Florida is poised to become the state with the nation’s lowest threshold for juries to recommend death sentences, after the state legislature passed a bill allowing a judge to impose death if at least eight out of twelve jurors agree. Most states, including Florida, have required a unanimous jury verdict to recommend death. Governor Ron DeSantis (pictured) is expected to sign the bill, following the House’s approval on April 13, 2023. Alabama requires at least 10 jurors to approve a death sentence. It is likely that the Florida legislation will meet challenges in state and federal court.

Opponents of the bill noted that Florida has the highest number of exonerations from death row in the nation, at 30. Most of those exonerated were sent to death row by non-unanimous jury votes.

DPIC’s reading of the legislation indicates that, if a jury has not been waived:

  1. The jury MUST unanimously find, beyond a reasonable doubt, that at least one aggravating factor in the statute exists in the case. Otherwise, the defendant is not eligible for the death penalty.
  2. If eligible and the jury has at least 8 votes for a death sentence, the recommendation MUST be for death. If there are less than 8 votes for death, the recommendation MUST be for life without parole.
  3. If the jury’s recommendation is for life without parole, the judge MUST impose that sentence.
  4. If the jury’s recommendation is for death, the judge MAY impose that sentence or MAY impose a life sentence.

The judge must provide a written order explaining how the sentence was arrived at, including reasons for rejecting a jury’s recommendation, if applicable.

The Florida House also voted on April 13 to pass a bill allowing the death penalty for sexual battery of a child under age 12. The bill has not yet received a vote in the Senate. That measure would violate U.S. Supreme Court precedent under Kennedy v. Louisiana (2008), but some legislators hope it may prompt the U.S. Supreme Court to reconsider the issue.

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Romy Ellenbogen, Nation’s low­est thresh­old for death sen­tences by juries is head­ed to DeSantis’ desk, Miami Herald, April 13, 2023; Florida House backs death penal­ty in child rapes, CBS Miami, April 13, 2023