Death penalty proposal has constitutional issues

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.”

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.

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.

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.

By Melanie Kalmanson