Florida Supreme Court Limits Retroactive Scope of Its Ruling Permitting Death Sentences After Non-Unanimous Jury Votes

In two long-await­ed deci­sions that will alter the land­scape of Florida’s death row, the Florida Supreme Court has lim­it­ed the reach of a land­mark rul­ing that over­turned the state’s con­sti­tu­tion­al pro­hi­bi­tion against death sen­tences imposed after a non-unan­i­mous jury vote for death. The court’s January 2020 deci­sion in State v. Poole had raised the specter that the court might rescind orders that had over­turned the death sen­tences of more than 100 Florida death-row pris­on­ers and grant­ed them new sentencing trials.

However, on November 25, the court decid­ed the cas­es of two defen­dants sen­tenced to death by non-unan­i­mous juries who had been await­ing resen­tenc­ing under the court’s 2016 deci­sion, Hurst v. State. In those cas­es, the court unan­i­mous­ly rebuffed state pros­e­cu­tors’ efforts to rein­state the death sen­tences of Bessman Okafor and Michael James Jackson with­out afford­ing them the cap­i­tal resen­tenc­ing hear­ings pre­vi­ous­ly ordered by the court. 

In January 2020, after state tri­al and appel­late courts had over­turned the death sen­tences of numer­ous death-row pris­on­ers, the Florida Supreme Court reced­ed from its deci­sion in Hurst and rein­stat­ed Mark Anthony Poole’s non-unan­i­mous death sen­tence. The court sub­se­quent­ly applied that change in the law to oth­er cas­es in which pros­e­cu­tors had appealed low­er court deci­sions that had relied on Hurst in grant­i­ng death-row pris­on­ers new sen­tenc­ing tri­als. Prosecutors across the state then attempt­ed to can­cel the penal­ty-phase tri­als and rein­state the death sen­tences of pris­on­ers who had been grant­ed relief under Hurst but had not yet com­plet­ed the resentencing process.

Rejecting the pros­e­cu­tors’ posi­tion, the court stat­ed that once an order vacat­ing a death sen­tence has become final, ​“nei­ther we nor the tri­al court can law­ful­ly rein­state that sentence.”

In State v. Okafor, pros­e­cu­tors argued that the Florida Supreme Court should rein­state Bessman Okafor’s death sen­tence even though it had vacat­ed his death sen­tence dur­ing his 2017 direct appeal. In State v. Jackson, pros­e­cu­tors argued that Michael James Jackson was not enti­tled to a resen­tenc­ing hear­ing even though the pros­e­cu­tion had not appealed a tri­al court order grant­i­ng Jackson relief based on Hurst. In unsigned opin­ions, the court wrote that in both cas­es, the deci­sions over­turn­ing the death sen­tences had become final and were not sub­ject to fur­ther judicial review.

The court ​“acknowledge[d] the bur­den that resen­tenc­ing pro­ceed­ings will place on the [fam­i­ly mem­bers of] vic­tims” in Okafor’s and Jackson’s cas­es and ​“in sim­i­lar cas­es that will be gov­erned by our deci­sion here. Nonetheless” the court said, ​“our hold­ing is com­pelled by applicable law.”

After a series of con­tro­ver­sial deci­sions remov­ing sub­stan­tive and pro­ce­dur­al pro­tec­tions from cap­i­tal defen­dants and death-row pris­on­ers, advo­cates and legal schol­ars were not cer­tain that the court would respect the final­i­ty of final judg­ments under Hurst. The court had denied relief to cap­i­tal appel­lants in more than fifty con­sec­u­tive cas­es and in the span of less than a year had reced­ed from Hurst, aban­doned a cen­tu­ry-old stan­dard for height­ened review in cas­es in which a con­vic­tion rest­ed sole­ly on cir­cum­stan­tial evi­dence, lim­it­ed enforce­ment of a U.S. Supreme Court case that bars exe­cu­tion of intel­lec­tu­al­ly dis­abled pris­on­ers, and declared the 50-year-old cap­i­tal appeal safe­guard of pro­por­tion­al­i­ty review to be unconstitutional.

Advocates expressed relief at the deci­sion. Maria DeLiberato, one of Jackson’s lawyers, said that while Poole had ​“stripped away impor­tant con­sti­tu­tion­al pro­tec­tions, the Court acknowl­edged today that the Legislature has rec­og­nized that Florida’s pre­vi­ous out­lier sta­tus in allow­ing non-unan­i­mous rec­om­men­da­tions in death penal­ty cas­es will not con­tin­ue.” Hannah Gorman, a research schol­ar at the Florida International University College of Law’s Florida Center for Capital Representation, said, ​“Finally, the Florida Supreme Court gives us a good deci­sion. One hun­dred lives now have a shot at a fair penalty trial.”