Florida Supreme Court Strikes Down State's Capital Sentencing Statute, Requires Jury Unanimity Before Imposing Death

The Florida Supreme Court has declared unconstitutional the state’s practice of permitting judges to impose death sentences based upon a non-unanimous jury recommendation for death. In two rulings issued October 14 the court held that juries must unanimously find all facts necessary to impose a death sentence, including the existence of any aggravating factor relied upon as a reason to impose the death penalty, whether the aggravating factors in and of themselves provide sufficient grounds for imposing the death penalty, and whether the aggravating factors outweigh the mitigating circumstances (reasons for life) presented by the defense. In the first case, Timothy Lee Hurst v. State of Florida, the court vacated Hurst's death sentence imposed and remanded his case for a new sentencing hearing. The second decision, Larry Darnell Perry v. State of Florida, struck down the Florida legislature's March 2016 revision of the state’s capital sentencing statute because it does not require a unanimous jury recommendation of death before the trial judge can consider imposing a death sentence. Hurst is the same defendant whose appeal reached the U.S. Supreme Court earlier this year, resulting in an 8-1 decision declaring that the state's prior capital sentencing statute violated the 6th Amendment right to a jury trial by reserving for the judge, rather than the jury, the ultimate power to find the facts that could lead to a death sentence. The Court specifically held that the statute impermissibly denied Hurst a jury finding of aggravating circumstances that could make him eligible for the death penalty. In response to the Court's decision, the Florida legislature amended the statute to require juries to unanimously find at least one aggravating circumstance, but allowed the jury to recommend a death sentence if at least 10 of 12 jurors agreed. The court’s decision in Hurst made clear that the statute violated Florida state constitutional provisions requiring unanimous jury verdicts, as well as federal constitutional law. In Perry, the court struck down the amended death penalty law, saying the statute "cannot be applied constitutionally to pending prosecutions because the Act does not require unanimity in the jury’s final recommendation as to whether the defendant should be sentenced to death." While the decision in Hurst says that defendants sentenced to death under the unconstitutional sentencing procedures are not entitled to have their sentences automatically reduced to life in prison, it leaves unclear exactly what will happen in the cases of the approximately 400 people on the state's death row.

U.S. Supreme Court Denies Review of Arizona Case That Could Overturn 25 Death Sentences

In a decision that could affect an estimated 25 Arizona death penalty cases, the U.S. Supreme Court has denied Arizona's request to review a federal appeals court decision declaring unconstitutional an evidentiary rule that limited the types of mitigating evidence capital defendants could present in their cases. The ruling in Ryan v. McKinney let stand a 6-5 decision of the U.S. Court of Appeals for the Ninth Circuit in December 2015 that had reversed James McKinney's 1993 death sentence because the state's so-called "causal nexus" rule unconstitutionally excluded evidence about McKinney's abusive childhood and post-traumatic stress disorder. The Court's ruling could have implications for many of the prisoners on Arizona's death row. The causal nexus rule, which required that mitigating evidence be directly linked to the crime before it could be considered as grounds to spare a defendant's life, had been place in Arizona from the late 1980s until 2005. In 1978, the Supreme Court ruled in Lockett v. Ohio that states could not bar defendants from presenting mitigating evidence relating to their character, background, or record or the circumstances of the case as reasons to impose a life sentence. Four years later, in Eddings v. Oklahoma, it held that states could not require that evidence excuse the murder before it could be considered mitigating. Then, in 2004, in Tennard v. Dretke, it reiterated that any requirement that mitigating evidence have a direct causal link to the offense violated the Eighth Amendment. By denying review, the Supreme Court paved the way for other prisoners whose sentencing was affected by the causal nexus rule to challenge their death sentences. In a dissent to the Ninth Circuit decision, Judge Carlos Bea wrote that the majority decision, "calls into question every single death sentence imposed in Arizona between 1989 and 2005." McKinney's case will return to state court within 120 days for further proceedings, according to the Arizona Attorney General's Office. His re-sentencing must now be done by a jury because the U.S. Supreme Court 2002 decision in Ring v. Arizona ended the state's practice of judges imposing death sentences.

Wrongful Capital Convictions May Be More Likely in Cases of Judicial Override, Non-Unanimous Death Verdicts

New data suggests that states that capital sentencing statutes that permit judges to impose death sentences by overriding jury recommendations for life or after juries have returned non-unanimous recommendations for death may increase the risk of wrongful executions. In an article in the Yale Law Journal Forum, lawyers Patrick Mulvaney and Katherine Chamblee of the Southern Center for Human Rights report that in Alabama, the only state that still permits judges to override a jury's recommendation for life, override cases account for less than a quarter of death sentences but half of death row exonerations. They say that this may be a result of "residual doubt" among jurors, which they describe as “a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty,’” often resulting from weaker or more suspect evidence of guilt. Research has shown that when juror have such doubts, they are substantially more likely to vote for a life, as did jurors in the cases of Alabama death row exonerees Larry Randal Padgett (9-3 jury vote for life) and Daniel Wade Moore (pictured, left, 8-4 vote for life) and current death row prisoner Shonelle Jackson (unanimous jury life recommendation). Non-unanimous jury recommendations for death also appear to pose similar problems. Of Alabama's six death row exonerations, 83% involved either judicial override (3 cases) or non-unanimous jury votes for death (2 cases, including Anthony Ray Hinton, pictured, right). Data from Florida reveals a similar pattern: of the 20 death row exonerations for which information on the jury vote is available, 90% involved a non-unanimous recommendation for death, including three judicial overrides of jury recommendations for life. In 1984, U.S. Supreme Court Justice John Paul Stevens raised concerns about judicial override and wrongful convictions that are now supported by data: “It may well be that the jury was sufficiently convinced of petitioner’s guilt to convict him, but nevertheless also sufficiently troubled by the possibility that an irrevocable mistake might be made . . . that [it] concluded that a sentence of death could not be morally justified in this case.” Statutes permitting judicial override or non-unanimous jury recommendations for death have been under increased scrutiny since the U.S. Supreme Court's decision in Hurst v. Florida in January 2016. Hurst struck down Florida's sentencing statute saying, "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." Florida's legislature responded by ending judicial override and requiring juries to unanimously find aggravating circumstances in capital cases, though they may still make non-unanimous sentencing recommendations. The Delaware Supreme Court struck down its sentencing statute in light of Hurst in August 2016, leaving Florida and Alabama as the only states that still permit non-unanimous jury receommendations of death.  

Delaware Attorney General Will Not Appeal Decision Striking Down Death Penalty Statute

Delaware Attorney General Matt Denn (pictured) announced on August 15 that his office will not appeal the Delaware Supreme Court's August 2 decision in Benjamin Rauf v. State of Delaware, which struck down the state's death penalty statute. In Rauf, the court found that Delaware's capital sentencing scheme violated the Sixth Amendment, as interpreted by the U.S. Supreme Court in Hurst v. Florida, by granting judges, rather than juries, the ultimate power to decide whether the prosecution had proven all facts necessary to impose the death penalty. Delaware's statute had not required a unanimous jury determination of all aggravating circumstances that were considered in sentencing a defendant to death or a unanimous jury finding that those reasons for death outweighed mitigating circumstances. The Rauf decision intensifies the national spotlight on Alabama and Florida as the only states that still permit judges to impose death sentences after non-unanimous jury recommendations for death and on Alabama as the only remaining state to permit a judge to override a jury's life verdict. The statement of the attorney general's office said Denn "has concluded that even if the United States Supreme Court reversed the opinion on Federal Constitutional grounds, ... the Delaware Supreme Court would ultimately invalidate Delaware’s current death penalty statute based on the Constitution of the State of Delaware." Litigating those issues, he said, "would likely take years" and "would likely not only bring about the same result, but would also deny the families of victims sentencing finality." The statement indicated that state prosecutors would challenge the application of Rauf to the thirteen prisoners currently on Delaware's death row, leaving their status uncertain. For future cases, legislative action is now the only route to reinstating the death penalty in Delaware. Such action seems unlikely, given that it must be approved by both houses of the legislature and by the Governor. However, death penalty abolition bills passed the state Senate in 2013 and 2015, and narrowly failed in the House earlier this year, and Governor Jack Markell has expressed support for abolishing the death penalty and "applaud[ed] the Supreme Court's finding that the state's death penalty law is unconstitutional."

Delaware Supreme Court Declares State's Death Penalty Unconstitutional

The Delaware Supreme Court on August 2 declared the state's capital sentencing procedures unconstitutional, leaving Delaware without a valid death penalty statute. In the case of Benjamin Rauf v. State of Delaware, the court held that Delaware's death sentencing procedures violate the constitutional principles recently set forth by the U.S. Supreme Court's January 2016 decision in Hurst v. Florida. Hurst stated that a capital defendant's Sixth Amendment right to trial by jury requires "a jury, not a judge, to find each fact necessary to impose a sentence of death." Four members of the Delaware high court ruled that the state's capital sentencing statute unconstitutionally empowers judges, rather than jurors, to decide whether the prosecution has proven the existence of aggravating circumstances that are considered in determining whether to impose for the death penalty. They wrote that the jury must unanimously find those facts to have been proven beyond a reasonable doubt before a death sentence may be considered. In an opinion by Chief Justice Leo Strine, Jr., a narrower 3-justice majority of the court also ruled that the facts necessary to impose a death penalty in Delaware included a finding that aggravating circumstances outweigh mitigating circumstances (reasons to spare the defendant's life). Delaware's statute violates the Sixth Amendment, they wrote, because it does not require as a prerequisite to the death penalty that jurors unanimously agree that aggravating circumstances outweigh mitigation beyond a reasonable doubt. The court said the unconstitutional sentencing provisions were inseverable from the rest of the death penalty statute, and that any changes to the statute would have to be made by the legislature. However, recent legislative activity suggests that a bill restoring the state's ability to impose death sentences may have difficulty passing. Calling the death penalty "an instrument of imperfect justice," Governor Jack Markell has indicated that he would sign a bill to abolish capital punishment if it passed the legislature. Such a bill passed the state Senate in 2013 and 2015 and was released by the House Judiciary Committee for consideration by the full House, where it narrowly failed earlier this year. Professor Eric Freedman, a death penalty expert at the Hofstra University School of Law, said "[t]his probably means, as a practical matter, the end of the death penalty in Delaware."

Georgia Approaches Record Number of Executions But Hasn't Imposed Death Sentences in Two Years

The pace of executions in Georgia is outstripping the pace of death sentences. While the number of executions this year (5) is equal to the single-year record set in 1987 and 2015, no one has been sentenced to death in more than two years, and prosecutors are rarely seeking death sentences. The last death sentence in Georgia came down in March 2014. The number of notices of intent to seek the death penalty has fallen by more than 60% in the last decade, from 34 in 2006 to 13 in 2015. This year, the death penalty is being sought in only one case - the murder of a priest who had protested against capital punishment and signed a document stating his opposition to the death penalty, even in the event he was violently killed. Brian Kammer, head of the Georgia Resource Center, which represents death row inmates in their appeals, said improving the quality of representation has been crucial in bringing about change: “Had such legal teams with adequate resources been available to these recently executed prisoners at the time they were tried originally, I am confident they would be alive today.” Both defense attorneys and prosecutors said the option of life without parole has had a significant impact. Chuck Spahos, head of the Prosecuting Attorneys’ Council of Georgia, said, “It has made an enormous difference. When you start talking about the expense, the years of appeals and the length of the process that goes on and on and having to put victims’ families through that with no closure, the availability of life without parole with a guilty plea has become an attractive option.” Atlanta criminal defense attorney Akil Secret raised questions of fairness, asking, "If a life-without-parole sentence is sufficient for today’s worst crimes, why isn’t it sufficient for those crimes from the past where death was imposed?" 

Delaware Supreme Court Hears Oral Argument on Constitutionality of Its Death Penalty Statute

The Delaware Supreme Court heard oral argument on June 15 in Rauf v. State, a case challenging the constitutionality of the state's death sentencing statute on the grounds that it violates the Sixth Amendment right to trial by jury. The challenge arose in the wake of the U.S. Supreme Court decision in January 2016 in Hurst v. Florida, which struck down Florida's sentencing scheme, saying that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough." Delaware, Florida, and Alabama are the only states that permit a judge to make the final sentencing decision in capital cases after receiving a non-unanimous sentencing recommendation from a jury. At the time of Hurst, Florida death penalty jurors were asked to consider and weigh aggravating and mitigating circumstances without reporting which factors they found, and then make a recommendation of sentence. However, the trial judge ultimately determined whether aggravating factors existed that made the defendant eligible for the death penalty and decidede whether to impose a life sentence or the death penalty. After Hurst, the state amended its statute to require the jury to unanimously find aggravating circumstances and vote at least 10-2 for death before the judge could impose a death sentence. The Delaware Supreme Court must decide whether Delaware's system, which requires a jury to unanimously determine whether an aggravating factor exists, but allows a judge to weigh aggravating and mitigating factors, meets constitutional requirements. Santino Ceccotti, a public defender who argued on behalf of Benjamin Rauf, a defendant whose capital case is pending, said the weighing of aggravating and mitigating factors is a fact finding, and therefore should be done by a jury. "The Sixth Amendment requires not a judge, but a jury, to find each fact," he said. Deputy Attorney General Sean Lugg, who argued for the state, conceded that Delaware's weighing process was a fact finding necessary before a death sentence could be imposed, but said the jury fact finding required by Hurst was limited to determining whether the defendant was eligible for the death penalty, not what the ultimate sentence should be. A Florida trial court ruled last week that Florida's new statute violated Hurst because the determination that aggravating circumstances outweigh mitigation is a fact finding that must be made by the jury. An Alabama trial court has also ruled that its judicial sentencing statute violates Hurst. All capital trials in Delaware are on hold while the court considers the case.

Second Florida Trial Court Strikes Down State's Death Penalty Statute

A second Florida trial court has ruled that the state's new death penalty statute is unconstitutional. On June 9, Hillsborough County Judge Samantha Ward barred prosecutors from seeking death against Michael Edward Keetley, saying that the state's death penalty statute violated the Sixth Amendment to the U.S. Constitution. Judge Ward said that the Florida legislature's changes to the sentencing law after the U.S. Supreme Court had declared the old statute unconstitutional in Hurst v. Florida, created an additional set of constitutional problems. Hurst held that the Florida sentencing statute impermissibly permitted the judge, rather than the jury, to determine whether the prosecution had proven each fact necessary to impose the death penalty. In response to Hurst, the legislature passed a new law that permitted the court to impose a death sentence only if the jury unanimously found at least one aggravating circumstance that would make the defendant eligible for the death penalty and then recommended a death sentence by a vote of at least 10-2 after determining that the aggravating circumstance were sufficiently serious to justify a death sentence and outweighed any mitigating circumstances. Judge Ward said that, under the new sentencing scheme, the jury's weighing of aggravating and mitigating circumstances constituted a fact-finding necessary before a death sentence could be imposed. She wrote, "it defies logic, and the dictates of [the Sixth Amendment], to have the jury find one of the prerequisites unanimously and beyond a reasonable doubt (that at least one aggravating factor exists), but not the other two prerequisites (that sufficient aggravators exist and that they outweigh the mitigating circumstances). Hurst specifically stated '[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.'" Judge Ward is the second Florida judge to find the new statute unconstitutional: one month earlier, on May 9, Miami-Dade Circuit Judge Milton Hirsch also struck down the law, ruling that the portion of the statute permitting the court to impose the death penalty without a unanimous jury vote for death violates the state constitution.