On November 20, Florida Circuit Judge Heidi Davis sentenced Joshua McClellan to life in prison after a non-unanimous jury returned a recommendation of death in September by a 10-2 vote. Judge Davis noted the mitigation evidence presented by Mr. McClellan’s defense, including mental health evaluations and testimony regarding his traumatic upbringing, as an explanation for her decision. Mr. McClellan was one of the first defendants to receive a non-unanimous death recommendation under a new law signed earlier this year by Governor and presidential candidate Ron DeSantis, allowing death sentences when only 8 jurors vote in favor. Florida and Alabama are now the only states that permit non-unanimous death sentences.

Mr. McClellan was convicted of the murder of 92-year-old Rubye James, a retired teacher for whom he had done odd jobs. His co-defendant Krystopher Laws pled guilty in 2020 and received a sentence of life in prison. The jury found five aggravating circumstances: that Mr. McClellan “was an accomplice; the murder was for financial gain; it was done to avoid arrest or detection; it was cold, calculated and premeditated”; and Ms. James “was an especially vulnerable victim.” Judge Davis agreed that Mr. McClellan was an accomplice and Ms. James an especially vulnerable victim, but struck the remaining aggravators. She ruled that those factors were either duplicative or rested on insufficient evidence.

Judge Davis held that the mitigating factors outweighed the remaining aggravating factors, favoring a life sentence. She assigned great weight to defense expert testimony that Mr. McClellan was “very immature” and “his brain development was far behind that of a typical 19-year-old” at the time of the crime. She also assigned some weight to testimony regarding Mr. McClellan’s upbringing, such as the fact that he was twice removed from his mother’s home, lived in poverty, and attended school as a disabled special education student. Additional factors weighing in her decision included evidence of brain abnormalities, demonstration of remorse, good behavior, prenatal drug use, and personal drug use.

Earlier this year, legal researchers Russell Stetler, Maria McLaughlin, and Dana Cook found in a review of 600 death penalty cases that sentence outcomes depend heavily on the quality of the mitigation defense, rather than the facts of the case itself. Their study, titled “Mitigation Works,” concluded that “the effective investigation and presentation of mitigating evidence can forestall a death sentence no matter how death-worthy the crime facts may appear at first glance.” Defense mitigation work has improved markedly over the past two decades due to mitigation-focused capital defense trainings as well as professional standards that recommend including a dedicated mitigation specialist on every defense team. The researchers believe that improved mitigation performance has contributed to the falling number of death sentences and executions since their peak in the late 1990s. According to Mr. Stetler, mitigation “provides the potential humanizing, life-saving evidence to which every capitally charged defendant is entitled under the Sixth Amendment,” and “provides the evidence that jurors need to make the reasoned moral decision they are asked to render in capital cases and without which there cannot be reliable results.”

The non-unanimity law that allowed the Florida jury to recommend a death sentence for Mr. McClellan over two dissenting votes has received criticism from figures across the political spectrum. In June, commentator Christian Schneider called for conservatives to oppose Florida’s 8-4 law. “Those concerned about government abuse should be troubled by the relaxing of the constraints that keep governments from exercising their most serious power: the ability to kill people,” he wrote. Research has shown that non-unanimous death sentences are a hallmark of wrongful convictions; a 2020 DPIC analysis found that 22 of 24 Florida exonerations for which data was available (92%) involved non-unanimous jury recommendations. While the Supreme Court has not ruled on the constitutionality of non-unanimous death sentences, the Court found non-unanimous convictions unconstitutional in Ramos v. Louisiana (2020). The Court discussed the history of non-unanimity laws as tools to “dilute the influence of racial, ethnic, and religious minorities” on juries, thereby barring jurors with legitimate concerns about the imposition of the death penalty in a particular case from expressing their voice through the traditional deliberative method of coming to unanimous agreement.


Frank Stanfield, A jury rec­om­mend­ed death for man who killed woman, 92. The judge dis­agreed. Here’s why., Daily Commercial, November 21, 2023; Frank Stanfield, In 10 – 2 vote, jury rec­om­mends death for man con­vict­ed of killing Rubye James, Daily Commercial, September 3, 2023; Russell Stetler, Maria McLaughlin, Dana Cook,Mitigation Works: Empirical Evidence of Highly Aggravated Cases Where the Death Penalty Was Rejected at Sentencing51 Hofstra L. Rev. 89 (2022); Russell Stetler, Death Penalty Keynote: Why Mitigation Matters, Now and for the Future, 61 Santa Clara Law Review 699 (2021); American Bar Association, Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, 36 Hofstra Law Review 677 (2008).