Sun Sentinel Palm Beach Edition

Death penalty proposal has constituti­onal issues

- And Maria DeLiberato

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.

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By Melanie Kalmanson

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