What happened in 2016? (Part I)

This is Part I of V explaining what exactly happened in 2016 when the U.S. Supreme Court answered a question that had plagued Florida's capital punishment system for years.

Mar 17, 2023

I have promised to explain what happened in 2016 several times now—how Florida’s capital sentencing statute got to where it is now and what happened in 2016 to get us here.

There’s quite a bit to this story to tell it correctly, so I’ll do it in five parts:

Approaching 2016 (this post)
The U.S. Supreme Court’s decision in Hurst v. Florida and the Florida Supreme Court’s decision on remand in Hurst v. State
The Florida’s Supreme Court’s other decisions applying Hurst
The fallout in Florida
The change in the Florida Supreme Court and the Court’s 2020 decision in Poole

Get ready. I can’t promise it’ll be weekly because you never know what will happen in this state, but I’ll plan for this series to go up on Friday’s. (Subscribe now if you’re not already so you don’t miss anything and get the full story. It’s important.)1

The Basics of Capital Sentencing

Before we dive in, I think it’ll be helpful to do a quick primer on the capital sentencing process and some terminology.

The first step is for the jury to convict the defendant of a capital crime (most often first-degree murder) in what is known as the “guilt phase.” Then the trial proceeds to what is known as the “penalty phase.”

In the penalty phase, the jury hears separate evidence related to aggravation and mitigation. Aggravating factors are factors that make the defendant seem more deserving of death—for example, that the victim was a child, that the victim was a law enforcement officer, etc. Mitigating circumstances are factors (often related to the defendants’ background or character) that make the defendant seem less deserving of death—for example, that the defendant was abused as a child, that the defendant suffers from mental illness, etc. After hearing the evidence, the jury weighs the aggravation and mitigation.

Ultimately, the jury is asked to make a sentencing recommendation of either life in prison without the possibility of parole (LWOP) or death.2 A juror is not required to recommend a sentence of death if he or she determines that the aggravation outweighs the mitigation. The juror can still vote for LWOP in what would be considered the juror exercising mercy.

Approaching 2016

As with any story, you need context before the main event. In this post, we’re looking at the history that led to the U.S. Supreme Court’s 2016 decision in Hurst v. Florida.

The Sixth Amendment

The Sixth Amendment to the U.S. Constitution states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In this story, we’re focusing on the emphasized portion, which guarantees criminal defendants a trial by jury. This right to a trial by jury is the cornerstone of our justice system.

In 2020, writing for the majority in Ramos v. Louisiana, Justice Gorsuch wrote:

[A]t the time of the Sixth Amendment’s adoption, the right to trial by jury included a right to a unanimous verdict. When the American people chose to enshrine that right in the Constitution, they weren’t suggesting fruitful topics for future cost-benefit analyses. They were seeking to ensure that their children’s children would enjoy the same hard-won liberty they enjoyed.

U.S. Supreme Court Decisions on the Sixth Amendment

The U.S. Supreme Court has issued several decisions interpreting the Sixth Amendment’s guarantee of a trial by jury and what it means for criminal defendants. Two of those decisions are important in this discussion.

Apprendi v. New Jersey (U.S. 2000)

In 2000, the Supreme Court held in Apprendi v. New Jersey that the Sixth Amendment to the U.S. Constitution guarantees criminal defendants the right to a jury finding that each element of the crime for which the defendant is charged was proven beyond a reasonable doubt. Under the Sixth Amendment, the Court held, a criminal defendant cannot be “expose[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.”

Apprendi was not a capital case but “initiated a sort of snowball effect of expanding or clarifying capital defendants’ Sixth Amendment rights, which ultimately led to Hurst v. Florida in 2016.”3

Ring v. Arizona (U.S. 2002)

Two years after Apprendi, the U.S. Supreme Court applied Apprendi to capital defendants in Ring v. Arizona. Arizona’s capital sentencing statute at the time directed the judge to hold a separate sentencing hearing after the jury convicted the defendant of first-degree murder, at which the judge would determine the presence of aggravation and mitigation and then determine the appropriate sentence.

The Court held that Arizona’s capital sentencing scheme was unconstitutional because it violated capital defendants’ rights under the Sixth Amendment, writing “that the jury, not the judge, must find the factors that warrant imposition of capital punishment.” Under Arizona’s statute at the time, the maximum sentence that could be imposed based on the jury’s findings was a sentence of life in prison because the jury did not make a finding of an aggravating factor—which is what makes a defendant eligible for death. The Court held that the finding of an aggravating factor must be made by the jury:

Because Arizona's enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” Apprendi, 530 U.S., at 494, n. 19, the Sixth Amendment requires that they be found by a jury.

(Parallel citation omitted.) Ring was a 7-2 decision with Justice Breyer concurring in the judgment and Justices O’Connor and Rehnquist dissenting. Justice Scalia’s concurrence puts a fine tip on the point of the Court’s decision:

Accordingly, whether or not the States have been erroneously coerced into the adoption of “aggravating factors,” wherever those factors exist they must be subject to the usual requirements of the common law, and to the requirement enshrined in our Constitution, in criminal cases: they must be found by the jury beyond a reasonable doubt.

Florida’s Reaction to Ring

So we’re talking about Florida’s capital sentencing statute (big picture) and the U.S. Supreme Court just overturned Arizona’s. You’re probably wondering where the connection is. Stay with me.4

Florida’s Statute When Ring Was Decided

When Ring was decided, Florida’s capital sentencing scheme looked eerily like the one in Arizona that had just been overturned. All the statute required was a jury’s majority vote by the twelve-member jury to recommend death—a vote of 7-5. The difference was that the jury at least heard evidence in the penalty phase, whereas that was left solely to the judge under the Arizona statute.5 However, Florida, like Arizona, still left to the judge "to hold a separate hearing and determine whether sufficient aggravating circumstances existed to justify imposing the death penalty," after which the judge would make a sentencing determination.

Florida Supreme Court’s Reaction to Ring v. Arizona

As you’d expect, capital defendants and inmates on Florida’s death row started raising hell. As some of them had argued even before Ring, everyone argued that Florida's statute under which they had been sentenced to death was unconstitutional under Ring.

But the Supreme Court of Florida refused to apply Ring to Florida’s capital sentencing scheme. In Bottoson v. Moore, against several Justices’ warnings that the Court was headed down the wrong path, the Supreme Court of Florida held that Florida’s capital sentencing scheme remained valid under the Sixth Amendment, despite Ring.

For years after Ring, “capital defendants in Florida unsuccessfully sought relief under Ring. They argued that Florida’s capital sentencing scheme was unconstitutional under Ring for (1) not requiring the jury to make the requisite findings required to impose a sentence of death, including each aggravating factor, and (2) requiring only a majority of the twelve-member jury to recommend death, rather than unanimity.”6 Justices on the Supreme Court of Florida kept dissenting, arguing that the defendants were right--Florida's capital sentencing scheme was unconstitutional in light of Ring.

Concurring in result only in Bottoson, Chief Justice Anstead (joined by Justices Shaw, Pariente, and Lewis) wrote:

Ring is clearly the most significant death penalty decision of the U.S. Supreme Court since the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), invalidating the death penalty schemes of virtually all states. Under our dual responsibilities to interpret state law and to enforce the U.S. Constitution, we cannot simply stand mute in the face of such a momentous decision. We are, of course, bound to apply the Supreme Court's interpretation of the requirements of the Sixth Amendment as set out in Ring to our own death penalty jurisprudence.
The United States Supreme Court has now held in Ring that its prior decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requiring findings of fact by a jury of sentencing factors that may affect the ultimate penalty and sentence imposed, does apply to death penalty cases. That holding means that juries, not judges, must make the findings of fact that determine the existence of aggravating circumstances that in turn may be used as the justification and predicate for a death sentence. This holding, of course, conflicts with our previous denial of relief to Bottoson based on our erroneous conclusion that the Supreme Court would not apply Apprendi to death penalty cases. The decision in Ring makes our error apparent.

While Chief Justice Anstead recognized that other case law existed to suggest Florida’s capital sentencing statute remained valid despite Ring, he wrote that he wasn’t so sure the majority’s reliance on those cases was sound:

While I concur in the plurality's respect for prior U.S. Supreme Court decisions upholding Florida's death penalty scheme, I must express my concerns that Florida's scheme may not comply with the Sixth Amendment as now construed in Ring.

Chief Justice Anstead explained that Florida’s capital sentencing statute was substantively similar to Arizona’s and, therefore, subject to the same demise:

Like Arizona, Florida permits a judge to determine the existence of the aggravating factors which must be found to subject a defendant to a sentence of death, and it is the judge's factual findings that are then considered and reviewed by this Court in determining whether a particular defendant's death sentence is appropriate. Thus, we appear to be left with a judicial fact-finding process that is directly contrary to the U.S. Supreme Court's holding in Ring.

“Nevertheless, capital sentencing in Florida continued; Linroy Bottoson was executed on December 9, 2002—less than six months after the Supreme Court’s decision in Ring.”7

Parts II-V coming soon.

Tracking Florida's Death Penalty

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