On November 23, the Florida Supreme Court over­turned the death sen­tence imposed by a judge on Richard Franklin after his jury split 9 – 3 in rec­om­mend­ing he receive the death penal­ty for a 2012 mur­der. In light of the non-unan­i­mous jury rec­om­men­da­tion to impose a death sen­tence,” the court found that the death sen­tence vio­lat­ed Franklin’s right to have a unan­i­mous jury deter­mi­na­tion of all facts nec­es­sary to impose a death penal­ty and that the vio­la­tion could not be excused as harm­less. The court ordered that Franklin be giv­en a new sen­tenc­ing hear­ing. Although the court did not rule on any case oth­er than Franklin’s, the deci­sion sug­gests that the court will order new sen­tenc­ing hear­ings in at least sev­er­al dozen cas­es involv­ing pris­on­ers whose non-unan­i­mous death sen­tence were still pend­ing on direct appeal at the time of the U.S. Supreme Court’s rul­ing in Hurst v. Florida in January 2016. In Hurst, the U.S. Supreme Court struck down Florida’s death sen­tenc­ing scheme because key sen­tenc­ing facts were deter­mined by a judge, rather than a jury. In October, the Florida Supreme Court inter­pret­ed that deci­sion as requir­ing that the jury unan­i­mous­ly rec­om­mend the death penal­ty before the tri­al judge could impose cap­i­tal pun­ish­ment. The Florida Supreme Court’s descrip­tion of Franklin’s claim as a Ring-Hurst claim” fur­ther sug­gests that the court may order new sen­tenc­ing hear­ings for approx­i­mate­ly 170 death row pris­on­ers whose sen­tences became final since Ring v. Arizona, a 2002 U.S. Supreme Court deci­sion requir­ing that a jury, rather than a judge, deter­mine the exis­tence of aggra­vat­ing facts mak­ing a defen­dant eli­gi­ble for the death penal­ty. The court has yet to rule on whether it will apply the con­sti­tu­tion­al pro­tec­tions rec­og­nized in Hurst to all death row pris­on­ers, irre­spec­tive of their sen­tenc­ing date, which could require resen­tenc­ing of up to 290 peo­ple. Earlier, the court upheld judge-imposed death sen­tences when the defen­dant waived his right to a jury or the sen­tence fol­lowed a unan­i­mous jury rec­om­men­da­tion for death. According to retired Florida Supreme Court Chief Justice Harry Lee Anstead, Tragically, in the 13 years since Ring, some 47 per­sons have been exe­cut­ed in Florida under an uncon­sti­tu­tion­al statute. Had the U.S. Supreme Court accept­ed review of a Florida case soon after Ring, those exe­cu­tions may arguably not have occurred – at least not until fur­ther review for harm­less error, waiv­er or some oth­er pos­si­ble argu­ment by the state was first evaluated.”

(C. Geidner, Florida Supreme Court Signals Possible Upheaval For State’s Death Row,” BuzzFeed News, November 23, 2016; M. Payne, Court rul­ing could get Lords of Chaos leader off death row,” News-Press, November 28, 2016; L. Morel, Florida Supreme Court upholds death row inmate’s sen­tences in 2007 Polk County mur­ders,” Tampa Bay Times, November 10, 2016; H. Anstead, 47 peo­ple exe­cut­ed under flawed Florida statute,” Tallahassee Democrat, November 22, 2016.) Read the Florida Supreme Court’s deci­sion in Franklin v. Florida. See Sentencing and Arbitrariness.

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