Overwhelming Percentage of Florida’s Hurst Resentencing Hearings End in Life Sentences

New Non-Unanimity Law Creates Chaos in Remaining Cases

According to new research by the Death Penalty Information Center, 82% of Florida death-sen­tenced pris­on­ers who com­plet­ed new sen­tenc­ing pro­ceed­ings under Hurst v. Florida (2016) have been resen­tenced to life in prison with­out parole. Hurst found Florida’s death penal­ty scheme uncon­sti­tu­tion­al, and the Florida Supreme Court sub­se­quent­ly held that new death sen­tences must be unan­i­mous, neces­si­tat­ing new sen­tenc­ing hear­ings. Of the 157 cas­es DPIC pre­vi­ous­ly iden­ti­fied as Hurst-eli­gi­ble — any­one sen­tenced to death by a non-unan­i­mous jury since 2002 — about two-thirds have been resolved and one-third remain. However, in April 2023, Governor Ron DeSantis signed a bill autho­riz­ing a new non-unan­i­mous sen­tenc­ing stan­dard of 8 – 4 in cap­i­tal cas­es. This new law has sown con­fu­sion as courts have dif­fered on whether to apply the 8 – 4 stan­dard to the remain­ing Hurst cas­es and defen­dants have chal­lenged its appli­ca­tion as unconstitutional. 

The high rate of life sen­tences in Hurst pro­ceed­ings illus­trates just how heav­i­ly Florida has his­tor­i­cal­ly relied on non-unan­i­mous votes to secure death sen­tences. The Hurst-eli­gi­ble pris­on­ers with non-unan­i­mous death sen­tences rep­re­sent­ed at least 40% of the state’s death row at the time of the Supreme Court’s deci­sion, with even more Florida pris­on­ers sen­tenced non-unan­i­mous­ly but not eli­gi­ble for new sen­tenc­ing hear­ings because their con­vic­tions became final before 2002. DPIC’s research shows that when Florida was required to obtain the unan­i­mous votes of twelve jurors to reaf­firm a death sen­tence in a pri­or non-unan­i­mous case, four out of every five pro­ceed­ings end­ed in a life sen­tence instead. Every oth­er state except Alabama requires a unan­i­mous jury vote for death.

One expla­na­tion for the high num­ber of life sen­tences is the state’s deci­sion to waive death for many of the Hurst-eli­gi­ble pris­on­ers. The cause of the waivers is ​“two-fold,” said Maria DeLiberato, Executive Director of Floridians for Alternatives to the Death Penalty. ​“In some cas­es pros­e­cu­tors decid­ed not to seek the death penal­ty because they didn’t feel they could get a unan­i­mous death sen­tence, while in oth­er cas­es they opt­ed for final­i­ty over uncer­tain­ty.” Ms. DeLiberato not­ed one case in which an elder­ly sur­viv­ing vic­tim sup­port­ed a life with­out parole sen­tence so that she did not have to spend the rest of her life par­tic­i­pat­ing in death penal­ty lit­i­ga­tion. Ms. DeLiberato praised the victim’s ​“grace and courage” and pre­dict­ed that such con­sid­er­a­tions would lead the state to waive death in other cases. 

For the pris­on­ers who under­went new sen­tenc­ing hear­ings, the high per­cent­age of life sen­tences sug­gests that they would not have received the death penal­ty if sen­tenced for the first time today. Death sen­tences have fall­en over the past two decades as cap­i­tal defense fund­ing, train­ing, pros­e­cu­to­r­i­al account­abil­i­ty, legal pro­tec­tions for vul­ner­a­ble groups, and pub­lic aware­ness of wrong­ful con­vic­tions have increased. Capital pun­ish­ment lawyer and schol­ar Stephen Bright has termed these ​“zom­bie cas­es,” to char­ac­ter­ize peo­ple who ​“almost cer­tain­ly would not be sen­tenced to death today” but ​“remind us of just how unfair” the sys­tem once was. 

Further, DPIC’s find­ings con­firm aca­d­e­m­ic research that sug­gests non-unan­i­mous sen­tences obscure ​“resid­ual doubt” and sym­pa­thy that would oth­er­wise spare defen­dants from the death penal­ty. Three Florida men who had been sen­tenced to death by divid­ed juries walked free in the years after Hurst: Clemente Aguirre-Jarquin and Ralph Wright were exon­er­at­ed, while Jason Simpson pled guilty to less­er charges and was sen­tenced to time served (meet­ing DPIC’s cri­te­ria for par­tial exon­er­a­tion). Four addi­tion­al men sen­tenced non-unan­i­mous­ly would have been eli­gi­ble for relief under Hurst had they not been exon­er­at­ed before it was decid­ed. A 2020 DPIC analy­sis found that 22 of 24 Florida exonerees for whom data was avail­able (92%) were sen­tenced to death by non-unan­i­mous juries; now with 30, Florida has long-held the dis­tinc­tion of hav­ing the country’s high­est num­ber of exonerees. The Editorial Board of the South Florida Sun Sentinel cit­ed this fact in argu­ing against the appli­ca­tion of the new 8 – 4 law in Hurst cas­es on December 19. ​“Florida’s nation-lead­ing total of 30 death row exon­er­a­tions shows that this state’s crim­i­nal jus­tice sys­tem is too fal­li­ble to entrust it with man­u­fac­tur­ing even more exe­cu­tions,” the edi­tors wrote. The law ​“will inevitably pack death row with more peo­ple who don’t belong there.”

Duval County, home to the city of Jacksonville, is a micro­cosm of the chaos and incon­sis­tent out­comes Hurst defen­dants have expe­ri­enced since the 8 – 4 law went into effect in April. Michael James Jackson, Tiffany Cole, and Alan Wade were sen­tenced to death over 15 years ago as co-defen­dants in the 2005 mur­der of Reggie and Carol Sumner. The three along with anoth­er co-defen­dant were con­vict­ed of kid­nap­ping, rob­bing, and bury­ing the Sumners alive. All three had their sen­tences over­turned in the wake of Hurst because their juries had not been unanimous. 

Mr. Wade’s new penal­ty phase was set first on the dock­et, for June 2022, under the unan­i­mous stan­dard. A jury resen­tenced him to life in prison after emo­tion­al mit­i­ga­tion tes­ti­mo­ny about Mr. Wade’s child­hood sex­u­al abuse, trau­ma, and youth at the time of the crime. However, based sole­ly on admin­is­tra­tive logis­tics, Mr. Jackson and Ms. Cole had their resen­tenc­ing hear­ings set for the fol­low­ing year — which brought them under the purview of a much low­er sen­tenc­ing stan­dard when the new law took effect in April 2023. A court ruled over defense objec­tions that the 8 – 4 law applied to their cas­es. Only two jurors vot­ed for the death penal­ty for Ms. Cole in August, spar­ing her, while Mr. Jackson was sen­tenced to death under the now-low­est sen­tenc­ing stan­dard in the coun­try, the bare min­i­mum: 8 – 4. The ver­dict means that one-third of the jurors who heard the evi­dence against Mr. Jackson believe he should not face execution. 

According to Ms. DeLiberato, Mr. Jackson’s resen­tenc­ing was delayed at least once because of a hur­ri­cane — the tim­ing of which affect­ed the sen­tenc­ing stan­dard in his case. ​“The Supreme Court in Furman told us the death penal­ty is uncon­sti­tu­tion­al when it is applied in an arbi­trary and capri­cious man­ner — as ran­dom as a light­ning strike,” she said. ​“And look what hap­pened here, a man is fac­ing exe­cu­tion because his tri­al was delayed by an act of nature.” She argued that apply­ing a dif­fer­ent legal stan­dard to some Hurst defen­dants based on admin­is­tra­tive tim­ing rep­re­sent­ed ​“a mark­er of arbi­trari­ness in the death penal­ty that on its own is viola­tive of the Constitution.” 

In September 2023, after lit­i­gat­ing aggres­sive­ly for the appli­ca­tion of the 8 – 4 law in Mr. Jackson and Ms. Cole’s cas­es, and just one month after they were resen­tenced, Duval County pros­e­cu­tors waived the death penal­ty for the resen­tenc­ing of Galante Phillips. Mr. Phillips was orig­i­nal­ly sen­tenced to death by a vote of 7 – 5, the min­i­mum required at the time, for the 2005 mur­der of a store employ­ee dur­ing a rob­bery. Prosecutors did not offer an expla­na­tion for their deci­sion — but the mur­der of the Sumners, for which Mr. Jackson and Ms. Cole faced resen­tenc­ing, was exten­sive­ly cov­ered in the media and a much high­er profile crime.

At the time the new sen­tenc­ing law took effect, six­teen Duval Hurst cas­es had been resolved: eleven pris­on­ers were resen­tenced to life, four to death, and one par­tial­ly exon­er­at­ed (Mr. Simpson). This break­down — 25% resen­tenced to death and 75% to life or less — reflects the over­all spread of Hurst out­comes across Florida. Since only nine of the 105 final­ized Hurst cas­es were resolved since the pas­sage of the new law, DPIC’s research find­ings large­ly cap­ture the trends of the peri­od dur­ing which Florida required unan­i­mous sen­tences. Seven Duval Hurst pris­on­ers await resen­tenc­ing under a low­er stan­dard than the earlier sixteen. 

In Broward County, home to Fort Lauderdale, no Hurst-eli­gi­ble pris­on­er has had to face the low­er sen­tenc­ing stan­dard. Based on pub­lic records, pros­e­cu­tors have waived death for at least three defen­dants — Charles L. Anderson, Alex Pagan, and Robert Rimmer — with anoth­er, Ronnie Lee Williams, to be resen­tenced to life on January 4. However, Broward County has sought to apply the 8 – 4 law to new cap­i­tal defen­dants pend­ing tri­al for crimes com­mit­ted before it passed. Clarck Paul​’s tri­al under the new law start­ed just weeks after Governor DeSantis signed the bill. The jury vot­ed for a life sen­tence after only 15 min­utes of deliberation. 

“Florida’s 2023 cap­i­tal sen­tenc­ing statute again threw Florida’s cap­i­tal sen­tenc­ing sys­tem into dis­ar­ray” less than ten years after Hurst had already upend­ed it, said Melanie Kalmanson of Tracking Florida’s Death Penalty, who has con­duct­ed exten­sive research into Hurst and its after­math. Courts have ruled that the new law applies in at least nine pend­ing Hurst cas­es. In Volusia County, Troy Victorino and Jerone Hunter had their Hurst sen­tenc­ing hear­ings end in a mis­tri­al when the law took effect in the mid­dle of the pro­ceed­ings; pros­e­cu­tors then sought to apply the low­er sen­tenc­ing stan­dard, and an appel­late court agreed. The judge called the sit­u­a­tion a ​“mas­sive dump­ster fire.” By con­trast, a judge in three first-time tri­als in Polk County held that the new law would be an uncon­sti­tu­tion­al ex post fac­to law if applied to crimes com­mit­ted before its passage. 

Most of the Hurst-eli­gi­ble pris­on­ers fac­ing the low­er sen­tenc­ing stan­dard have chal­lenged its appli­ca­tion at the Florida Supreme Court. However, on December 14, the Court declined to rule on the issue in the case of Leonard Gonzalez, hold­ing that he could only chal­lenge the appli­ca­tion of the law if he was retried again and sen­tenced to death. ​“The review he seeks must come at a lat­er time, if at all,” the Court wrote, punt­ing on the ques­tion of the law’s con­sti­tu­tion­al­i­ty. Three days lat­er, the Court denied the peti­tions of Jason Looney and Renaldo McGirth, cit­ing Gonzalez and autho­riz­ing the two men for upcom­ing tri­al dates as well. 

“We’ve gone back­wards,” said Ms. DeLiberato. She argued that Florida’s death penal­ty scheme is ​“even­tu­al­ly going to be over­turned again” based on the Supreme Court’s clear direc­tives to the state in Hurst. ​“The hun­dreds of vic­tims in the cas­es going to tri­al now under the uncon­sti­tu­tion­al law are going to think that there was a death sen­tence, and then will get a phone call say­ing we’re doing this all over again.” 

Ms. DeLiberato also empha­sized that the ​“resur­gence” of non-una­nim­i­ty in Florida ​“does not mean that the atti­tudes of every day Floridians about the death penal­ty are any dif­fer­ent than those nation­wide. Individual Floridians, like the rest of the coun­try, are trend­ing away from the use of the death penal­ty.” She argued that the 8 – 4 law ​“seems to be more relat­ed to the life ver­dict in the Parkland shooter’s case, cou­pled with the Governor’s pres­i­den­tial aspi­ra­tions.” Her goal is that ​“in 2024, the peo­ple of the state of Florida will urge their law­mak­ers to real­ly take a hard and hon­est look at the costs, both emo­tion­al and finan­cial, of Florida’s bro­ken death penalty.” 

The Sun Sentinel edi­tors expressed sim­i­lar con­cerns. ​“Prisoners could be put to death under a law that was passed after they com­mit­ted their crimes,” they wrote. ​“That is not justice…Florida may spend mil­lions of dol­lars try­ing and defend­ing pris­on­ers under the new law, only to have it all wast­ed if the high court even­tu­al­ly over­turns the law, as it should.”