doing, said the court, the jury automatically found an aggravating circumstance.

That reasoning virtually guarantees a death sentence in almost every case. Prosecutors charge contemporaneous crimes nearly all the time.

Labarga took particular exception to that part of the Poole decision, saying that juries would no longer have to vote separately on whether to recommend death. It would be a “huge step backward,” he said. “It defies reason to require unanimous juries for the conviction of a capital offense, but to then reduce the jury’s collective obligation when determining whether the defendant’s life should be taken.”

He was concerned that the Legislature might follow the court’s lead, but so far it has left the 2017 law alone. As it should.

Jurors’ misgivings, it turns out, have been a clue to wrongful convictions. According to data published by the Death Penalty Information Center, 22 of 24 Florida death row prisoners who had been convicted since 1972 and who were later exonerated had received non-unanimous recommendations. (Florida leads the nation with 29 exonerations overall,)

The current majority’s tilt toward death is starkly different from how the court decided death cases in 2015-16, just before and after the U.S. Supreme Court ruling in

Hurst. It ruled against prisoners 37 times and in favor of 19 others, including one who was later exonerated.

It also contrasts with the North Carolina Supreme Court, which held this month that some 100 death row prisoners remain covered by a Racial Justice Act that Republican legislators had repealed. It entitles them to life sentences if they can prove racial bias influenced their juries.

North Carolina’s justices are doing right. Florida’s are doing wrong.