Florida Supreme Court Declares New Death Penalty Statute UnconstitutionalOctober 17, 2016

The Florida Supreme Court on Friday struck down the new death penalty statute adopted by the state legislature earlier this year after the United States Supreme Court ruled that Florida's capital sentencing scheme was unconstitutional.

On January 12, the Supreme Court held in Hurst v. Florida that Florida's capital sentencing scheme violated the Sixth Amendment's requirement that a jury, not a judge, must find each fact necessary to impose a sentence of death. The Court found that, because a Florida jury's recommendation was only advisory and could be overruled by the trial judge, who alone made the findings necessary to impose death, the "jury's mere recommendation is not enough."

In response to Hurst, the Florida legislature changed the state's sentencing law and abolished judicial override. The new law provides that judges still make the final sentencing decision, but if the jury recommends a life sentence, the judge must impose life in prison. 

The new law also increased the number of jurors required to recommend a death sentence from seven to 10, but fell short of requiring a unanimous verdict for death. This left Florida as an outlier with Alabama, sharing the distinction of being the only two states that allow imposition of the death penalty based on non-unanimous verdicts. Alabama, alone in the country, continues to allow judge override, but otherwise its statute is virtually identical to Florida's new law.

While the new Florida law provides that the jury must make a recommendation that is "based on" the "considerations" of whether sufficient aggravating factors exist and whether they outweigh the mitigating circumstances found to exist, it does not specify whether these findings themselves must be unanimous or explicit.

The State argued that Hurst requires only that the jury unanimously find the existence of one aggravating factor and nothing more. (This is the same argument the Alabama Supreme Court recently upheld.) The Florida Supreme Court rejected that argument, observing that Florida law has long required findings beyond the existence of a single aggravator before a death sentence may be recommended.

The Sixth Amendment requires that the jury -- not the judge -- must be the finder of every fact necessary for imposition of the death penalty. Accordingly, the court held that "in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge."

The Delaware Supreme Court held the same thing in August, leaving Alabama as the only state to allow imposition of the death penalty without a jury finding that aggravating factors outweigh the mitigating circumstances.

The Florida Supreme Court further struck down the part of the new law that allows only 10 jurors, rather than all 12, to recommend a death sentence, finding it was contrary to Hurst.