More than 200 Florida death row pris­on­ers may have their death sen­tences over­turned, while more than 150 oth­ers who may have been uncon­sti­tu­tion­al­ly sen­tenced to death will not, as a result of two lengthy opin­ions issued by the Florida Supreme Court on December 22. The rul­ings in the cas­es of Asay v. State and Mosley v. State would enti­tle death row pris­on­ers whose uncon­sti­tu­tion­al death sen­tences became ​“final” in or after 2002 to have their death sen­tences vacat­ed in light of the deci­sions of the U.S. and Florida Supreme Courts in Hurst v. Florida and Hurst v. State ear­li­er in 2016, but would deny that relief to death row pris­on­ers whose sen­tences had the same con­sti­tu­tion­al infir­mi­ty but had become final pri­or to 2002. In the case of Mark James Asay, the court rec­og­nized that Asay had been con­demned under sen­tenc­ing pro­ce­dures that both it and the U.S. Supreme Court had found to be uncon­sti­tu­tion­al. It nev­er­the­less held that he was not enti­tled to resen­tenc­ing because he had com­plet­ed the direct appeal process before the U.S. Supreme Court issued a deci­sion in Ring v. Arizona requir­ing that ​“a jury, not a judge, [must] find each fact nec­es­sary to impose a sen­tence of death.” Even after the Ring deci­sion, Florida courts con­tin­ued to allow judges to find the facts nec­es­sary to sen­tence defen­dants to death; a jury would only rec­om­mend a sen­tence. In Asay’s case, a jury rec­om­mend­ed death by a 9 – 3 vote. Because his sen­tence was imposed in 1991 and became final before Ring, Asay was denied relief and the court lift­ed his stay of exe­cu­tion. In a sec­ond case, the Florida Supreme Court grant­ed a new sen­tenc­ing hear­ing to John Franklin Mosley—who was sen­tenced to death when the tri­al judge over­rode the jury’s 8 – 4 rec­om­men­da­tion of a life sen­tence — because he was sen­tenced to death after Ring. In so hold­ing, the court explained that ​“defen­dants who were sen­tenced to death based on a statute that was actu­al­ly ren­dered uncon­sti­tu­tion­al by Ring should not be penal­ized for the United States Supreme Court’s delay in explic­it­ly mak­ing this deter­mi­na­tion.” The court lim­it­ed its hold­ing, how­ev­er, only to those cas­es in which the con­sti­tu­tion­al vio­la­tion was harm­less. In order to be harm­less, the court said ​“it must be clear beyond a rea­son­able doubt that a ratio­nal jury would have unan­i­mous­ly found all facts nec­es­sary to impose death and that death was the appropriate sentence.” 

Justice Pariente dis­sent­ed from the court’s opin­ion in Asay, saing she would have afford­ed the con­sti­tu­tion­al pro­tec­tions announced in Hurst to all pris­on­ers fac­ing a death sen­tence. She explained that “[a]pplying deci­sions of fun­da­men­tal con­sti­tu­tion­al sig­nif­i­cance retroac­tive­ly to defen­dants in sim­i­lar cir­cum­stances is essen­tial to ​‘ensur­ing fair­ness and uni­for­mi­ty in indi­vid­ual adju­di­ca­tions’ ” and to pre­vent arbi­trary admin­is­tra­tion of cap­i­tal pun­ish­ment. Justice Perry also dis­sent­ed, writ­ing that the major­i­ty deci­sion ​“cre­ates an arbi­trary appli­ca­tion of law to two groups of sim­i­lar­ly sit­u­at­ed per­sons.” In doing so, he also ques­tioned the con­sti­tu­tion­al­i­ty of the death penal­ty as a whole, stat­ing: ​“I no longer believe that there is a method of which the State can avail itself to impose the death penal­ty in a constitutional manner.” 

(M. Auslen and K. Clark, ​“Death penal­ty cas­es final­ized before 2002 will stand,” Miami Herald, December 22, 2016; R. Stutzman and G. Tziperman Lotan, ​“Florida Supreme Court: More than 200 death row inmates were giv­en uncon­sti­tu­tion­al death sen­tences,” Orlando Sentinel, December 22, 2016.) Read the opin­ion in Asay v. State; read the opin­ion in Mosley v. State.

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