Death penalty fix is on the move
Death penalty fix is on the move
Senior Editor
In hopes of healing what House Judiciary Chair Chris Sprowls called “paralysis” in capital cases in Florida, both chambers passed bills to require unanimous jury verdicts in the penalty phase of murder trials in order to impose the death penalty.
“A real crisis in the criminal justice system,” is how Buddy Jacobs, general counsel for the Florida Prosecuting Attorneys Association, described the current situation of 313 pending death cases across Florida’s 20 judicial circuits — of which 66 are ready for trial — that has ground to a halt until the Legislature acts to fix the statute.
Jacobs told the House Criminal Justice Subcommittee on February 15, before the unanimous vote for HB 527, that he hopes the bills will be debated on the floors of both the House and Senate the first week of the legislative session that begins March 7.
On February 6, SB 280, sponsored by Senate Criminal Justice Committee Chair Randolph Bracy, D-Ocoee, passed unanimously. Last year, the Senate wanted unanimous jury verdicts in the penalty phases of death cases, but reached a compromise with the House for a 10-2 vote.
The Florida Supreme Court said in October 2016 in Hurst v. State that was not good enough, and unanimity is required. The same day, the Florida Supreme Court issued its opinion in Perry v. State, finding that the 2016 statute could not be applied to pending prosecutions because the current law only requires a 10-to-2 vote for death.
“The death penalty is a controversial topic. I talk to citizens, members of the Legislature on both sides of the aisle and both chambers about the death penalty. And there is quite a disparity about where people fall,” Bracy said.
“But the one thing that has been consistent is that people have told me that the death penalty should be a last resort. And if the death penalty is implemented, the crime should be worthy of death. I think we are getting a lot closer to that by requiring a unanimous jury, making sure all agree that the crime is worthy of death.”
Both public defenders and state attorneys support Bracy’s bill.
Tenth Circuit Public Defender Rex Dimmig, representing the Florida Public Defender Association, called it “a required first step in death penalty reform in this state. But let me stress it is a first step, not a final solution. It corrects the Sixth Amendment problems that were identified in Hurst v. Florida [a 2016 U.S.S.C. decision] and makes our death penalty procedures constitutional for now. It does not mean that our procedures will be constitutional in the future. Other constitutional objections will continue to be litigated.”
A problem, Dimmig pointed out, is that “at least since 1983 the U.S. Supreme Court has spoken of the constitutional requirement that the class of people eligible for the death penalty must be genuinely narrowed.”
Yet, Dimmig said, when Florida first enacted death penalty procedures in 1972 after Furman v. Georgia, there were eight aggravating factors, and now they have doubled to 16.
“This bill addresses the Sixth Amendment challenge, and we strongly support it as a first step,” Dimmig said.
“But we hope as this legislation moves forward in future years, there will be a more comprehensive review of Florida’s death penalty so that we address not just the concerns that have been addressed by the court immediately, but we look toward the future issues that will be raised and address those.”
The current directive from the Supreme Court is that the jury verdict be unanimous in both the guilt and penalty phases.
“Mr. Chairman, your bill does that and we thank you so much on behalf of not only the state attorneys of Florida but the victims of these terrible crimes that are left in limbo without your good legislation,” Jacobs told Bracy.
Sen. Jeff Clemens, D-Lake Worth, said: “I disagree that none of us know what the Supreme Court is going to do. We all knew we were going to be back here. We made that statement in committee last year on this issue, and yet we went with 10-2. And here we are again.
“So, I think when we hear comments that we are probably going to come back again, I’m making that prediction right now that we will be back again talking about aggravating factors.. . . We do it just enough each year to make us feel good, and we have to come back and redo it again.”
Clemens noted that it only takes one aggravating factor for a convicted murderer to qualify for the death penalty. He listed the following:
• “If the defendant was a criminal street gang member; death penalty.
• “If the victim was less than 12 years of age; death penalty.
• “If the victim was an elected or appointed official; death penalty.
• “If the defendant was engaged in drug trafficking; death penalty.”
“We are going to be back here next year or the year after talking about these aggravating factors,” Clemens predicted.
“I’m hoping as this bill moves forward, and maybe when we get to the floor, we can actually talk about changing it in a way we won’t have to come back every year and fix it. That being said, at least we are fixing the thing that we need to fix.”
Rep. Sharon Pritchett, D-Miramar, the Democratic ranking member of the House Criminal Justice Subcommittee, said she supports the bill to move it through the process,
but she wants to see a structure in place for a comprehensive study of the flaws in the death penalty sentencing process before it hits the House floor, or else she may vote no.
