A recent op-ed in the Miami Herald by Raoul Cantero (pictured), former Justice of the Florida Supreme Court, called for state legislators to require unanimity in the penalty phase of death penalty trials. Five years ago, a study conducted by the American Bar Association found that Florida was an outlier in allowing capital juries to find aggravating circumstances and recommend death sentences by a simple majority. The op-ed, co-written by Mark Schlakman, a member of the ABA’s Florida Death Penalty Assessment team, highlighted that there have been more death row exonerations in Florida than any other state. The authors said the bill “would help to ensure that the death penalty is reserved for the most heinous crimes.“ The writers concluded, “Regardless of … one’s views on capital punishment, maintaining the status quo and thereby Florida’s outlier status in this country does not serve the cause of justice.” Read full op-ed below.

Florida ignores ‘unanimous jury’ legislation in death penalty cases at its peril

Challenging the status quo to promote fairness and impartiality in our justice system can be both a virtue and an exercise in frustration.

When Florida’s death penalty process is at issue, even the most stalwart advocates for improvements in the administration of justice tend to shy away from the challenge, claiming that the timing isn’t right, that they don’t want to risk being branded as soft on crime or insensitive to victims’ issues, or that they don’t want to undermine their larger agendas by association.

Moreover, the Florida Bar Foundation, which had played an instrumental role in advancing death penalty process reform efforts, is less inclined to support such projects today given its depleted discretionary funding.

The alarming backdrop is that the Death Penalty Information Center, an independent Washington, D.C.-based nonprofit organization, reports that since 1973, Florida has reversed more death sentences than any other state.

Frank Lee Smith was exonerated posthumously after the actual perpetrator was identified. He died from cancer after languishing on death row for 14 years. Juan Melendez was exonerated after almost 18 years on death row when a taped confession by the real perpetrator was discovered. Reasonable people may disagree about the merit, efficacy and morality of capital punishment, but all should agree that the process must be fair, impartial and as timely as possible.

5 years ago, the American Bar Association released a comprehensive report developed by a team of 8 Florida-based experts which included an elected state attorney, a former public defender and a former Florida Supreme Court chief justice that raised serious concerns about Florida’s death penalty process.

One of the key findings notes that Florida is an outlier insofar as allowing capital-case juries to find aggravating circumstances and recommend a death sentence by a simple majority, e.g., 7-5. All 33 other death penalty states require some form of unanimity.

Some counter that if unanimity had been required, convicted serial killers such as Ted Bundy and Aileen Wuornos wouldn’t have received death sentences because both penalty-phase jury deliberations resulted in 10-2 votes.

But that is not necessarily so. Had those juries been instructed that unanimity was required, the nature of the deliberations would have changed, including conceivably the vote, and while the judge is expected to place great weight on a jury’s recommendation, it is the judge who imposes death sentences in Florida.

We may have reached a tipping point.

Sen. Thad Altman, R-Melbourne, filed a bill in anticipation of the 2012 regular session that would require unanimity in future penalty phase jury deliberations for both advisory recommendations of death and findings regarding the presence of aggravators, the basis for any death sentence. He expanded the scope of a unanimous jury bill that he previously filed to address issues raised in Evans, a recent case out of the Southern District in which U.S. District Judge Jose Martinez declared related aspects of Florida’s capital case sentencing scheme unconstitutional. The state has appealed.

Before Evans, the Florida Supreme Court in a 2005 opinion known as State v. Steele, had called upon the Legislature to revisit Florida’s death penalty statute to require unanimity for jury recommendations of death. Then-Gov. Jeb Bush observed that the issue was “definitely worth consideration” and cautioned legislators not to ignore the court.

The Legislature ignored the court.

Simply put, Altman’s bill would help to ensure that the death penalty is reserved for the most heinous crimes. It received strong editorial support from The Miami Herald and other major Florida newspapers as well as favorable responses from certain prosecutors.

But the Legislature has virtually ignored Altman’s bill as well.

A similar but more narrowly tailored unanimous jury bill filed by Rep. John Patrick Julien, D-North Miami Beach, is a potential House companion, and Sen. Oscar Braynon, D-Miami Gardens, who filed the Senate companion to Julien’s bill is a potential co-sponsor.

Legislative leadership seems to be falling prey to the notion that any change in Florida’s death penalty statute might result in unintended consequences and therefore should be resisted, essentially gambling that Evans will be reversed upon appeal.

If the state’s appeal is denied the consequences of failing to act would not be speculative.

Regardless of the outcome of the state’s appeal or one’s views on capital punishment, maintaining the status quo and thereby Florida’s outlier status in this country does not serve the cause of justice. States like Texas and Georgia, known for their pro-death penalty stance, require unanimous juries. So should we.

Raoul Cantero is a former justice of the Florida Supreme Court appointed by Gov. Jeb Bush. Mark R. Schlakman, senior program director for the Center for the Advancement of Human Rights at Florida State University, was a member of the ABA Florida Death Penalty Assessment.

(R. Cantero and M. Schlakman, “Florida ignores ‘unanimous jury’ legislation in death penalty cases at its peril,” Miami Herald, February 19, 2012). See Arbitrariness. Read more New Voices.