Florida Judge Imposes Life Sentence for Joshua McClellan, Overriding Non-Unanimous Jury Recommendation for Death

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.