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.