Florida Denies Relief to Prisoner Unconstitutionally Sentenced to Death, in Decision that Could Affect More Than 75 Cases

In a decision that could have broad impact on the state's death row, the Florida Supreme Court on August 10 upheld the death sentence imposed on James Hitchcock, despite his having been unconstitutionally sentenced to death. In a 6-1 ruling, the court said it would not enforce its 2016 ruling in Hurst v. State—which declared unconstitutional any death sentence imposed after one or more sentencing jurors had voted that a life sentence was the appropriate punishment—in cases that had completed the direct appeal process before June 2002. That date is when the U.S. Supreme Court ruled in Ring v. Arizona that a capital defendant has a Sixth Amendment right to have the jury determine all facts necessary for the state to impose a death penalty. But the Florida courts did not apply Ring to death-penalty cases in the state until the U.S. Supreme Court struck down Florida's death-penalty statute in 2016. At that time, in Hurst v. Florida, Justice Sonia Sotomayor reiterating that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." When Hurst's case returned to the Florida Supreme Court later that year, the state court ruled that non-unanimous jury verdicts were unconstitutional. However, the court then ruled in an appeal brought by Mark Asay—scheduled to be executed August 24—that it would not apply Hurst to cases that pre-dated Ring. Hitchcock and other Florida death-row prisoners pressed a number of other constitutional arguments, including that death sentences imposed after non-unanimous jury votes are unreliable, in violation of the Eighth Amendment, and that the court's bright-line cutoff for enforcing Hurst was unconstitutionally arbitrary, violating due rocess and the right to equal protection of the law. The Hitchcock court declined to consider those arguments, dismissing them as "nothing more than arguments that Hurst v. State should be applied retroactively to [Hitchcock's] sentence." Hitchcock's case was closely watched because the Florida courts had frozen the briefing schedules for 77 similarly situated death-row prisoners who also were arguing that Hurst should be enforced in their cases. Justice Barbara J. Pariente dissented, writing, "[r]eliability is the linchpin of Eighth Amendment jurisprudence, and a death sentence imposed without a unanimous jury verdict for death is inherently unreliable." She noted that Hitchcock, who was twenty years old at the time of his crime, has had four different unconstitutional death sentences since he was first tried in 1977, with the U.S. Supreme Court twice overturning the death penalty in his case. She further noted that four Florida Supreme Court justices had written that his death sentence was disproportionate and that he should be resentenced to life. “To deny Hitchcock relief when other similarly situated defendants have been granted relief amounts to a denial of due process,” she wrote.

Though concurring in the outcome, Justice Joseph Lewis criticized the court for "tumbl[ing] down the dizzying rabbit hole of untenable line drawing" and described the line the court chose to draw as "determinative [but] arbitrary." Its approach, he wrote, risks “wrongfully executing those defendants” who "properly preserved challenges to their unconstitutional sentences through trial and direct appeal," before the Florida courts recognized the unconstitutionality of the state's death-penalty practices. “'[T]wo wrongs don’t make a right,'” Lewis wrote, "yet, this Court essentially condones that outcome with its very limited interpretation of Hurst’s retroactivity and application.” 

(J. Saunders, "Florida Supreme Court rejects resentencing appeal by Orange County man on death row," News Service of Florida, August 11, 2017; J. Musgrave, "Florida Supreme Court strikes blow to death row inmates," Palm Beach Post, August 11, 2017.) Read the Florida Supreme Court's opinion in Hitchcock v. Florida, No. SC17-445 (Fla. Aug. 10, 2017). See Florida, Sentencing, and Arbitrariness.