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Florida Ponders Death Penalty Fix After Supreme Court Strikes Down System

woman with sign that says, "Stop State Killing"
Kurt and Sybilla via Flickr

Florida lawmakers are pledging to remedy the state's death-penalty sentencing structure after the U.S. Supreme Court ruled last week that the state's method of giving judges the power to impose death sentences is unconstitutional.

But legal experts fear that the Legislature's fix may only be a temporary solution for the capital punishment process, one of the most complicated legal arenas rendered even thornier after last Tuesday's decision.

Days after the 8-1 ruling, leaders in the Republican-controlled Legislature, as well as judges, defense lawyers and prosecutors,  were scrambling to sort out the implications of what some called a deceptively simple order.

What is clear is that lawmakers intend at the very least to resolve the main issue addressed by the court in the case, known as Hurst v. Florida.

"This is something that we have to do," House Judiciary Chairman Charles McBurney (R-Jacksonville), said. "We will be addressing the issue, which was raised specifically by the Supreme Court in that decision, and then looking beyond the narrow decision to see how it affects other aspects of the death penalty statute to ensure its future constitutionality as well."

Florida requires juries to make recommendations to judges regarding the death penalty after considering aggravating and mitigating circumstances, with judges’ ultimately imposing the sentences.

But Florida's unique law giving judges the power to decide whether defendants should face death equates to an unconstitutional violation of the Sixth Amendment right to a trial by jury, Justice Sonya Sotomayor wrote in the majority opinion.

The ruling did not address whether juries' decisions about imposing death sentences should be unanimous, as is required for convictions. Among the 31 states that have capital punishment, Florida is one of only three states that do not require unanimous decisions regarding death sentences.

Two other Florida cases that deal with the unanimity issue are now pending before the U.S. Supreme Court.

Lawmakers are exploring the issue of unanimous decisions and whether the Hurst ruling should apply retroactively to inmates already sentenced to death.  Attorney General Pam Bondi's lawyers, who represent the state in death penalty cases, contend that it should not.

At the same time, the Florida Supreme Court has ordered oral arguments to hear about the potential impact of the Hurst decision in the case of Cary Lambrix. He is a convicted murderer who has been on Death Row for more than three decades. He asked the court to indefinitely postpone his execution, scheduled for Feb. 11, after the U.S. Supreme Court's ruling.  

Sen. Rob Bradley (R-Fleming Island) is a former prosecutor whose law firm represents a defendant who could face the death penalty. He says, "I think that when we consider how our death penalty system is structured, we need to be clear-eyed in making sure that it can withstand not only the current legal situation but future legal challenges.”

But, in an election year in which swing-state Florida is considered critical for a Republican White House win, whether GOP lawmakers will pass any legislation that could be perceived as watering down the death penalty is questionable.

Speaking to reporters last week, Senate President Andy Gardiner said he had "mixed emotions" about unanimous jury requirements.

"I think you'll see us more focused on the Supreme Court ruling as opposed to the unanimous side," Gardiner (R-Orlando) said.

But doing the minimum to conform Florida law with the high court ruling is problematic, said Florida International University law professor Stephen Harper, who runs the school's Death Penalty Clinic.

"My hope is that the Legislature goes far enough to require unanimity in both the decision that somebody is death eligible and that somebody will get the death penalty. And if they don't do that, they're only inviting more litigation and waiting for the next shoe to drop. They may fix it temporarily, but they're not going to fix it permanently," he said. "They're only going to put a Band-Aid on a much bigger problem."

The Hurst decision also likely comes with a price tag for Florida taxpayers. Prosecutors, public defenders and state-paid lawyers representing Death Row inmates told lawmakers the ruling will increase their workloads.

"The potential impact is, at a minimum, you're going to see a lot of litigation from individuals in the pipeline that we thought were already out of the pipeline," 8th Judicial Circuit State Attorney William Cervone told a Senate budget committee last Wednesday.

It is unclear how many of the 390 prisoners on Florida's Death Row — the second highest-number in the nation — may be affected by the decision.

"In theory, any defendant who raised this specific issue on appeal would have an argument to go back. We don't know how many that will be," said Rep. Jose Javier Rodriguez (D-Miami), who has renewed his push for unanimous jury verdicts to impose the death penalty.

The sentencing issue has a special sense of urgency because two Death Row inmates are scheduled to be executed in February and March.

This month, Scott ordered Mark James Asay to be executed on March 17. Asay's lawyer, Marty McClain, said the U.S. Supreme Court decision is more complicated than lawmakers may realize.

McClain contends that the ruling combined with current Florida law require a unanimous jury decision to impose the death penalty because state law requires unanimous jury verdicts to convict defendants of capital murder.

"The Hurst v. Florida opinion is very subtle. It takes a while to understand all that's there," McClain said. "The problem with the state's position is they've oversimplified this. They just want it to go away."

© 2016 The News Service of Florida. All rights reserved.

Photo "Stop State Killing" used under Creative Commons license. 

Dara Kam is the Senior Reporter of The News Service Of Florida.