Florida Supreme Court Retracts Jury Unanimity Requirement, Reinstates Non-Unanimous Death Sentence

In a dra­mat­ic rever­sal made pos­si­ble by changes in court per­son­nel, the Florida Supreme Court has repu­di­at­ed its pri­or deci­sions requir­ing that cap­i­tal sen­tenc­ing juries unan­i­mous­ly agree to the death penal­ty before a tri­al judge may sen­tence a defen­dant to death. ​“Our court … got it wrong,” the jus­tices said, when it ruled in 2016 that death sen­tences imposed after non-unan­i­mous jury rec­om­men­da­tions for death vio­lat­ed the state and federal constitutions.

The court’s January 23, 2020 deci­sion in State v. Poole rein­stat­ed a death sen­tence imposed on Mark Anthony Poole in 2011 after a non-unan­i­mous jury had vot­ed 11 – 1 to rec­om­mend the death penal­ty. Applying the court’s 2016 rul­ing in Hurst v. State, a Polk County tri­al court had over­turned his death sen­tence and ordered a new sentencing hearing.

In its unsigned opin­ion, the court major­i­ty said that the Hurst deci­sion had mis­un­der­stood the U.S. Supreme Court’s case deci­sions that had grant­ed cap­i­tal defen­dants the right to have a jury decide all facts nec­es­sary to impose a death sen­tence. The Poole court dis­tin­guished between aggra­vat­ing cir­cum­stances — facts that make a defen­dant ​“eli­gi­ble” to be sen­tenced to death — which must be found by the jury, and the ​“selec­tion” of the ulti­mate sen­tence after the weigh­ing of aggra­vat­ing and mit­i­gat­ing cir­cum­stances. The lat­ter, the court said, involved judg­ments of mer­cy that could not be con­sid­ered a fac­tu­al deter­mi­na­tion and did not require a unan­i­mous jury vote. 

Poole’s appeal lawyer, Julius Chen, called the court’s retroac­tive appli­ca­tion of the change in the law ​“noth­ing short of aston­ish­ing” and said the defense was ​“care­ful­ly explor­ing avenues for fur­ther review” of the case. The rul­ing could rein­state the death sen­tences of dozens of Florida pris­on­ers who, under the pri­or court deci­sions, were enti­tled to new sen­tenc­ing hear­ings. Most of the resen­tenc­ings that have already tak­en place have result­ed in life sentences.

Justice Jorge Labarga issued a strong dis­sent, writ­ing that the court ​“has tak­en a giant step back­ward and removed a sig­nif­i­cant safe­guard for the just appli­ca­tion of the death penal­ty in Florida.” ​“The major­i­ty,” he said, ​“returns Florida to its sta­tus as an absolute out­lier among the juris­dic­tions in this coun­try that uti­lize the death penal­ty. The major­i­ty gives the green light to return to a prac­tice that is not only incon­sis­tent with laws of all but one of the 29 states that retain the death penal­ty, but incon­sis­tent with the law gov­ern­ing the fed­er­al death penalty.”

The court’s com­po­si­tion changed dras­ti­cal­ly in 2019 when three lib­er­al and mod­er­ate jus­tices reached manda­to­ry retire­ment age and were replaced with con­ser­v­a­tive jurists. While the rul­ing in Poole does not direct­ly affect the state’s cur­rent death sen­tenc­ing statute, which was amend­ed in 2017 to require jury una­nim­i­ty, the opin­ion sig­naled the leg­is­la­ture that the new con­ser­v­a­tive major­i­ty would uphold leg­isla­tive changes return­ing to the pri­or prac­tice of per­mit­ting judges to over­ride life rec­om­men­da­tions or impose death in cas­es of non-unan­i­mous jury votes.

Shalini Goel Agarwal, man­ag­ing attor­ney for the Southern Poverty Law Center, sharply crit­i­cized the court’s deci­sion. In a state­ment post­ed on the organization’s web­site, Agarwal said the court had ​“retreat­ed on the crit­i­cal require­ment that only a unan­i­mous jury can impose the death penal­ty …. Given the abun­dant evi­dence of wrong­ful con­vic­tions and racial dis­par­i­ties in death sen­tences, requir­ing a unan­i­mous jury is fun­da­men­tal to ensure fair­ness when exact­ing the ulti­mate penal­ty. There is no do-over after an exe­cu­tion. That is why una­nim­i­ty must be the rule.”

Exoneration data sug­gests that states with cap­i­tal sen­tenc­ing statutes that per­mit judges to impose death sen­tences by over­rid­ing jury rec­om­men­da­tions for life or after juries have returned non-unan­i­mous rec­om­men­da­tions for death may increase the risk of wrong­ful exe­cu­tions. More pris­on­ers have been exon­er­at­ed from Florida’s death row than in any oth­er state. In 21 of the 23 exon­er­a­tion cas­es in which the jury vote is known — more than 90% — some or all of the jurors had vot­ed for life.