Application of Florida’s New 8 – 4 Capital Sentencing Scheme ​“Moves the Goalposts” and Violates Constitutional Prohibition on Ex Post Facto Laws

Florida’s new death sentencing law cannot apply to defendants who committed their crimes before the law was passed earlier this year, Florida Circuit Judge Kevin Abdoney rules. Florida law previously required that a sentencing jury must unanimously vote for death before the court could impose a death sentence, but in April of 2023, Gov. Ron DeSantis signed a bill into law that allows a jury to recommend a death sentence with as few as 8 votes. The ruling in Bryan Riley’s case means that the new law will not apply in his capital trial because doing so would violate the United States Constitution’s prohibition on ex post facto laws, or laws that retroactively impose criminal liability or punishment.

Mr. Riley is accused of committing a quadruple homicide in September 2021, two years before the new sentencing law was passed. The prosecution argued that if Mr. Riley is found guilty of first-degree murder, he should be sentenced to death under the new rules requiring only 8 jury votes to impose a death sentence.  The state argued this would not be an ex post facto law because death was the maximum punishment for first-degree murder in 2021, the same as it is in 2023, and the law change from a unanimous jury to an 8–4 recommendation was only “procedural.”

However, Judge Abdoney explained in his ruling that it is not necessary for a law to increase the maximum penalty for a crime for it to violate the Constitution. He cited U.S. Supreme Court cases to support his conclusion that a law that retroactively creates a “significant risk” of a higher punishment can also be considered an unconstitutional ex post facto law, even if the maximum punishment itself stayed the same. 

Applying that analysis to the case at hand, he stated that “[i]t takes no empirical evidence, but only a reasonable measure of practical wisdom, to agree that the prospect of persuading 8 members, as compared to every last member, of a 12-member jury to return a death recommendation is significantly (if not substantially) more likely,” and that “[i]n essence, one of the highest hurdles to the imposition of the death penalty has been lowered substantially.” He summed up his analysis by explaining that “[i]n short, the 2023 amendments… have moved the goalposts. In the same stroke of the pen, the Legislature has reduced friction on the path toward death while increasing it on that toward life. As a result, the risk to a defendant confronted with the possibility of being executed that he will actually meet such an end is greater now than before.”

Ultimately, he ruled that “under Florida’s new death penalty scheme, the defendant faces a significantly greater risk that he will receive the death penalty than under the law in effect at the time of the alleged offenses.” Pursuant to this ruling, if Mr. Riley is found guilty of the alleged murders, then he could only be sentenced to death after a unanimous vote from the jury.

The prosecutor’s office has already stated that it will appeal Judge Abdoney’s ruling.

This is not the first retroactivity challenge Florida’s new sentencing law has faced. In June 2023, several defendants who had previously been sentenced to death and had been granted resentencing hearings prior to the passage of the new law challenged the prosecution’s attempts to resentence them under the 8–4 jury rule, rather than under the prior, unanimous jury rule. These cases are pending before the Florida State Supreme Court.