HCBA Lawyer Magazine Vol. 28, No. 1 | Page 14

F R O M T H E S T A T E A T T O R N E Y An d re w H. Wa r re n - S t at e At t o r n ey fo r t h e T h i r t e e n t h Ju d i c i a l Ci rc u i t Florida Supreme Court Rules Death Penalty Statute Unconstitutional Our use of the death penalty must be fair, objective, and rare. C apital punishment is the most serious and sobering component of our criminal justice system. The most important thing is that we, as a society, get it right. Until recently, Florida had gotten it wrong. A brief history: In the landmark case of Furman v. Georgia in 1972, the U.S. Supreme Court struck down the death penalty across the country because, in part, its application was arbitrary and capricious. After Furman, Florida (like many other states) codified the aggravating and mitigating factors that need to be considered for capital punishment. In 2002, the Supreme Court held, in Ring v. Arizona, that the Sixth Amendment requires a jury to make factual findings regarding those factors. Despite Ring, Florida’s capital sentencing scheme provided that during the penalty phase — a second trial conducted after the initial guilt phase trial if the jury unanimously found the defendant guilty of a capital crime — the jury would recommend whether the death penalty was appropriate. The jury’s recommendation was just that — a recommendation — and the judge had great latitude in deciding whether to accept or disregard it. This was problem number one. Complicating matters further, the jury reached its recommendation based on a simple majority, even though the determination of guilt required unanimity. This was problem number two. In January 2016, in Hurst v. Florida, the U.S. Supreme Court expressly applied Ring to Florida’s sentencing scheme and invalidated the state’s method of having juries make recommen dations (as opposed to rendering a verdict) about whether capital punishment is warranted. 98 In response, the Florida legislature, in March 2016, amended the law to make the jury’s decision binding and increased the standard from simple majority to requiring ten or more jurors to agree (out of twelve). Problem solved? Not quite. In October 2016, the Florida Supreme Court responded with a swift rebuke in Perry v. State, stating that only a death penalty statute that required unanimity would pass constitutional muster. This past spring, our legislature and Governor Scott fixed the problem by requiring a unanimous verdict, bringing Florida’s statutory framework in line with consti - tutional requirements and the rest of the country. From a procedural standpoint, we finally got it right. So where does that leave us going forward? The U.S. and Florida Supreme Courts have made it clear that capital punishment must be limited to the most aggravated and least mitigated offenses. Following that guidance, our use of the death penalty must be fair, objective, and rare. Fair means that not only should it be limited to the most egregious offenses, but that the threat of the death penalty should not be used as leverage to coerce a guilty plea; a person’s life is not a bargaining chip. Objective means that each case is thoroughly evaluated based on its particular facts and circumstances, while ensuring that similarly situated defendants are treated consistently. And rare means, well, rare. Although all capital offenses are horrible and inhuman, the law reserves capital punishment for those rare crimes so heinous, atrocious, and undeserving of mercy as to be the worst of the worst in our society. Guided by these principles, we must get it right. 1<2;?3?.>;??8697??,??4>5=?0=+/<-