State lawmakers signed off on a measure intended to cure Florida’s death penalty system, but defense lawyers say the proposed fix is flawed and will be challenged in court.
Gov. Rick Scott’s aides said he will sign the bill, approved by the Senate in a 35-5 vote after earlier passing the House.
The legislation was prompted by a Jan. 12 U.S. Supreme Court ruling, in a case known as Hurst v. Florida, that struck down the state’s death-penalty sentencing system as unconstitutional.
The decision — which effectively put the death penalty on hold in Florida — came on the opening day of the legislative session, sending lawmakers scurrying to craft a remedy before the session ends March 11.
The ruling dealt with the sentencing phase of death-penalty cases after defendants are found guilty. It focused on what are known as aggravating circumstances that must be determined before defendants can be sentenced to death.
A 2002 U.S. Supreme Court ruling, in a case known as Ring v. Arizona, requires that determinations of such aggravating circumstances must be made by juries, not judges.
The 8-1 decision found that Florida’s system of giving judges — and not juries — the power to impose death sentences is an unconstitutional violation of defendants’ Sixth Amendment right to trial by jury.
While the Supreme Court ruling focused on aggravating circumstances, much of the legislative debate centered on another issue dealing with jury recommendations about whether defendants should be put to death.
The legislation (HB 7101) on its way to Scott would require at least 10 jurors to recommend death for the penalty to be imposed — a compromise between the House and the Senate.
Prosecutors, including Attorney General Pam Bondi, pushed for the 10-2 recommendation, arguing that unanimity would allow a single juror to hijack the process.
Lawmakers considered requiring unanimity, 10-2 or 9-3 recommendations. In the past, majorities of juries have been able to recommend death.
Though the bill passed overwhelmingly in the Senate and House, a key part of the measure is expected to prompt a legal challenge.
The bill would require juries to unanimously determine “the existence of at least one aggravating factor” before defendants could be eligible for death sentences.
Florida law lists 16 aggravating circumstances — such as whether the crime was committed for pecuniary gain or if the victim was under 12 years of age — that juries could consider.
Defense lawyers argue the list is so broad that virtually any murder could be considered a capital crime.
Allowing a single aggravating circumstance — even with a unanimous jury finding on the aggravators, as the proposed law would require — to determine whether a defendant is death-penalty eligible could run afoul of the Supreme Court’s consistent view that capital punishment should be reserved for a narrow class of offenders who commit the worst crimes, the lawyers contend.
Because of that, the proposed law could violate Eighth Amendment protections against cruel or unusual punishment, Rex Dimmig, public defender in the 10th Judicial Circuit, said.
In attempting to cure the concerns raised in the Hurst decision, lawmakers have “completely changed the death penalty scheme that’s to be used in Florida, which severely implicates Eighth Amendment challenges to the statute,” Dimmig said.
In the past, the jury was required to find sufficient aggravating circumstances to support to death penalty.
It also had to determine mitigating circumstances did not outweigh the aggravating factors, he said.
The new bill says someone is eligible for the death penalty if the jury finds unanimously that a single aggravating factor exists.
As a result, Dimmig said, more defendants will be eligible for the death penalty.