News from Florida Capital Resource Center

United States Supreme Court Declares Florida's Death Penalty Statute Unconstitutional

The Supreme Court has just found Florida's death penalty unconsitutional in an 8-1 decision.    Timothy Hurst was sentenced to death for a 1998 homicide in Pensacola. 7 of the 12 jurors recommended a death sentence to the judge who ultimately imposed the sentence.   Mr. Hurst's case has been remanded to the Florida Supreme Court for harmless error analysis.

Unanimous Jury Legislation Passes Senate Criminal Justice Committee

Posted March 16, 2015

Earlier this afternoon, the Florida Senate took up Senate Bill 664 in the Criminal Justice Committee and voted to approve the Bill by a vote of 5-0. 

The Bill, sponsored by Senator Thad Altman, requires jurors to be unanimous both in their finding of aggravating circumstances and in their recommendation of the death penalty.  Under current law, there is no requirement that jurors agree on any single aggravating circumstance before recommending the death penalty, a rule that for years has been challenged by attorneys as unconstitutional pursuant the United States Supreme Court's interpretation of the Sixth Amendment in Ring v. Arizona, 536 U.S. 584 (2002).  Notably (and as reported on below), the U.S. Supreme Court last week granted certiorari in Hurst v. Florida to review that very issue.  Florida is now the only state in the country without such a requirement.

Florida is also one of just two states that still allow a simple majority of jurors to recommend the death penalty, the other being Delaware.  A third state, Alabama, requires no less than 10 jurors to recommend the death penalty.  Every other death-penalty state, as well as the federal courts, require a jury to be unanimous in order to impose the death penalty, and SB 664 would thus bring Florida in line with these other jurisdictions.

But the lack of a unanimity requirement is also an anomaly within Florida law as well.   As several speakers noted when addressing the Committee, the only time jurors are not required to make a unanimous decision in all of Florida law - criminal or civil - is when they are deciding whether to recommend someone be put to death, arguably the most important decision jurors are ever asked to make.

The Florida Supreme Court first called upon the Legislature to make these changes in the 2005 case State v. Steele, 921 So. 2d 538 (Fla. 2005), but the Legislature has been reluctant to make any changes to the current sentencing law.  This is the fifth consecutive year that Sen. Altman has introduced such legislation, yet this is the first time that it has actually made it through a committee of reference - an important step toward finally enacting the proposed changes.

Although Sen. Rob Bradley had opposed such legislation in the past, he said that after really struggling with the issue, he now believes "it's time" for Florida to take action and require unanimity in capital sentencing. Understandably, several others expressed similar struggles, though all agreed that this is an important measure for Florida to adopt.

Given the substance of the Bill, perhaps it is fitting that the Committee approved it by a unanimous vote of 5-0.  

You can keep up to date with this and other important legilsation on our Proposed Legislation Page.

U.S. Supreme Court Agrees to Hear Ring Challenge to Florida's Death Penalty Statute (finally)!

Posted 3/9/2015

Earlier this morning, the United States Supreme Court granted certiorari in Timothy L. Hurst v. Florida, Case No. 14-7505.  The grant for certioari reads as follows: 

The motion of petitioner for leave to proceed in forma pauperis is granted.  The petition for a writ of certiorari is granted limited to the following question: Whether Florida's death sentencing scheme violates the Sixth Amendment or Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U.S. 584 (2002).

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme Court held that any fact that raises the maximum punishment available to a defendant is the functional equivalent of an element of the crime, and therefore the Sixth Amendment requires that such facts must be found by juries - not judges.  In Ring v. Arizona, the Court held that aggravating circumstances meet this definition because at least one aggravating circumstance must be found to exist before the death penalty may be imposed.  The Court thus struck down Arizona's capital sentencing statute because judges made all findings regarding aggravating circumstances during a sentencing proceeding that took place without the presence of a jury.

The Florida Supreme Court has never determined how this ruling applies to Florida's capital sentencing statute.  In Florida, juries are present for the sentencing proceedings.  Evidence of aggravating and mitigating circumstances is presented and the jury is told that, based on that evidence, it must make a recommendation as to whether the court should impose life imprisonment without the possibility of parole or the death penalty.  However, the jury never reveals which aggravating circumstances it finds, or how many jurors agreed as to their existence; all the jury conveys to the court is whether it recommends life or death.  Then, at a subsequent hearing that takes place without the jury, the court reviews the evidence and makes its own findings of aggravating and mitigating circumstances to determine the ultimate sentence.  The court's findings on aggravating circumstances are the only findings found in the record.

Defense attorneys have argued for years (since Ring was decided in 2002) that this system is unconstitutional as it violates the Sixth Amendment requirements announced in Ring.  While the Florida Supreme Court has refused to decide this issue, the United States Supreme Court has finally agreed to hear the case.

Meanwhile, the Florida Legislature is currently considering pending legislation that would fix this problem by requiring jurors to unanimously agree on aggravating circumstances and to announce which aggravating circumstances they found to exist.  Such requirements are imposed in every death penalty state but Florida.  The legislation would also require the jurors to be unanimous before they could recommend the death penalty.  Of the 32 states that have capital punishment, only Florida and Delaware continue to allow a simple majority of seven jurors to recommend the death penalty; Alabama requires a minimum of ten jurors, while the rest require unanimity. 

You can follow progress on this legislation by visiting our Proposed Legislation page.   

Florida Supreme Court Issues Stay of Execution Pending Outcome of OK Lethal Injection Review

Posted Feb. 17, 2015

The Florida Supreme Court has issued a stay of execution for Jerry William Correll pending the U.S. Supreme Court's review of Oklahoma's lethal injection protocol.  Correll was scheduled to be executed next Thursday, Feb. 26 at 6pm.

As reported here earlier (and can be seen below), the U.S. Supreme Court agreed last month to hear Glossip v. Gross, Case No. 14-7955 (U.S. Jan. 23, 2015), a challenge to Oklahoma's lethal injection protocol, primarily focusing on that state's use of midazolam hydrochloride in its three-drug lethal injection cocktail.  It is believed that midazolam is the cause of a recent string of botched executions in Oklahoma, Ohio, and Arizona during which inmates appeared to be writhing in pain and gasping for air before eventually succumbing to cardiac arrest.  

While Florida has yet to experience similar problems, Justice Sotomayor points out that may be simply because under Florida's lethal injection protocol, the injection of midazolam is followed by an injection of the paralytic vecuronium bromide, possibly leaving the inmate conscious but unable to move.  Florida was the first state to adopt midazolam as part of its lethal injection protocol.

Florida Supreme Court Chief Justice Jorge Labarga wrote that "a stay pending determination of the issue . . . will ensure that Florida does not risk an unconstitutional execution, a risk that would threaten the viability of Florida's entire death penalty scheme."  Meanwhile, U.S. Attorney General Eric Holder has called for a nation-wide moratorium until the U.S. Supreme Court resolves the case. 

Read Florida Supreme Court Order Issuing Stay of Execution for Jerry William Correll

U.S. Supreme Court to Hear Case on Lethal Injection Protocol

Posted January 23, 2015

The United States Supreme Court announced earlier today that it will hear a challenge to the lethal injection protocol used in the State of Oklahoma, specifically focusing on the inclusion of the drug midazolam hydrochloride.

States began using midazolam hydrochloride for lethal injections in 2013 after the more traditional pentobarbital sodium became increasingly difficult to acquire, largely due to the manufacturers' determination to avoid its use in executions.  Florida was the first state to add midazolam to its lethal injection cocktail and continues to use midazolam for executions today.  However, the use of midazolam has become the subject of significant controversy after causing botched executions in Ohio, Oklahoma, and Arizona during which inmates were left gasping for air, convulsing, and writhing in pain.  

The Oklahoma challenge was raised by death rown inmates Charles F. Warner, Richard E. Glossip, John M. Grant, and Benjamin Cole.  While the latter three have pending death warrants, Warner was executed last Thursday - the same night Florida executed Johnny Shane Kormondy.  The Supreme Court denied a stay for Warner, but Justice Sotomayor wrote a strongly-worded dissent to the denial that was joined by Justices Breyer, Ginsburg, and Kagan.   

Midazolam, an anaesthetic, is used to render the inmate unconscious so that he or she will not experience any pain associated with the other drugs used to stop breathing and cause cardiac arrest.  Midazolam's effectiveness at achieving this goal, however, has been seriously brought into question.  Although Florida has yet to experience the problems with midazolam seen in other states, the Oklahoma case could certainly affect Florida's lethal injection protocol.  

Oral arguments are expected to take place in late April or early May, and we will be sure to post updates as the case progresses.

Click here to read Justice Sotomayor's Dissent

Click here to read more information at SCOTUSblog

**UPDATE** Jan 28, 2014 - Stays of execution have been granted for the three other Oklahoma inmates pending the outcome of this case.  Glossip, et al. v. Gross, Case No. 14-7955 (U.S. Jan. 23, 2015)

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