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Should the jury be unanimous to impose death?

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Should the jury be unanimous to impose death?

Court asks the legislature to consider it

Gary Blankenship
Senior Editor

In a death row case addressing other issues, the Florida Supreme Court has called on the legislature to consider requiring a unanimous jury to impose the death penalty.

The October 12 majority opinion, written by Justice Raoul Cantero, noted that other states with the death penalty as well as the federal government require either a unanimous vote in finding aggravating circumstances necessary or to impose the ultimate penalty, or both.

Chief Justice Barbara Pariente and Justice Charles Wells agreed in separate opinions, making the court’s request to lawmakers unanimous.

“The bottom line is that Florida is now the only state in the country that allows the death penalty to be imposed even though the penalty-phase jury may determine by a mere majority vote both whether aggravators exist and whether to recommend the death penalty,” Cantero wrote. “Assuming that our system continues to withstand constitutional scrutiny, we ask the legislature to revisit it to decide whether it wants Florida to remain the outlier state.”

Here’s how Cantero presented the breakdown of how the other 37 states with a death penalty proceed:

“[Thirty-five] require, at least, a unanimous jury finding of aggravators. Of these, 24 states require by statute both that the jury unanimously agree on the existence of aggravators and that it unanimously recommend the death penalty. Three states require by statute unanimity only as to the jury’s finding of aggravators. Seven more states have judicially imposed a requirement at least that the aggravators be determined unanimously. Of these seven states, five (all except Alabama and Kentucky) require that both the aggravators and the recommendation of death be unanimous. Alabama and Kentucky require only that the aggravators be determined unanimously. Although Missouri law is less clear, it appears that a jury at least must unanimously find the aggravators. That leaves Utah and Virginia. In those states, the jury need not find each aggravator unanimously, but the jury must unanimously recommend the death penalty.” [Citations omitted]

Cantero also noted that the federal death penalty requires a unanimous jury.

Justices Wells, R. Fred Lewis, Peggy Quince, and Kenneth Bell concurred in Cantero’s opinion.

Justice Wells, in his concurring opinion, wrote to expand on the jury unanimity issue. He noted that Florida law had changed since the statute was passed allowing aggravating factors to be found and the death penalty to be imposed by majority vote. The main one, he wrote, was in 1994, when the law was changed so that the life sentence, the only alternative to the death penalty in those capital cases, meant life without parole. Gain time has also been removed for those inmates.

“Life has been mandated to mean life,” Wells wrote.

He also noted that when it wrote the federal death penalty statute in 1994, Congress had the benefit of the various state laws.

“Two important procedures under the federal act are relevant to the present discussion,” he said. “The federal act requires notice to the defendant setting forth aggravating factors that the government proposes to prove as justification for a sentence of death [a factor in the underlying case the justices were deciding]. The federal act also requires that a decision for a death sentence be made by a unanimous jury.”

Further, the U.S. Supreme Court in a string of recent decisions has upheld and strengthened the doctrine that the death penalty must be imposed by the jury, not the judge. Wells wrote that the four other states like Florida where the jury and judge shared that responsibility have made changes.

While the U.S. Supreme Court had upheld the Florida system, it has not reviewed it since those more recent decisions, Wells noted.

“I do believe these Supreme Court decisions have brought about a need for the legislature to undertake an assessment and revision of Florida’s statute,” Wells argued. “.. . I believe the excellent research set out in Justice Cantero’s majority opinion, with which I agree, further demonstrates the real need to address this issue.”

He went on to suggest legislators look to the federal law as a model.

Justices Cantero and Kenneth Bell concurred with Wells.

Chief Justice Pariente, joined by Justice Harry Lee Anstead, concurred and dissented with the main opinion, but began her opinion by agreeing that the legislature should reconsider the death penalty law.

She wrote: “I concur wholeheartedly in the majority’s call for legislative reevaluation of Florida’s capital sentencing scheme to determine whether jurors should be required to unanimously decide whether death should be imposed as well as make unanimous findings on the existence of aggravating factors. I also agree with Justice Wells that the legislature should look to the federal death penalty as a model in requiring both advance notice of aggravating factors and unanimity in the jury’s decision for death.”

The court’s ruling came in State of Florida v. Alfredie Steele, case no. SC04-802.

The main part of the opinion addressed these two certified questions:

“(1) Does a trial court depart from the essential requirements of law, in a death penalty case, by requiring the state to provide preguilt or prepenalty phase notice of aggravating factors?

“(2) Does a trial court depart from the essential requirements of law, in a death penalty case, by using a penalty phase special verdict form that details the jurors’ determination concerning aggravating factors found by the jury?”

The court answered no to the first question and yes to the second.

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