The num­ber of pris­on­ers on Florida’s death row is now low­er than it was on June 30, 2005, as the pace of death sen­tenc­ing slows and courts reverse the uncon­sti­tu­tion­al non-unan­i­mous death sen­tences by which numer­ous cap­i­tal defen­dants had been con­demned. Applying the U.S. Supreme Court’s 2014 rul­ing in Hurst v. Florida and sub­se­quent Florida Supreme Court deci­sions in Hurst v. State and Perry v. State, state courts declared uncon­sti­tu­tion­al Florida’s prac­tice of per­mit­ting tri­al judges to impose death sen­tences after sen­tenc­ing juries had not reached a unan­i­mous agree­ment that death was the appro­pri­ate pun­ish­ment. As a result, death sen­tences have been vacat­ed in near­ly 100 cas­es, and addi­tion­al cas­es are work­ing their way through Florida’s court sys­tem. So far this year, 15 peo­ple have been removed from Florida’s death row, and a 16th died after hav­ing his death sen­tence vacat­ed under Hurst, while being trans­fered to a court hear­ing. The declin­ing pop­u­la­tion on death row is not being replaced with new death sen­tences; the state’s last death sen­tence was hand­ed down in June 2016 and more than 3/​4ths of death sen­tences imposed in the pre­vi­ous five years had involved non-unan­i­mous jury votes for death. As a result, the num­ber of pris­on­ers housed on Florida’s death row has fall­en from 383 at the begin­ning of 2017, to 367 — slight­ly low­er than the 369 peo­ple who were on death row in 2005. Even more pris­on­ers are expect­ed to be removed from death row, as many of those whose death sen­tences have been inval­i­dat­ed are resen­tenced to life. (The Department of Corrections death-row ros­ter only removes a pris­on­er from its list if the pris­on­er dies, receives clemen­cy, is exon­er­at­ed, or is resen­tenced to some­thing oth­er than death.) A DPIC review of Florida cap­i­tal cas­es indi­cates that, through July 13, Florida courts have issued deci­sions involv­ing Hurst in at least 119 cas­es. Those deci­sions have result­ed in the vaca­tion of 99 death sen­tences. To date, the coun­ties most affect­ed by the Hurst rul­ings have been: Duval (15 sen­tences); Orange (9 sen­tences); and Broward (9 sen­tences). In Duval County, 14 of the 15 death sen­tences reviewed (93.33%) have been vacat­ed; in Orange County, all 9 death sen­tences reviewed have been vacat­ed; and in Broward coun­ty, 7 of the 9 death sen­tences reviewed (77.78%) have been vacat­ed. DPIC, in con­junc­tion with researcher and pro­fes­sor Michael Radelet, has also iden­ti­fied at least 149 pris­on­ers who are expect­ed to obtain relief under the Florida court’s cur­rent inter­pre­ta­tion of Hurst, and is track­ing what hap­pens to those cas­es on resen­tenc­ing. Former Florida Supreme Court Chief Justice Gerald Kogan said the resen­tenc­ing hear­ings will present dif­fi­cul­ties for the state’s legal sys­tem: ​“That’s not an easy thing to go back and dig up all of this evi­dence and espe­cial­ly to dig up all the wit­ness­es,” for a new sen­tenc­ing hear­ing. ​“We have been very, very neg­li­gent in the state of Florida in han­dling these types of cas­es,” he said.

The denial of a new sen­tenc­ing hear­ing does not mean that a death-row pris­on­er was con­sti­tu­tion­al­ly sen­tenced to death. The Florida Supreme Court ruled in the case of Mark Asay that it would not apply its rul­ing in Hurst to cas­es that had com­plet­ed the direct appeal process pri­or to June 2002. Asay, who did not have a unan­i­mous jury rec­om­men­da­tion for death, faces an August 24 execution date.

(S. Bousquet, ​“Florida’s death row pop­u­la­tion low­er today than it was in 2005,” Tampa Bay Times, June 29, 2017; J. Lucas, ​“Former Florida Chief Justice says Death Penalty Process faces Chaos,” The Capitolist, June 27, 2017.) See Sentencing; see DPIC Hurst v. Florida Background.

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