Florida’s New Non-Unanimous Capital Sentencing Law Faces Retroactivity Challenge in State Supreme Court

The resentencing hearings of several death-sentenced men in Florida came to an abrupt halt last week as the Florida Supreme Court considers the effect of the state’s new capital sentencing law.  Earlier this year, the Florida legislature passed a new capital sentencing law to allow juries to impose a death sentence if at least 8 out of 12 jurors vote in favor.  But several death row defendants who were scheduled to be resentenced objected that the new law unfairly made their chances of being sentenced to death more likely. The Florida Supreme Court will now determine whether the old law, requiring a unanimous death sentence, or the new law, requiring only 8 jurors in favor, will apply when they are resentenced. 

The practical effect of this ruling will very likely mean the difference between life and death. After the US Supreme Court’s decision in Hurst v. Florida,147 death row prisoners obtained Hurst relief, meaning that because their original sentencing juries were non-unanimous, they were entitled to new sentencing hearings. At the time, that meant that prisoners could be resentenced to death only if the jury vote was unanimously in favor. After Florida’s new law passed, however, the state argued that these prisoners could now be sentenced to death by non-unanimous juries. 

Florida Association of Criminal Defense Lawyers vice president Tania Alavi stated that any application of the new law “diminishes the jury’s responsibility and eviscerates any reliability,” characterizing it as a “huge step backwards and [making Florida] a huge outlier” among other states. 

Florida’s legal history regarding capital juries is complicated; up until 2016, the state law allowed for jury recommendations of death if at least 10 out of 12 jurors voted in favor. After Hurst v. Florida, the Florida Supreme Court held that a unanimous jury must recommend death before a judge could consider imposing a death sentence.  In 2020, however, in State v. Poole, the Florida Supreme Court, which had recently undergone a change in composition after several judges reached the mandatory retirement age, repudiated its earlier opinion and issued a new interpretation of the law, stating that while a unanimous jury must find the existence of an aggravating factor in a capital case (which are the factors that make a first degree murder charge eligible for the death penalty), there was no requirement that the jury’s recommendation for death must be unanimous. This opened the door to the current law, which allows an 8–4 split in favor of death.

At least three death row defendants with pending resentencing hearings have raised challenges to the new law.  Leonard Gonzalez, whose resentencing hearing was scheduled to begin just three weeks after the new law passed, argued that applying the new law to his case would be fundamentally unfair, as his attorneys noted in their brief that “[a]ll preparations for the new penalty phase proceeding were undertaken based upon the verdict standard of unanimous jury.” Mr. Gonzalez was sentenced to death by a 10–2 jury vote in 2011. Two other defendants—Jason Looney and Guerry Hertz—were sentenced to death in 2000, also by 10–2 jury votes. Mr. Ward, their attorney, argued that applying the new law to their hearings would mean they would be “flying blind” since the Florida Supreme Court hadn’t even promulgated jury instructions yet.