Sentencing

Florida Legislature Passes Bill Eliminating Non-Unanimous Jury Recommendations for Death Penalty

A Florida bill that would require the jury to make a unanimous recommendation for death before a judge may impose a death sentence will head to Governor Rick Scott for final approval, after both houses of the Florida legislature passed it by overwhelming margins. Senate Bill 280 passed unanimously (37-0) on March 9, and the corresponding House Bill 527 passed by a 112-3 vote on March 10. If signed by the governor, the bill will bring Florida into compliance with the Florida Supreme Court's rulings in Hurst v. State and Perry v. State in 2016. Hurst struck down Florida's prior capital sentencing statute, which had allowed judges to impose the death penalty if a majority of jurors recommended death or to override a jury's recommendation of life. Perry struck down an amended version of the statute, which had permitted judges to impose a death sentence if 10 or more jurors recommended death. The Florida Supreme Court also ruled that the unanimity requirement would apply to death-row prisoners whose direct appeals had been decided after the United States Supreme Court's June 2002 decision in Ring v. Arizona, which held that capital defendants had a right to a jury determination of all facts necessary to impose the death penalty. That decision is expected to overturn approximately 200 death sentences, while permitting a similar number of prisoners whose direct appeals had already been completed to be executed despite constitutional violations in their cases. Until recently, three states—Florida, Alabama, and Delaware—permitted judges to impose death sentences on the basis of non-unanimous jury recommendations for death. Non-unanimous cases accounted for more than 20% of all death sentences in the U.S. from 2010-2015 and disproportionately contributed to death-row exonerations. In 2016, the Delaware Supreme Court struck down its state's death penalty statute, holding that death sentences based upon non-unanimous jury recommendations for death were unconstitutional. The change to Florida's law would leave Alabama as the only remaining state in which a judge may impose a death sentence based upon a non-unanimous jury recommendation. 

Jury in Wake County, North Carolina Returns 7th Consecutive Life Verdict in a Capital Trial

A Wake County, North Carolina jury voted to spare Nathan Holden's life on March 3, marking the seventh consecutive capital sentencing trial in the county in which juries had opted to sentence a defendant to life without parole instead of the death penalty. No jury in Wake County has imposed a death sentence since 2007. Prosecutors had sought the death penalty against Holden for murdering his ex-wife's parents and attempting to kill her. The jury convicted Holden of two counts of first-degree murder but, after being presented evidence of 39 mitigating circumstances—including that he suffered from Posttraumatic Stress Disorder as a result of chronic childhood abuse—jurors chose to sentence him to life. Although the ten Wake County prisoners on North Carolina's death row placed the county among the 2% of counties that accounted for 56% of all prisoners on U.S. death rows as of 2013, Wake District Attorney Lorrin Freeman said after jurors returned the sixth consecutive life sentence in February 2016 that it might be time to rethink whether to pursue the death penalty in future cases. Wake County's experience has been typical of North Carolina, and the nation as a whole. The state has averaged fewer than two death sentences per year since 2011, with no new death sentences in 2012 and 2015. In 2016, only one of the five capital trials in the state resulted in a death sentence. By contrast, the state sent between 20 to 30 people per year to death row in the 1990s. The United States has seen a similar drop in death sentences, imposing a total of only 30 new death sentences last year, down from a peak of 315 in 1996 (see graph, click to enlarge). North Carolina's last execution was in 2006.

Florida Supreme Court Allows Death Penalty Prosecutions to Proceed

In a retreat from one of its prior decisions, the Florida Supreme Court ruled on February 20 that prosecutors could move forward with death penalty trials under Florida's constitutionally flawed capital sentencing statute, provided the trial court specifically instructs the sentencing jurors that they must unanimously find all facts that could make a defendant eligible for the death penalty and that they must unanimously recommend death before the trial judge may impose a death sentence. In January 2016, the U.S. Supreme Court struck down Florida's death penalty law in Hurst v. Florida because the trial judge, rather than the jury, was responsible for finding critical facts necessary to impose a death sentence. In response to that decision, the Florida legislature amended the state's capital sentencing statute to require juries to unanimously find at least one aggravating circumstance, but allowed the trial judge to impose a death sentence if at least 10 of 12 jurors recommended death. In October 2016, the Florida Supreme Court ruled in Perry v. State that this new sentencing statute violated the state and federal constitutions because it unconstitutionally permitted the judge to impose death despite a nonunanimous sentencing recommendation by the jury. At that time, the court declared that the sentencing law "cannot be applied to pending prosecutions." The latest ruling, in the cases of Patrick Albert Evans v. State of Florida and Juan Rosario v. State of Florida, reverses that decision. Legislators have proposed bills to revise the law and bring it in line with the court's October ruling. The latest decision allows death penalty cases to proceed even before such legislation is passed, but courts will only be allowed to impose a death sentence if the jury first unanimously agrees that it is the appropriate sentence. 

Capital Sentencing Reform Bills Advance in Florida, Alabama

Legislative committees in Florida and Alabama have voted to advance bills that would reform capital sentencing procedures in those states that have been the subject of extensive constitutional challenges. In Florida, the Senate Criminal Justice Committee by a vote of 6-0 approved a bill that would require a jury to unanimously recommend a death sentence before the trial judge could sentence a defendant to death. The bill would bring Florida's sentencing procedure in line with a Florida Supreme Court ruling that had declared unconstitutional death sentences that were imposed after one or more jurors had recommended a life sentence. In Alabama, the Senate Judiciary Committee approved a bill to end Alabama's practice of judicial override. Alabama is currently the only state that allows judges to override a jury's recommendation of a life sentence and impose a death sentence. Senator Dick Brewbaker (R - Montgomery), who sponsored the bill, raised concerns about political pressure on elected judges. A majority of overrides in the last 10 years happened in election years. “I’m not saying anyone has any evil intent,” Brewbaker said. “I’m not arguing about constitutionality, but there’s no way to take politics out of politics. It’s like taking the wet out of the water. It can’t be done.” According to research by the Equal Justice Initiative, judges have used their override power to impose death sentences over jury recommendations for life 101 times, but overrode jury recommendations for death and imposed life sentences just 11 times. The U.S. Supreme Court has remanded four death penalty cases to Alabama's courts for a determination of the constitutionality of the state's sentencing practices—including judicial override. The Alabama courts have upheld the practice, and in December 2016, Alabama executed Ronald Smith despite a 7-5 jury recommendation that he be sentenced to life.

STUDIES: At Least 201 Florida Death Row Prisoners May Be Eligible for Resentencing, 134 Had Non-Unanimous Juries

A new study reports that at least 201 Florida death row prisoners—including at least 134 whom judges sentenced to death after juries had returned non-unanimous sentencing recommendations—may be eligible for resentencing hearings as a result of recent rulings by the United States and Florida Supreme Courts declaring the state's death sentencing practices unconstitutional. In 2016, the U.S. Supreme Court struck down Florida's statute in Hurst v. Florida, ruling that it unconstitutionally denied defendants the right to have juries decide whether the prosecution had proven key facts necessary to impose the death penalty. Later in the year, in Hurst v. State, the Florida Supreme Court also struck down the statute for permitting judges to impose death sentences without a unanimous jury recommendation for death. In a pair of rulings issued in December 2016, Asay v. State and Mosley v. State, the court applied that decision to any defendant whose death sentence was finalized after the U.S. Supreme Court ruling Ring v. Arizona, in 2002. The authors of the study, Michael Radelet (pictured), a sociology professor at the University of Colorado-Boulder, and G. Ben Cohen, a capital litigator in New Orleans, Louisiana, caution that the 134 non-unanimous post-Ring death verdicts that they have identified "are not the only cases that may require resentencing, as defendants may have different claims arising from other constitutional deficiencies in the Florida statutes." Their study shows that ten counties account for nearly 60% of Florida's death row, more than 60% of those sentenced to death since Ring, and 62% of the known non-unanimous verdicts and will most heavily bear the cost of resentencing these defendants. The counties with the largest numbers of affected prisoners are also among the 2% of U.S. counties responsible for a majority of people on death row nationwide. Duval County has 31 defendants who may be eligible for resentencing, of whom at least 26 had a non-unanimous jury. The same is true of 11 of 12 affected defendants from Miami-Dade County, 8 of 12 from Broward County, and 7 of 11 from Seminole County. The authors point out that the constitutional failures of Florida's statute have been evident for many years, and that earlier acknowledgement of these problems could have saved the state from the costly resentencing hearings it now faces: "The significant cost of resentencing all of these individuals under a constitutional scheme was very predictable at the time of Ring in 2002, and was also foreseen by at least some experts who examined the post-Furman statute that was enacted in 1972." They conclude that "In 2017, the Florida legislature will need to make changes in the Florida death penalty statute that were predictable when the statute was first passed in 1972, and inevitable when the U.S. Supreme Court released Ring v. Arizona in 2002. Finally, they will need to acknowledge that Ring has rung."

DPIC Releases Year End Report: Historic Declines in Death Penalty Use Continue

Death sentences, executions, and public support for the death penalty continued their historic declines in 2016, according to DPIC's annual report, "The Death Penalty in 2016: Year End Report," released on December 21. The 30 death sentences imposed this year are the fewest in the modern era of capital punishment in the U.S.—since the Supreme Court declared all existing death penalty statutes unconstitutional in 1972—and declined 39% from 2015's already 40-year low. Just 20 people were executed in 2016, the fewest executions since 1991. Both death sentences and executions were increasingly geographically isolated. Two states—Georgia and Texas—accounted for 80% of executions, and more than half of all death sentences were imposed in just three states—California, Ohio, and Texas. Election results reflected America's deep divisions about the death penalty, as voters in three states decided to retain the death penalty or add it to the state constitution, while voters in five of the highest-use death penalty counties replaced prosecutors who strongly supported the death penalty with candidates who promised reform and reductions in capital prosecutions. Courts struck down practices in Arizona, Delaware, Florida, and Oklahoma that had contributed to disproportionately high numbers of death sentences. “America is in the midst of a major climate change concerning capital punishment. While there may be fits and starts and occasional steps backward, the long-term trend remains clear,” said Robert Dunham, DPIC’s Executive Director and the author of the report. “Whether it’s concerns about innocence, costs, and discrimination, availability of life without parole as a safe alternative, or the questionable way in which states are attempting to carry out executions, the public grows increasingly uncomfortable with the death penalty each year.” See DPIC's Press Release. Watch a short video summary of the report. (Click image to enlarge.)

Directed to Reconsider its Death Penalty Statute, Alabama Appeals Court Upholds Constitutionality of 3 Death Sentences

Directed by the U.S. Supreme Court to reconsider its rulings upholding the death sentences imposed upon four Alabama defendants, the Alabama Court of Criminal Appeals affirmed three of the death sentences on December 16.  The state court ruled that the death sentences imposed upon Ronnie Kirksey, Corey Wimbley, and Ryan Gerald Russell do not violate the Supreme Court's January 16, 2016 decision in Hurst v. Florida. It has not yet ruled on the constitutionality of the death sentence imposed on Bart Johnson in the fourth case. In Hurst, the Supreme Court ruled 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.” In that case, the Court struck down Florida's capital sentencing law, ruling that it unconstitutionally reserved for the judge, rather than the jury, the ultimate power to decide whether the prosecution had proven the existence of aggravating circumstances that would make the defendant eligible for the death penalty. In late January, three Justices noted in connection with a decision denying a stay of execution to Alabama death-row prisoner Christopher Brooks that Hurst had overruled the decisions upon which the Court had relied in previously upholding Alabama's judge-sentencing statute. The Court later vacated the Alabama court's decisions upholding the four death sentences, sending them back to the Alabama courts for reconsideration in light of the Hurst decision. In August and October, the Delaware and Florida Supreme Courts ruled that other portions of their statutes that permitted judges to override jury recommendations of a life sentence or impose death sentences after a non-unanimous jury sentencing recommendation violated Hurst, leaving Alabama as the only state that continues to allow either practice. In issuing its opinions, the Alabama Court of Criminal Appeals distinguished its law from the Florida statute the Supreme Court declared unconstitutional in Hurst, saying that as part of the decision finding a defendant guilty of capital murder, Alabama juries already unanimously find facts that prove a penalty-phase aggravating circumstance and make the defendant eligible for the death penalty. Without addressing the rulings of the Delaware and Florida state courts, the court of appeals upheld Alabama's provisions allowing non-unanimous juries to recommend a death sentence and permitting judges to override a jury's recommendation of a life sentence. The state court said that the weighing of aggravating and mitigating circumstances is not a finding of fact, so Hurst does not apply to the jury's sentencing recommendation or the sentence ultimately imposed by the judge. It also noted that in Kirksey's and Russell's cases, the sentencing juries had unanimously recommended death.

Delaware Supreme Court Decision Paves Way to Clear State's Death Row

On December 15, the Delaware Supreme Court ruled in Powell v. State that death-row prisoner Derrick Powell will get the benefit of its August 2016 decision in Rauf v. State declaring Delaware's death sentencing statute unconstitutional. The court directed that Powell be resentenced to life without parole, in a ruling that also paves the way for resentencing Delaware's twelve other death row prisoners to life. The court's holding is based upon a legal principle called retroactivity. When the court decided Rauf, it determined that Delaware's capital sentencing statute violated due process and the Sixth Amendment in part because it did not require that the jury find unanimously and beyond a reasonable doubt all facts legally necessary to impose a death sentence. Applying Delaware law, the court held that Rauf was a type of legal ruling that should apply to all capital cases in which juries did not make such a finding because Rauf had announced a "new watershed procedural rule for capital proceedings that contributed to the reliability of the fact-finding process." The court explained that, prior to Rauf, Delaware capital defendants had been sentenced to death using a "preponderance of the evidence standard" in which the death penalty could be imposed if the prosecution proved that aggravating circumstances justifying the death penalty even slightly outweighed mitigating factors that could justify sparing the defendant's life. That burden of proof, the court said, was materially lower than if juries were required rule out the death penalty if any juror had reasonable doubt as to whether the aggravating evidence outweighed mitigation. In Powell's case, his jury, applying the lesser preponderance-of-the-evidence standard, voted 7-to-5 that aggravating factors outweighed mitigating factors and recommended a death sentence. Under the court's ruling, Powell's death sentence was automatically converted to a sentence of life without the possiblity of "probation or parole or any other reduction."  The Delaware Attorney General's office did not appeal the court's ruling in Rauf, which was based solely on the federal constitution, to the U.S. Supreme Court. Because the Powell retroactivity decision is based on Delaware state law, it does not raise federal constitutional questions and would not be subject to review by the federal courts.

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