Application of Florida’s New 8 – 4 Capital Sentencing Scheme ​“Moves the Goalposts” and Violates Constitutional Prohibition on Ex Post Facto Laws

Florida’s new death sen­tenc­ing law can­not apply to defen­dants who com­mit­ted their crimes before the law was passed ear­li­er this year, Florida Circuit Judge Kevin Abdoney rules. Florida law pre­vi­ous­ly required that a sen­tenc­ing jury must unan­i­mous­ly vote for death before the court could impose a death sen­tence, but in April of 2023, Gov. Ron DeSantis signed a bill into law that allows a jury to rec­om­mend a death sen­tence with as few as 8 votes. The rul­ing in Bryan Riley’s case means that the new law will not apply in his cap­i­tal tri­al because doing so would vio­late the United States Constitution’s pro­hi­bi­tion on ex post fac­to laws, or laws that retroac­tive­ly impose crim­i­nal lia­bil­i­ty or punishment.

Mr. Riley is accused of com­mit­ting a quadru­ple homi­cide in September 2021, two years before the new sen­tenc­ing law was passed. The pros­e­cu­tion argued that if Mr. Riley is found guilty of first-degree mur­der, he should be sen­tenced to death under the new rules requir­ing only 8 jury votes to impose a death sen­tence. The state argued this would not be an ex post fac­to law because death was the max­i­mum pun­ish­ment for first-degree mur­der in 2021, the same as it is in 2023, and the law change from a unan­i­mous jury to an 8 – 4 rec­om­men­da­tion was only ​“pro­ce­dur­al.”

However, Judge Abdoney explained in his rul­ing that it is not nec­es­sary for a law to increase the max­i­mum penal­ty for a crime for it to vio­late the Constitution. He cit­ed U.S. Supreme Court cas­es to sup­port his con­clu­sion that a law that retroac­tive­ly cre­ates a ​“sig­nif­i­cant risk” of a high­er pun­ish­ment can also be con­sid­ered an uncon­sti­tu­tion­al ex post fac­to law, even if the max­i­mum pun­ish­ment itself stayed the same. 

Applying that analy­sis to the case at hand, he stat­ed that “[i]t takes no empir­i­cal evi­dence, but only a rea­son­able mea­sure of prac­ti­cal wis­dom, to agree that the prospect of per­suad­ing 8 mem­bers, as com­pared to every last mem­ber, of a 12-mem­ber jury to return a death rec­om­men­da­tion is sig­nif­i­cant­ly (if not sub­stan­tial­ly) more like­ly,” and that “[i]n essence, one of the high­est hur­dles to the impo­si­tion of the death penal­ty has been low­ered sub­stan­tial­ly.” He summed up his analy­sis by explain­ing that “[i]n short, the 2023 amend­ments… have moved the goal­posts. In the same stroke of the pen, the Legislature has reduced fric­tion on the path toward death while increas­ing it on that toward life. As a result, the risk to a defen­dant con­front­ed with the pos­si­bil­i­ty of being exe­cut­ed that he will actu­al­ly meet such an end is greater now than before.”

Ultimately, he ruled that ​“under Florida’s new death penal­ty scheme, the defen­dant faces a sig­nif­i­cant­ly greater risk that he will receive the death penal­ty than under the law in effect at the time of the alleged offens­es.” Pursuant to this rul­ing, if Mr. Riley is found guilty of the alleged mur­ders, then he could only be sen­tenced to death after a unan­i­mous vote from the jury.

The prosecutor’s office has already stat­ed that it will appeal Judge Abdoney’s ruling.

This is not the first retroac­tiv­i­ty chal­lenge Florida’s new sen­tenc­ing law has faced. In June 2023, sev­er­al defen­dants who had pre­vi­ous­ly been sen­tenced to death and had been grant­ed resen­tenc­ing hear­ings pri­or to the pas­sage of the new law chal­lenged the prosecution’s attempts to resen­tence them under the 8 – 4 jury rule, rather than under the pri­or, unan­i­mous jury rule. These cas­es are pend­ing before the Florida State Supreme Court.