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.
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