Amicus Briefs Submitted to Florida Supreme Court Describe Non-Unanimous Sentencing Law as a ​“Quintessential Game of Chance”

In April 2023, Florida Governor Ron DeSantis signed leg­is­la­tion that low­ered the thresh­old for juries to rec­om­mend death sen­tences from a unan­i­mous vote to a vote of 8 – 4 in favor of death, and experts allege this law has result­ed in a ​“quin­tes­sen­tial game of chance” for those await­ing cap­i­tal resen­tenc­ing or tri­al. An ami­cus brief, or friend-of-the-court brief, sub­mit­ted to the Florida Supreme Court argues that this change to the state’s death penal­ty process vio­lates cap­i­tal defen­dants’ rights under the Eighth and Fourteenth Amendments. The change allow­ing for 8 – 4 jury sen­tence deci­sion came amid a cap­i­tal resen­tenc­ing process that start­ed with the 2016 United States Supreme Court deci­sion in Hurst v. Florida, which held that Florida’s cap­i­tal sen­tenc­ing scheme was uncon­sti­tu­tion­al. This deci­sion result­ed in resen­tenc­ing hear­ings for approx­i­mate­ly 150 death row pris­on­ers in Florida.

Michael James Jackson, con­vict­ed of two 2005 Jacksonville mur­ders, was one of approx­i­mate­ly 40 indi­vid­u­als await­ing resen­tenc­ing when the new 8 – 4 law took effect in April 2023. Just a month lat­er, on May 25, 2023, a jury rec­om­mend­ed, in an 8 – 4 vote, that Mr. Jackson be resen­tenced to death. In August 2023, a judge for­mal­ly resen­tenced Mr. Jackson to death. In sup­port of Mr. Jackson, a coali­tion of both local and nation­al orga­ni­za­tions argued in an ami­cus brief that the new law has cre­at­ed ​“uncon­sti­tu­tion­al hap­haz­ard­ness.” Melanie Kalmanson, an attor­ney with Quarles & Brady LLP, wrote on behalf of the coali­tion that resen­tenc­ing hear­ings have relied on ​“an arbi­trary line-draw­ing based on the date” that sen­tenc­ing was final­ized. ​“Data on the Hurst resen­tenc­ing pro­ceed­ings show that whether a cap­i­tal defen­dant was resen­tenced under Florida’s post-Hurst una­nim­i­ty statute, or the 8 – 4 statute is the quin­tes­sen­tial game of chance,” said the brief. 

Mr. Jackson’s case is the first direct Florida Supreme Court appeal under the 2023 non-una­nim­i­ty law and an addi­tion­al ami­cus brief alleges that the 8 – 4 law vio­lates the equal pro­tec­tion rights of Black jurors. Five Black state rep­re­sen­ta­tives, a for­mer state sen­a­tor, the NAACP Florida State Conference and Equal Ground Education Fund Inc., filed a sep­a­rate brief alleg­ing that the law ​“dis­pro­por­tion­ate­ly excludes Black jurors’ votes in cap­i­tal sen­tenc­ing,” wrote Christopher Belelieu, an attor­ney with Gibson, Dunn & Crutcher. ​“Like sys­temic state sys­tems of exclu­sion and racial­ly taint­ed peremp­to­ry strikes, non-unan­i­mous juries oper­ate to exclude the voic­es of Black jurors, there­by depriv­ing jurors of the equal pro­tec­tion of the laws guar­an­teed by the Fourteenth Amendment,” said the brief.

As of March 31, just 17% of resen­tenc­ing pro­ceed­ings result­ed in unan­i­mous death sen­tences. Ms. Kalmanson wrote that the Florida Supreme Court needs to ​“rec­ti­fy the uncon­sti­tu­tion­al arbi­trari­ness cre­at­ed by this new sub­set of cas­es.” The brief ulti­mate­ly asks the Court to ​“lev­el the play­ing field for those pris­on­ers who were grant­ed a new penal­ty phase after Hurst.” Maria DeLiberato, the Executive Director of Floridians for Alternatives to the Death Penalty told The News Service of Florida that Mr. Jackson’s case high­lights the ​“sheer arbi­trari­ness of Florida’s death penal­ty.” Ms. DeLiberato also said that ​“the Legislature’s 2023 law change, elim­i­nat­ing una­nim­i­ty, has thrust Florida’s death penal­ty scheme into chaos. Mr. Jackson has a strong claim that his death sen­tence is not the prod­uct of law­ful, con­sti­tu­tion­al ver­dict, but instead is whol­ly arbi­trary and unreliable.”