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Florida Legislature Sets Stage For Quick Death Penalty Fix

Feb 20, 2017
Originally published on February 17, 2017 3:34 pm

Florida lawmakers seem likely to approve unanimous jury sentences for death penalty cases in the opening weeks of this year’s legislative session.  But some warn there could be another crisis around the corner.

Florida’s legislative session doesn’t officially begin until March 7, but death penalty fixes are just days away from their final committee stops in the House and Senate.  The measures are identical in purpose and narrow in scope: everything about the current law stays the same, but 12 rather than 10 jurors will have to agree before recommending a death sentence.

“The bill changes the requirement for a jury recommendation from 10-2 currently in the statute to unanimous,” Rep. Chris Sprowls (R-Palm Harbor) says.  “The goal of the bill is to have a working death penalty statute in the state of Florida.

Sprowls is sponsoring the measure in the House.  The move to unanimity is receiving plaudits from activists and attorneys historically critical of the state’s capital punishment scheme.  Still, Polk County Public Defender Rex Dimmig warns it would be a mistake to assume the system is on firm footing.

“If Florida is to continue to have a death penalty, comprehensive reform is needed,” Dimmig says.  “This bill is required to bring our procedures within constitutional requirements right now but will not address those other issues.”

Dimmig points to the state’s extensive list of aggravating factors—elements of a crime necessary to raise a sentence from life to death.  The wide array of factors might be susceptible to legal challenge because it may not adequately narrow the population eligible for the death penalty. 

And then there’s the question of retroactivity.  Florida’s high court has so far ordered new hearings in any non-unanimous cases finalized after June of 2002.

“Now you’ve got an equal protection argument,” Dimmig says. “Those who are sentenced before 2002 do not get relief.  Those who are sentenced after 2002 do get relief.  So it has raised more litigation, it has not brought finality.”

In the Senate, Democrat Randolph Bracy made a half-hearted attempt to address the issue.  He offered an amendment stating it was the Legislature’s intent for the unanimous standard to apply to every person on death row.  He quickly withdrew the amendment for lack of votes. 

But even if those problems lie far down the road, Michael Radelet warns the deluge of new proceedings for cases after the cut off will still stress the criminal justice system.

“There have been 201 people sentenced to death since that date,” Radelet says.  “Of those we know of at least 134 where the judge has sentenced the guy to death after juries had returned a non-unanimous verdict.”

Radelet is a sociology professor in Colorado who has been cataloging capital cases since 1979.  He teamed up with New Orleans capital defense attorney Ben Cohen to analyze how many inmates might get new hearings.  A state office responsible for tracking cases lost funding in 2011.  They warn their data are incomplete and 134 is the minimum likely to receive new hearings.  And like Dimmig, Cohen criticizes the court’s cut-off.

“There are people who were raising this claim, who were pointing out the problem in the late 1980s and 1990s,” Cohen says, “and because they were too early the courts aren’t granting them relief.”

“It seems both arbitrary and cruel.”

Representative Sprowls, a lawyer by training, doesn’t like the partial retroactivity ruling either but he says it’s not the Legislature’s place to change the court’s decision. 

The House measure is set for its final committee stop Tuesday.  The Senate version goes before its final panel a day later.  

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