Marking a Decade Since Hurst v. Florida

A Joint Project Between the Death Penalty Information Center (DPI) and Tracking Florida’s Death Penalty (TFDP)

This post is also avail­able on TFDP here.

Key Points

• Ten years after Hurst result­ed in the death sen­tences of 145 Florida cap­i­tal pris­on­ers being vacat­ed, 125 (86%) cas­es have been resolved (119 pris­on­ers resen­tenced, 6 died).
• Hurst resen­tenc­ings have over­whelm­ing­ly end­ed in life sen­tences. Four out of every five pris­on­ers (78%) once sen­tenced to death were deemed by juries or pros­e­cu­tors to mer­it a sen­tence oth­er than death.
• After Florida low­ered its cap­i­tal sen­tenc­ing stan­dard in 2023 from 12 unan­i­mous votes to just eight votes, the rate of death sen­tences in Hurst resen­tenc­ings almost dou­bled (17% to 33%).
• Despite the low­ered stan­dard, jurors remain reluc­tant to impose death. Two-thirds of Hurst pro­ceed­ings since the new law took effect have end­ed in life sen­tences. In Hurst resen­tenc­ings under the 8 – 4 stan­dard, juries have imposed life sen­tences in at least 12 cas­es and unan­i­mous­ly imposed only one death sentence. 

Introduction

Today is the ten-year anniver­sary of the U.S. Supreme Court’s deci­sion in Hurst v. Florida. Heralded as a water­shed rul­ing for cap­i­tal defen­dants, Hurst reaf­firmed the prin­ci­ple that the jury alone must find the facts nec­es­sary to con­demn a per­son to die — impli­cat­ing the death sen­tences of hun­dreds of pris­on­ers across three states. The Sixth Amendment right to an impar­tial jury is one of a suite of con­sti­tu­tion­al guar­an­tees meant to ensure fair­ness and con­sis­ten­cy in the crim­i­nal legal system. 

“The jury’s role in sen­tenc­ing — par­tic­u­lar­ly in cap­i­tal cas­es — is cen­tral,” the New York Times Editorial Board wrote approv­ing­ly on the day of the rul­ing. The Court had cor­rect­ly struck down a law that ​“treat­ed the Constitution as lit­tle more than a speed bump on the road to quick­er and eas­i­er death sentences.”

Yet imple­ment­ing Hurst in its state of ori­gin, Florida, has been eas­i­er said than done. Hurst eli­gi­bil­i­ty and resen­tenc­ing out­comes have been the sub­ject of ongo­ing lit­i­ga­tion for the past decade, impact­ed by incon­sis­tent state court rul­ings, new leg­is­la­tion, and even hur­ri­canes. Several cas­es still have not been pre­sent­ed to a jury for resen­tenc­ing. Today, these fac­tors have giv­en rise to seri­ous con­cerns that the con­sti­tu­tion­al promise of Hurst has not been realized.

Legal Background: Hurst v. Florida

In Hurst v. Florida, the Supreme Court held that Florida’s long-stand­ing cap­i­tal sen­tenc­ing scheme vio­lat­ed cap­i­tal defen­dants’ right to jury tri­al under the Sixth Amendment to the U.S. Constitution. The issue had been pend­ing for 14 years, since the Supreme Court held in Ring v. Arizona (2002) that ​“the jury, not the judge, must find the fac­tors that war­rant impo­si­tion of capital punishment.” 

Florida’s pre-Hurst cap­i­tal sen­tenc­ing scheme required the jury to only make a final rec­om­men­da­tion of death by a vote of 7 – 5 or more. It per­mit­ted the judge to find the aggra­vat­ing fac­tors required for a death sen­tence. In Hurst, the Court struck the statute, hold­ing: ​“The Sixth Amendment requires a jury, not a judge, to find each fact nec­es­sary to impose a sen­tence of death. A jury’s mere rec­om­men­da­tion is not enough.”

When Hurst was decid­ed, only three states allowed death sen­tences to be imposed fol­low­ing a jury’s nonunan­i­mous rec­om­men­da­tion for death: Alabama, Delaware, and Florida. For pris­on­ers in those states, how the state respond­ed to Hurst would mean the dif­fer­ence between life and death. In August 2016, Delaware com­mut­ed each death row prisoner’s sen­tence to life, imposed a unan­i­mous sen­tenc­ing require­ment, and even­tu­al­ly abol­ished the death penal­ty. In September 2016, the Alabama Supreme Court held in Bohannon v. State that Alabama’s cap­i­tal sen­tenc­ing scheme passed con­sti­tu­tion­al muster even after Hurst because ​“a jury, not the judge, deter­mines by a unan­i­mous ver­dict the crit­i­cal find­ing that an aggra­vat­ing cir­cum­stance exists beyond a rea­son­able doubt to make a defen­dant death-eli­gi­ble.” Alabama retained its nonunan­i­mous sen­tenc­ing require­ment for death by a vote of at least 10 jurors.

In October 2016, the Florida Supreme Court held in Hurst v. State that ​“all the crit­i­cal find­ings nec­es­sary before the tri­al court may con­sid­er impos­ing a sen­tence of death must be found unan­i­mous­ly by the jury.” Under the state’s cap­i­tal sen­tenc­ing scheme, the Florida court explained, such find­ings includ­ed ​“the exis­tence of each aggra­vat­ing fac­tor that has been proven beyond a rea­son­able doubt, the find­ing that the aggra­vat­ing fac­tors are suf­fi­cient, and the find­ing that the aggra­vat­ing fac­tors out­weigh the mit­i­gat­ing cir­cum­stances.” The court fur­ther held, ​“based on Florida’s require­ment for una­nim­i­ty in jury ver­dicts, and under the Eighth Amendment to the United States Constitution, that in order for the tri­al court to impose a sen­tence of death,” the jury’s final rec­om­men­da­tion for death must be unanimous. 

Ultimately, through a series of deci­sions regard­ing how to apply Hurst, the Florida Supreme Court grant­ed new sen­tenc­ing hear­ings to 145 (37.6%) of the 386 pris­on­ers on death row at the time Hurst was decid­ed.¹

Florida’s 2023 Statute

In the years after Hurst, fol­low­ing sev­er­al changes to the com­po­si­tion of both the U.S. and Florida Supreme Courts, the law changed again. In January 2020, the Florida Supreme Court, in State v. Poole, over­turned its pri­or deci­sion in Hurst v. State and held that the only find­ing the jury must make to sat­is­fy the Sixth Amendment and, there­fore, the U.S. Supreme Court’s deci­sion in Hurst v. Florida, is that the State proved one aggra­vat­ing fac­tor beyond a rea­son­able doubt — the find­ing that ren­ders a cap­i­tal defen­dant eli­gi­ble for the death penalty.

While some sus­pect­ed that the Florida Legislature would amend the State’s cap­i­tal sen­tenc­ing statute in light of Poole, that didn’t hap­pen. Florida retained una­nim­i­ty for sen­tenc­ing deci­sions for sev­er­al years. However, when three jurors in the 2022 tri­al of Nikolas Cruz refused to vote for the death penal­ty, result­ing in a sen­tence of life with­out parole, Governor Ron DeSantis called on the leg­is­la­ture to low­er the cap­i­tal sen­tenc­ing stan­dard. Mr. Cruz had been con­vict­ed of killing 17 peo­ple in the 2018 shoot­ing at Marjory Stoneman Douglas High School in Parkland, Florida. 

In the 2023 leg­isla­tive ses­sion, using the foun­da­tion laid by Poole, the Florida Legislature amend­ed Florida’s cap­i­tal sen­tenc­ing scheme to require only that a jury find unan­i­mous­ly one aggra­vat­ing fac­tor beyond a rea­son­able doubt and rec­om­mend a sen­tence of death by a vote of 8 – 4 or more. When the statute went into effect on April 20, 2023, Florida became the state with the low­est stan­dard in the coun­try for impos­ing a death sentence.

By April 20, 2023, 85 (58.6%) of the 145 Hurst resen­tenc­ing pro­ceed­ings had been com­plet­ed. Only 15 had result­ed in new death sen­tences, while the oth­er 70 result­ed in the pris­on­er being resen­tenced to life in prison, leav­ing fifty-sev­en (39.3%) of the Hurst resen­tenc­ing proceedings pending.

Immediately, lit­i­ga­tion began across the State of Florida regard­ing the con­sti­tu­tion­al­i­ty of the new statute and its appli­ca­tion — both to new and pend­ing cas­es. Just last month, after almost three years, the Florida Supreme Court final­ly decid­ed the issue by reject­ing the con­sti­tu­tion­al chal­lenges to the 2023 statute in two cas­es—Jackson v. State and Hunt v. State.²

Current Status of Hurst Resentencing Proceedings

Ten years after Hurst, Florida is still not done with resen­tenc­ings: 125 (86%) of 145 cas­es have resolved, with 20 pend­ing.³ Two addi­tion­al pris­on­ers received nonunan­i­mous jury rec­om­men­da­tions for death in 2025 but remain in the ​“pend­ing” count as they have not yet been for­mal­ly resen­tenced. Several of the 20 pend­ing cas­es have resen­tenc­ing hear­ings sched­uled for early 2026. 

The com­plet­ed pro­ceed­ings have over­whelm­ing­ly result­ed in life sen­tences. Of the 119 Hurst resen­tenc­ings that have occurred,⁴ 93 (78%) end­ed in life with­out parole or a less­er sen­tence.⁵ This means that four out of every five pris­on­ers once sen­tenced to death and lat­er grant­ed Hurst relief were deemed by juries or pros­e­cu­tors to mer­it a less­er pun­ish­ment. Several fac­tors may have con­tributed to this phe­nom­e­non. Many of the pris­on­ers were sen­tenced to death in the 2000s, when pros­e­cu­tors pur­sued death sen­tences more fre­quent­ly, cap­i­tal defense coun­sel were inad­e­quate­ly fund­ed and resourced, and pub­lic sup­port for the death penal­ty was much high­er. Jurors today may be more crit­i­cal of the death penal­ty than they once were, as wrong­ful con­vic­tions, offi­cial mis­con­duct, and the trau­mat­ic back­grounds of cap­i­tal defen­dants have received more atten­tion. And pros­e­cu­tors may be more cau­tious of the high cost of cap­i­tal tri­als and appeals, face dif­fi­cul­ties using wit­ness­es and evi­dence from long-ago crimes, or rec­og­nize a defendant’s reduced cul­pa­bil­i­ty (such as evi­dence of intel­lec­tu­al dis­abil­i­ty that emerged after the ini­tial pros­e­cu­tion). Indeed, the state waived the death penal­ty for dozens of pris­on­ers eli­gi­ble for Hurst resen­tenc­ings, includ­ing at least 11 cas­es resolved after Florida passed its 2023 cap­i­tal sentencing scheme. 

One fac­tor is clear: a unan­i­mous jury stan­dard results in few­er death sen­tences. All pris­on­ers eli­gi­ble for Hurst relief were orig­i­nal­ly sen­tenced to death by divid­ed juries, some by a bare major­i­ty of sev­en votes. Most of those resen­tenced to life after Hurst had the ben­e­fit of Florida’s post-Hurst una­nim­i­ty stan­dard, which remains the stan­dard in every oth­er state besides Alabama. Research sug­gests that non-una­nim­i­ty laws mask juror con­cerns about the strength of the evi­dence or whether the defen­dant deserves death; they also tend to dilute the votes of jurors of col­or.⁶

The effect of Florida’s 8 – 4 law can be seen in the data: under the unan­i­mous stan­dard, 83% of Hurst pro­ceed­ings end­ed in life sen­tences, which dropped to 67% after the stan­dard was low­ered. The pro­por­tion of death sen­tences has doubled. 

Advocates argue that the appli­ca­tion of vast­ly dif­fer­ent jury sen­tenc­ing stan­dards to mem­bers of the same Hurst-eli­gi­ble class has result­ed in uncon­sti­tu­tion­al arbi­trari­ness and unequal treat­ment. For instance, Alan Wade, Tiffany Cole, and Michael James Jackson were all sen­tenced for the same crime and had their death sen­tences vacat­ed fol­low­ing Hurst. Mr. Wade was spared in 2022 when his resen­tenc­ing jury failed to reach a unan­i­mous vote for death. But Ms. Cole and Mr. Jackson’s resen­tenc­ing hear­ings occurred the fol­low­ing year, when the low­er sen­tenc­ing stan­dard had tak­en effect. Only two jurors vot­ed for death for Ms. Cole, result­ing in a life sen­tence, while the bare min­i­mum of eight jurors vot­ed for death for Mr. Jackson. This vote would have result­ed in a life sen­tence had it occurred just a year ear­li­er — and in every oth­er state — but con­demns him to death in Florida. 

According to Maria DeLiberato, Legal and Policy Director of Floridians for Alternatives to the Death Penalty, Mr. Jackson’s resen­tenc­ing was delayed at one point because of a hur­ri­cane. ​“The Supreme Court in Furman told us the death penal­ty is uncon­sti­tu­tion­al when it is applied in an arbi­trary and capri­cious man­ner — as ran­dom as a light­ning strike,” she said. ​“And look what hap­pened here: a man is fac­ing exe­cu­tion because his tri­al was delayed by an act of nature.” 

As anoth­er exam­ple, the Hurst resen­tenc­ing tri­al of Troy Victorino and Jerone Hunter was already under­way when Governor Ron DeSantis signed the 8 – 4 stan­dard into law. The jury had already been instruct­ed that they could only impose death unan­i­mous­ly. The state suc­cess­ful­ly argued that the new stan­dard should apply, lead­ing the tri­al court to declare a mis­tri­al. In 2025, they were each sen­tenced to death on four lop­sided nonunan­i­mous counts: Mr. Hunter by votes of 11 – 1, 8 – 4, 11 – 1, and 9 – 3, and Mr. Victorino by two votes each of 10 – 2 and 9 – 3. 

Since Florida low­ered its jury stan­dard, at least 42 indi­vid­ual juror votes have been cast for life in Hurst retri­als, only for a death sen­tence to be imposed.⁷

Even though the pro­por­tion of life sen­tences has fall­en since the 8 – 4 stan­dard took effect, a strong major­i­ty of cas­es — two-thirds — have still end­ed in life. This is in part because pros­e­cu­tors con­tin­ue to waive the death penal­ty in high num­bers. However, it also con­firms jurors’ grow­ing reluc­tance to impose cap­i­tal pun­ish­ment; at least twelve cas­es end­ed in life after pros­e­cu­tors failed to gar­ner the min­i­mum eight votes for death. And of the ten death sen­tences that have been secured in Hurst pro­ceed­ings under the 8 – 4 stan­dard, nine were imposed by divid­ed juries. Put dif­fer­ent­ly, the state has pro­duced only a sin­gle unan­i­mous death sen­tence in a Hurstresen­tenc­ing tri­al since low­er­ing its jury stan­dard in 2023. 

Finally, Florida’s record-set­ting year of exe­cu­tions in 2025 can­not be over­looked in the con­text of Hurst. When decid­ing which state pris­on­ers were eli­gi­ble for Hurst resen­tenc­ing, the Florida Supreme Court set a cut­off date, deny­ing relief to all pris­on­ers whose death sen­tences were final­ized before the U.S. Supreme Court’s 2002 deci­sion in Ring. At least sev­en of the 19 Florida pris­on­ers exe­cut­ed last year were sen­tenced under the scheme found uncon­sti­tu­tion­al in Hurst and would have been eli­gi­ble for resen­tenc­ing but for the cut­off date.⁸ For instance, dec­o­rat­ed Air Force vet­er­an Edward Zakrzewski died by lethal injec­tion on July 31, 2025, sen­tenced to death by a bare min­i­mum 7 – 5 jury vote; his sen­tence was final­ized three years before Ring. 

Conclusion

While the Hurst deci­sion was wel­comed as a ​“win” for cap­i­tal defen­dants, it has, in appli­ca­tion, result­ed in a decade of uncer­tain­ty for those of Florida’s death row because of the actions of the state courts and leg­is­la­ture. In Florida, death sen­tences and exe­cu­tions appear more arbi­trary than ever, and anoth­er wave of lit­i­ga­tion regard­ing the con­sti­tu­tion­al­i­ty of Florida’s revised cap­i­tal sen­tenc­ing scheme has already started. 

Forthcoming Article

Later this year, Melanie Kalmanson (TFDP) and Leah Roemer (DPI) will pub­lish a law review arti­cle cov­er­ing the past decade of cap­i­tal pun­ish­ment activ­i­ty in Florida and Alabama. The arti­cle is forth­com­ing in the Alabama Civil Rights and Civil Liberties Law Review.