Legislative Update: House Justice Appropriations Committee Hears HB555
Updates after the House Justice Appropriates Committee heard the pending legislation on Florida's capital sentencing statute this morning
This morning, the House Justice Appropriations Committee held a hearing on the bill pending in the House (HB 555) that seeks to lower the required jury vote to sentence a defendant to death from 12-0 to 8-4.
The original post on this proposed legislation is here. The post on the original committee hearings on this bill and the Senate companion bill is here.
Brief Background
I promise every day to explain what happened in 2016; I will get there. So much is happening that I haven’t had time to sit down and do it correctly. I do want to give a brief glimpse here for context, though.1
Hurst (2016)
Before 2016, Florida’s capital sentencing statute required only the jury’s majority vote for death before the judge can impose a sentence of death. In early 2016, in a case known as Hurst v. Florida, the U.S. Supreme Court determined that Florida’s capital sentencing scheme violated capital defendants’ right to trial by jury under the Sixth Amendment. The U.S. Supreme Court remanded the case back to the Supreme Court of Florida.
On remand, the Florida Supreme Court held in late 2016 that, pursuant to Hurst and under the Sixth Amendment, the Eighth Amendment, an the Florida Constitution, each of the jury’s findings in the capital sentencing process must be unanimous:
As we will explain, we hold that the Supreme Court's decision in Hurst v. Florida requires that all the critical findings necessary before the trial court may consider imposing a sentence of death must be found unanimously by the jury. We reach this holding based on the mandate of Hurst v. Florida and on Florida's constitutional right to jury trial, considered in conjunction with our precedent concerning the requirement of jury unanimity as to the elements of a criminal offense. In capital cases in Florida, these specific findings required to be made by the jury include the existence of each aggravating factor that has been proven beyond a reasonable doubt, the finding that the aggravating factors are sufficient, and the finding that the aggravating factors outweigh the mitigating circumstances. We also hold, based on Florida's requirement for unanimity in jury verdicts, and under the Eighth Amendment to the United States Constitution, that in order for the trial court to impose a sentence of death, the jury's recommended sentence of death must be unanimous.
Following Hurst, the Florida Legislature revised Florida’s capital sentencing statute to require a jury’s unanimous finding of each of the following:
That each aggravating factor was proven beyond a reasonable doubt;
That the aggravation is sufficient to impost a sentence of death;
That the aggravation outweighs the mitigation; and
That death is the appropriate sentence
That remains Florida’s current statute.
Poole (2020)
In 2020, after a sea change in the Florida Supreme Court, the Court overturned its 2016 decision in Hurst and held in State v. Poole that those findings listed above must not be found by a unanimous jury. Instead, the Court held that all the Sixth Amendment (and the U.S. Supreme Court’s holding in Hurst) requires is that the jury unanimously find that the State proved one aggravating factor beyond a reasonable doubt—which is what makes the defendant eligible for the death penalty:
As for the sentencing issue, we agree with the State that we must recede from Hurst v. State except to the extent that it held that a jury must unanimously find the existence of a statutory aggravating circumstance beyond a reasonable doubt.
That decision opened the door for the currently proposed legislation.
Updates from the Hearing
This Committee was much better educated on the realities of capital punishment than the last.2
Introducing the bill, the sponsor, Representative Jacques, said that the bill seeks to “correct what was done by the courts [in 2016] and remove the unanimous threshold.” As a speaker corrected later and as explained above, the courts did not amend the statute in 2016. Instead, the Legislature amended the statute in 2017 following the Supreme Court of Florida’s decision in Hurst on remand. The Legislature has not amended the statute since then—even in the several years after Poole. This legislation comes now because of the Parkland trial.
Sentencing Process
In discussing the bill, Representative Jacques stated that all 12 jurors still have to convict the defendant and find that an aggravating factor has been proven. He added: “We’re just talking about the last phase when it comes to the recommendation.” He’s correct on the first part, but he’s wrong on the second part. We’re not “just talking about” the jury’s recommendation. Instead, we’re removing the requirement that the jury find each determination unanimously, including:
That each aggravating factor was proven beyond a reasonable doubt;
That the aggravation is sufficient to impost a sentence of death;
That the aggravation outweighs the mitigation; and
That death is the appropriate sentence
Under the new statute, none of these would be required. Instead, the jury would unanimously find one aggravating factor and then proceed to voting on the appropriate sentence after independently considering these determinations. These findings make a difference—as the recent retrial of Michael R. Jackson from Clay County shows.
Costs
As this was the appropriations committee, the cost of the death penalty was appropriately discussed. Rep. Gottlieb asked about the increased cost of the appellate process in death penalty cases, confirming that “[e]very death penalty case gets a direct appeal to the Supreme Court.” Responding, Rep. Jacques stated: “We simply don’t know” if there would be an increase in cost as a result of this bill. He suggested the cost could be the same in the appellate process.
This is almost certainly impossible. As Maria DeLiberato and I recently explained in this op-ed, the cost of a death sentence is substantially higher than a sentence of life in prison without parole. When Rep. Gottlieb asked Rep. Jacques to confirm that a death sentence costs $25 million per inmate more than a sentence of life in prison, Rep. Jacques responded: “I don’t have that number in front of me, but we can look into that.”
The direct appeal is just one of several appeals each death row inmate raises before execution. As the speaker for the Florida Public Defenders Association stated: “Death penalty cases are by far and away the most expensive cases.” As a result of this bill, he said, the state “will see a substantial increase in a cost in the system.” While FPDA “can’t quantify the number at this time,” they know it will substantially increase.
He further explained that state offices are at “crisis level” for retaining the people who “would need to come into play” to make this bill work—i.e., staff, attorneys, etc. He said that, if this bill passes, they “need to be given the fiscal tools” to carry out their statutory, ethical, and constitutional duties in defending those sentenced to death.
Exonerations
Exonerations were once again discussed, as Florida is responsible for the highest number of exonerations from death row in the country. Almost all of the exonerees were sentenced to death by non-unanimous juries.
Rep. Bracy Davis said no one should be sentenced to die when jurors “aren’t completely convinced.”
Is one case enough to change the statute?
Ultimately, this bill turns on one case—the outcome of the Parkland trial. The Representatives who voted no all seemed to agree that the Parkland jury got it wrong but didn’t feel that the statute should be changed based on one case. As Rep. Beltran said, we “don’t need to go out of our way to make it easier to execute.” Rep. Campbell said that a change from 12-0 to 8-4 is “egregious.”
The bill barely passed the Committee with a vote of 8-6.
Stay tuned.