Florida Supreme Court in Tallahassee, Florida.

In April 2023, Florida Governor Ron DeSantis signed legislation that lowered the threshold for juries to recommend death sentences from a unanimous vote to a vote of 8-4 in favor of death, and experts allege this law has resulted in a “quintessential game of chance” for those awaiting capital resentencing or trial. An amicus brief, or friend-of-the-court brief, submitted to the Florida Supreme Court argues that this change to the state’s death penalty process violates capital defendants’ rights under the Eighth and Fourteenth Amendments. The change allowing for 8-4 jury sentence decision came amid a capital resentencing process that started with the 2016 United States Supreme Court decision in Hurst v. Florida, which held that Florida’s capital sentencing scheme was unconstitutional. This decision resulted in resentencing hearings for approximately 150 death row prisoners in Florida.

Michael James Jackson, convicted of two 2005 Jacksonville murders, was one of approximately 40 individuals awaiting resentencing when the new 8-4 law took effect in April 2023. Just a month later, on May 25, 2023, a jury recommended, in an 8-4 vote, that Mr. Jackson be resentenced to death. In August 2023, a judge formally resentenced Mr. Jackson to death. In support of Mr. Jackson, a coalition of both local and national organizations argued in an amicus brief that the new law has created “unconstitutional haphazardness.” Melanie Kalmanson, an attorney with Quarles & Brady LLP, wrote on behalf of the coalition that resentencing hearings have relied on “an arbitrary line-drawing based on the date” that sentencing was finalized. “Data on the Hurst resentencing proceedings show that whether a capital defendant was resentenced under Florida’s post-Hurst unanimity statute, or the 8-4 statute is the quintessential game of chance,” said the brief. 

Mr. Jackson’s case is the first direct Florida Supreme Court appeal under the 2023 non-unanimity law and an additional amicus brief alleges that the 8-4 law violates the equal protection rights of Black jurors. Five Black state representatives, a former state senator, the NAACP Florida State Conference and Equal Ground Education Fund Inc., filed a separate brief alleging that the law “disproportionately excludes Black jurors’ votes in capital sentencing,” wrote Christopher Belelieu, an attorney with Gibson, Dunn & Crutcher. “Like systemic state systems of exclusion and racially tainted peremptory strikes, non-unanimous juries operate to exclude the voices of Black jurors, thereby depriving jurors of the equal protection of the laws guaranteed by the Fourteenth Amendment,” said the brief.

As of March 31, just 17% of resentencing proceedings resulted in unanimous death sentences. Ms. Kalmanson wrote that the Florida Supreme Court needs to “rectify the unconstitutional arbitrariness created by this new subset of cases.” The brief ultimately asks the Court to “level the playing field for those prisoners who were granted a new penalty phase after Hurst.” Maria DeLiberato, the Executive Director of Floridians for Alternatives to the Death Penalty told The News Service of Florida that Mr. Jackson’s case highlights the “sheer arbitrariness of Florida’s death penalty.” Ms. DeLiberato also said that “the Legislature’s 2023 law change, eliminating unanimity, has thrust Florida’s death penalty scheme into chaos. Mr. Jackson has a strong claim that his death sentence is not the product of lawful, constitutional verdict, but instead is wholly arbitrary and unreliable.”