Elise Gregg / Staff Writer
Death penalty law has a long and controversial history in Florida and FIU law students are able to study this at the Death Penalty Clinic located in the Rafael Diaz Balart Hall.
The clinic is a one-semester course where students assist capital defense attorneys (lawyers who defend clients on trial who may be sentenced to death), learn how to represent clients as well as the basic components of the death penalty process.
But, while students learn on the job at the clinic, they may be in for some changes as a result of a recent Florida Supreme Court decision reversing the requirement of jury unanimity to recommend the death penalty.
As of 2020, 26 states in the U.S., including Florida, retained the death penalty. Until January of this year, a court issue filed by the state required a unanimous jury recommendation in all of these states except for Alabama.
However, Florida joined Alabama on Jan. 23rd of 2020 in allowing judges to sentence defendants to death without a jury’s recommendation when Florida’s Supreme Court overturned its 2016 Hurst v. State decision allowing death sentences to be instituted only if a jury unanimously recommended it.
PantherNOW spoke with Hannah Gorman, director of FIU’s Death Penalty Clinic, and Randolph Braccialarghe, a professor of law at Nova Southeastern University, about the reasoning behind the Florida Supreme Court’s decision and what it means for the future of death penalty cases in Florida.
There are three main cases involved in the decision: Hurst v. Florida (Jan. 12, 2016), Hurst v. State, (Oct. 14th, 2016), and State v. Poole (Jan. 23rd, 2020).
In summary, the original requirement for jury unanimity came from Hurst v. Florida. The case was appealed to the U.S. Supreme Court, on January 2016 ruling that Florida’s death penalty process is unconstitutional.
Specifically, it said relying solely on judges to do the fact-finding for death sentences and leaving the jury only as an advisory role, was not constitutional.
In October of that year, the Florida Supreme Court agreed with that ruling and added more requirements.
In its own ruling on Hurst v. State, it added that to impose a death sentence Florida juries must unanimously find aggravating factors that make someone eligible for the death penalty.
This would have to be proven beyond a reasonable doubt, and outweigh mitigating factors (reasons that a jury would choose a life sentence over the death penalty), and are significant enough to impose death. This case also introduced the requirement for jury unanimity.
Four years later, the Florida Supreme Court changed their mind.
Under new justices, it recently issued a ruling in State v. Poole, arguing that the previous Hurst v. State decision had misinterpreted the U.S. Supreme Court’s opinion in Hurst v. Florida.
This means prisoners up for resentencing because of the change in law from Hurst v. Florida are now on hold, with uncertain legal sentences.
The major point justices made in the Poole ruling was that the previous justices misunderstood the difference between finding the defendant eligible for the death penalty and actually imposing the sentence in their interpretation of the Hurst v. Florida case.
In this summary they point to section 921.141(3), Florida Statutes (2010), saying “the [U.S. Supreme] Court noted Florida law required the judge, not the jury, to find the ‘facts’ necessary to impose the death penalty.”
The document also states that “the Court emphasized that Florida’s capital jury does not make specific factual findings about aggravators and mitigators and that the jury’s recommendation is not binding on the trial judge.”
In short, the Florida Supreme Court said the 2016 decision overlooked the differences between finding a defendant guilty of a crime and actually sentencing them to death in the capital decision-making process, as well as overstating the jury’s role in a case.
From some perspectives, the original Hurst v. Florida ruling itself was unconstitutional.
Professor Braccialarghe said that the U.S. Supreme Court has made a practice of interpreting the U.S. Constitution on its own terms.
Braccialarghe called the 2016 ruling “extra-constitutional”, or outside the explicit outline of the constitution.
“It wasn’t based on our [U.S.] Constitution,” said Braccialarghe. “It was almost an outlaw decision.”
Gorman also said the decision was extra-constitutional, but that it was not necessarily wrong.
“In Poole v. State, they certainly say that [jury unanimity] is not constitutionally required,” Gorman said, “but there is nothing to prevent Florida statute [from] going beyond what they interpret as the [Florida] Constitution.”
Much of the contention regarding both Hurst and Poole comes from differing legal interpretations, the standards that currently exist for capital punishment, and what is considered good practice in terms of applying the law.
“It’s because we have standards of reliability…we have due process rights,” Gorman said, adding that jury unanimity can be a good way to ensure defendants get a fair trial.
However, Braccialarghe pointed out that these rulings bring into question the role of the judicial branch in making decisions like the Hurst and Poole verdicts.
“[The U.S. Supreme Court] decided to take the judge out. They’re doing their best to be legislators,” Braccialarghe said.
Braccialarghe thinks the current Florida justices reversed the 2016 ruling to turn down the power to change the law that should belong to the legislative branch.
Braccialarghe explained the current Florida Supreme Court is giving up the previous justices’ claim to legislative power in ruling that juries had to be unanimous.
“[The reason for that] has to be because those [previous] justices decided they knew better than 20 million Floridians whose views are represented by their elected representatives,” Braccialarghe said.
Several other factors may have also led to the reversal of the 2016 decision.
Florida’s retirement law meant that since 2016, four out of seven judges have had to step down, changing the makeup of the court.
As of now, the court also consists of only five members: two of the former justices left to assume appellate court positions.
Gorman believes this may have had much to do with the reversal.
“I think [the decision] was probably already written [before State v. Poole],” Gorman said, “I think other lawyers may certainly disagree with me, but my instincts would be that Poole just happened to be the case that was at the right time.”
Out of the five justices, Judge Jorge Larbarga dissented from or disagreed with, the majority in the January decision with serious concerns over what this means for Florida’s identity as a state that permits the death penalty.
“[The court] has taken a giant step backward and removed a significant safeguard for the just application of the death penalty in Florida,” Larbarga wrote in his dissent.
Larbarga added that this decision would make Florida abnormal among death penalty states and that the reversal was inconsistent with federal laws and those of other capital punishment states.
However, the change has only been considered by Florida’s judicial branch — not the state legislature.
“Importantly, what Poole has not done has changed our statute,” Gorman said, as the decision has not yet been passed through legislation.
However, the implications of this decision are significant, with numerous prisoners up for resentencing. Before the reversal, most defendants who received death sentences and sought resentencing were sentenced to life in prison instead. Now, prisoners appealing for a new sentence face uncertainty.
“What it means now is we’ve got a hundred people who were in the process of getting ready to go for their new trial,” said Gorman. “so they’re all on hold, backed up, waiting for the Florida Supreme Court to tell them how their cases are going to be impacted.”
Gorman also said if the decision is made into law, we may see a large increase in litigation challenging Florida’s death penalty law.
“[If this goes through litigation] ultimately we would end up back at the Supreme Court of the United States,” Gorman said, “And who knows what that decision will now look like? So wait and see.”
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