People in Florida may have seen news stories recently regarding Florida’s death penalty and a decision by the United States Supreme Court calling it into question. As an initial matter, Florida has the death penalty as an option for certain crimes. The recent United States Supreme Court case (Hurst v. Florida, 136 S. Ct. 616 (2016)) did not find the Florida death penalty unconstitutional, but it did find the death penalty “scheme” unconstitutional.
The Sixth Amendment to the Constitution guarantees, among other things, a criminal defendant the right to have a trial by jury. The problem with the Florida death penalty procedure is that the Florida statute allows a judge to make certain findings that a defendant is eligible for the death penalty. The Supreme Court held that the Sixth Amendment requires a jury to make those findings rather than a judge. A recommendation by the jury to the judge who ultimately makes the death penalty findings is not sufficient to satisfy the Sixth Amendment right to a trial by jury. The Court ruled that a jury, not a judge, must make each finding that is necessary to impose the death penalty in a Florida criminal case.
So, what that decision does is invalidate the process by which Florida imposes the death penalty. As stated, it does not mean Florida cannot impose the death penalty; it just means that Florida needs to get its death penalty procedure in line with the Constitution by relying on the jury rather than the judge. In the meantime, the Florida legislature has passed new laws that presumably bring the Florida death penalty procedure in conformity with the Constitution.
More importantly for some defendants, what does this mean for defendants in pending cases where the state is seeking the death penalty in Florida but there was no legal death penalty procedure at the time? In two pending murder cases near Jacksonville, Florida, the state filed a notice of intent to seek the death penalty although the Florida death penalty scheme had been ruled unconstitutional at the time. In each case, the criminal defense lawyer objected to the notice arguing that there was no current death penalty procedure in Florida so the state could not pursue it at that time. The criminal defense attorneys argued that it is also unconstitutional to apply the new death penalty laws to people who committed the crimes before they were passed. This is called an ex post facto violation.
This issue was recently decided by a Florida appellate court in a district outside of Jacksonville. The court held that the state attorney’s office has the sole discretion to seek the death penalty in criminal cases where it is allowed. It is not up to the court. Also, the court held that applying a new death penalty procedure that was enacted after the crimes were committed and charged would not be an ex post facto violation because this law change is a procedural change which does not implicate ex post facto legal principles. Therefore, defendants with pending cases could be subject to the death penalty in Florida.
It is important to note that this decision comes from a Florida appellate court. Other appellate courts, including the first district where Jacksonville is located, might disagree. Ultimately, this decision may have to be resolved by the Florida Supreme Court.