While the state’s death penalty hangs in the balance, the debate continues
Raoul Cantero, Dara Kam, Hank Coxe, and Martha Barnett.
Politically, what would it take to make Florida the 21st state to abolish the death penalty?
Only 16 out of 3,000 counties in the nation have imposed five or more new death sentences since 2010, and one of them is Duval County.
Those hot topics came up during The Florida Bar’s Reporters’ Workshop on September 20, when former Florida Supreme Court Justice Raoul Cantero moderated a panel titled “Death Penalty: A Look at the Hurst Case.”
Panelists — Martha Barnett, a retired senior partner at Holland & Knight, who asked for a moratorium on the death penalty when she served as ABA president; Hank Coxe, a former Florida Bar president and Jacksonville defense attorney; and Dara Kam, a reporter for the News Service of Florida — delved into the history of Florida’s death penalty, the politics surrounding capital punishment, and the evolving public sentiment against the death penalty.
Meanwhile, they explained, Florida’s death penalty hangs in limbo while waiting for the Florida Supreme Court to rule on two questions:
Did Hurst v. Florida, the United States Supreme Court case in January, declare Florida’s death penalty unconstitutional?
If not, do the Florida Legislature’s repairs to the statute in 2016 apply retroactively?
Those questions were certified by the Fifth District Court of Appeal as matters of great public importance. Oral arguments were heard in June in Larry Darnell Perry v. State of Florida (SC16-547). Two executions scheduled for February and March have been stayed. Generally, the prosecution of death penalty cases in Florida has been held in abeyance. And a federal case in Jacksonville, regarding the constitutionality of the lethal injection process, has been put on hold.
“The new elephant in the room is unanimity,” Cantero said. “When I was on the court, I wrote a decision in State v. Steele. In that case, we said the Florida scheme was constitutional, but we questioned whether a jury recommendation [for death in the penalty phase of a murder trial] by a 7-5 vote was constitutional. We suggested that the Legislature change it to require unanimity.”
At that time, Cantero said, while 38 states had the death penalty, Florida was the only state in the nation that did not require some form of unanimity in either determining whether an aggravating circumstance exists to make a convicted defendant eligible for the death penalty or recommending the death sentence.
“When I say we are the only state, that means we are worse than Georgia, and Texas, and Alabama. And that’s pretty bad,” Cantero said. “All we were saying is maybe we shouldn’t be the only outlier state out there that doesn’t require some form of unanimity. Let’s be reasonable.”
Coxe, who has both prosecuted people sent to death and defended clients exposed to death, recapped how, in the most recent session of the Florida Legislature, the Senate wanted the jury’s recommendation for death to be a unanimous vote, and the House said, no, we shouldn’t require more than 8 to 4.
“They go back and forth most of the session and agree on 10. Keep us one of the outlier states, but we’ll make it 10,” Coxe said.
“That begs the question: Are there degrees of constitutionality?” Cantero asked. “Is 10-to-2 more constitutional than 7-to-5? If 7-to-5 is unconstitutional, then 10-to-2 doesn’t fix it.”
“Let’s name the culprit, who’s responsible,” Kam said. “The House went along with what the prosecutors wanted.. . . The argument has been that the United States Supreme Court has not required unanimity, and Hurst did not require unanimity.”
Cantero agreed: “Hurst did not address that issue. So where are we now after Hurst and after the 2016 amendments to the statute?”
First, Coxe explained the law in Florida before Hurst: “Very simply, if the defendant were convicted of first-degree murder, there would be a second phase, called the penalty phase. The state would be entitled to introduce evidence to establish one or more aggravating circumstances. The defendant would be entitled to establish, by a lesser standard, that there were mitigating circumstances. The jury would make a recommendation, if they found that aggravating circumstances outweighed the mitigating. And they could recommend death by a simple majority.”
Next, Barnett, a member of the 1997 Florida Constitution Revision Commission, launched into explaining the Hurst ruling that declared Florida’s sentencing scheme in death cases unconstitutional because it violated a defendant’s Sixth Amendment right to a trial by jury. In Florida’s old scheme, jurors only had an advisory role, and their simple-majority recommendation did not have to be followed by the judge. In that 8-1 Hurst decision (with Alito dissenting), Justice Breyer concurred, but referred readers to an earlier case in which he believes the death penalty is a violation of the Eighth Amendment against cruel and unusual punishment.
“So those are two very significant lines of legal authority and legal theory that are coming into play, as I think the death penalty ultimately peters out in this country altogether,” Barnett said. “But we’re not there yet.”
She recounted how she sat on the Constitution Revision Commission 20 years ago when the issue of unanimity came up.
“It was one of the proposals actually generated by the public, from some of the public comment. And there were members of the commission who felt very strongly that we should go to a unanimous verdict. But it did not pass,” Barnett said.
“I suspect we will see this issue come up in the next Constitution Revision Commission [meeting in 2017]. I doubt right now, unless the Supreme Court does more than they’ve done to date, I doubt it will fare much better than it fared 20 years ago.”
“I think the elephant in the room is: Is it going to be retroactive? I think there will be 388 people on death row sentenced to life,” Coxe said. “That’s a big question in Florida.”
“That is an open question now that the Supreme Court is considering,” Cantero said. “I will tell you, however, in terms of Ring v. Arizona, which also considered the death penalty in 2002, the Florida Supreme Court decided that Ring was not retroactive.. . . I don’t think the court is going to come down and say whether it is harmless or not harmless. I think it will take a case-by-case basis.”
“Keep in mind, if the Supreme Court of Florida says it is not retroactive, that is going to the United States Supreme Court,” Coxe said. “Just in the past two or three years, you had the Miller v. Alabama decision on juvenile mandatory life sentences, and they say it is retroactive. How do you predict when they say it is or it isn’t?”
Cantero said: “It’s very hard to predict.”
Reporters were given an August 23 story in The New York Times titled, “Where the Death Penalty Still Lives. As capital punishment declines nationwide, a tiny fraction of the country generates an alarming number of death sentences. What this new geography tells us about justice in America.”
“Today, polls show that more than 60 percent of Americans continue to favor capital punishment, though more than half say they would prefer to impose life without parole if given the option,” according to the NYT story.
The story reported that “20 states and the District of Columbia have abolished the death penalty. Four more have imposed a moratorium on executions. Of the 26 remaining states, only 14 handed down any death sentences last year, for a total of 50 across the country — less than half the number six years before.”
This question was asked of the panelists: As public sentiment shifts against the death penalty, how do you explain the disconnect with the public’s elected officials who support the death penalty? Why are we hopeless that, politically, Florida will not become the 21st state to abolish the death penalty?
“Martha and I sat on the Innocence Commission. It was several years before the Legislature would fund the Innocence Commission. Because, oh, they’re just a bunch of liberal whiners,” Coxe answered. “Then there was a senator whose circuit kept coming up with one exoneration after another. And he was embarrassed.. . . So they funded it. And then they realized how many exonerations were going on in the state of Florida. It may be the same kind of process. You just have to have events that people are so uncomfortable with.”
“How many events do we have to be uncomfortable with?” asked Kam.
“More than you’ve got,” Coxe said.
“I find it fascinating that I, as a reporter, start on the baseline that it is out of the question that Florida would ever do away with the death penalty,” Kam said. “The Legislature is just not going to do it. Certainly, in an election year, when they had to revisit Hurst and they were scared to death they would not have a death penalty. It was clear to me and everyone else they wouldn’t do away with it. Why won’t they do away with it?”
Cantero offered this insight: “I think one of the problems is the difference in passion between the death penalty proponents and the death penalty opponents. I think that a death penalty opponent will not vote against a legislator because the legislator wants to keep the death penalty. But a death penalty proponent will vote against a legislator who wants to do away with the death penalty. In other words, that becomes a single-issue voter, whereas the opponents of the death penalty aren’t necessarily single-issue voters.”
Not long ago in Virginia, Coxe pointed out, they realized they had executed an innocent person.
“Boy, did that get people’s attention! Maybe that’s what it takes,” Coxe said. “Not that I’m advocating executing an innocent person. But I’m saying it takes something phenomenal to get people’s reaction to it in this day and age. I’ve always said you can run for the St. Johns Water Management District on a campaign of being tough on crime. That’s just the way it is in this state.”
“You know what, I actually am a little more optimistic than you all are. I don’t think it’s going to happen any time soon. But things are beginning to come together,” Barnett said.
With the easy accessibility to data and facts, Barnett said, “We are able to actually put a face on the death penalty that is reality-based, not anecdotally based.. . . I am hopeful about the information we’ve recently gotten about the 16 counties in the country. If it’s only 16 counties in the country, that takes a lot of the political edge off of that.”
The facts support Justice Breyer’s concerns about the random geographical nature of the death penalty and that it is still race-based, Barnett said.
“Think about the cost. We can now calculate what it costs to keep somebody in in prison for life. The numbers I’m seeing are six to eight times more money to do a death case. And do we execute people? Not many.”
Consider also, Barnett said, that the family of the victims don’t get finality.
“I have some hope that, sooner or later, politicians are going to say, and the conservative justice person in me says, life in prison without parole is the most cost-effective, time-effective, victim-sensitive, human-sensitive way to proceed with this. As opposed to this myth that the death penalty is effective in doing anything, except perhaps killing a few people. There are some bad people who are no longer around.”
“Martha’s right. I probably am more cynical than she is,” Coxe said.
“I’m cynical,” Barnett retorted. “I’m just hopeful.”
