At the urging of Governor Ron DeSantis, bills have been introduced in the Florida House and Senate that would allow death sentences even when the jury cannot come to a unanimous verdict on the proper penalty. The proposed legislation would also permit a presiding judge to override a jury’s recommendation of life and impose a death sentence. Death sentences would be allowed if at least eight jurors agreed, creating the lowest threshold in the nation for the imposition of a death sentence. Only Alabama currently allows death sentences when the jury is not unanimous, and it requires at least 10 jurors to agree on death.

The governor’s action came in the wake of a sentence of life without parole for Nikolas Cruz, the man convicted of the 2018 school shooting at Marjory Stoneman Douglas High School in the Miami suburb of Parkland. Three jurors in Cruz’s case voted for a life sentence, thereby ruling out the death penalty under existing law.

In an op-ed for City & State Florida, Melanie Kalmanson, a member of the Steering Committee for the American Bar Association’s Death Penalty Representation Project, and Maria DeLiberato, a capital defense lawyer in Tampa and Executive Director of Floridians for Alternatives to the Death Penalty (FADP), warned that the proposed legislation “would significantly reduce the procedural safeguards that ensure the constitutionality of death sentences imposed in Florida. …[T]his new proposal will make Florida an extreme outlier, undermines reliability and confidence in the capital sentencing process, and threatens the finality of all death penalty cases, which ultimately affects victims.”

In Hurst v. Florida, the U.S. Supreme Court struck down Florida’s earlier sentencing law, finding, “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.” The Florida Supreme Court initially interpreted that ruling as requiring jury unanimity in order to impose a death sentence, but in 2020, after several changes to the composition of the court, it retracted its earlier ruling and said unanimity was only required in finding that an aggravating factor exists.

Florida’s older death penalty laws led to more exonerations from death row than any other state in the modern era. DPIC has been able to determine the jury votes in 25 of the 26 death-row exonerations involving Florida’s earlier statute that now may be partially revived. In those 25 cases in which an innocent person could have been executed, juries shied away from unanimous death recommendations 23 times. Only two of the 25 cases had a unanimous jury recommendation for death.


Melanie Kalmanson and Maria DeLiberato, Opinion: Florida should­n’t be dif­fer­ent when it comes to death penal­ty, City & State Florida, February 1, 2023; Romy Ellenbogen, Florida bill would let judges over­ride juries and impose death penal­ty, Tampa Bay Times, February 22023.