What happened in 2016? (Part II)

This is Part II of V explaining what happened in 2016 that disrupted Florida's capital sentencing system and led to the currently proposed legislation.

Mar 24, 2023

Welcome back, and happy Friday. This is Part II of a five-part series explaining what happened in 2016 that led to Florida’s current capital sentencing scheme and the proposed legislation pending in the Legislature this session.1

If you’re just joining, Part I can be found here. We left off in Part I with Ring v. Arizona (2002) leaving Florida in a constitutional crisis.

Hurst v. Florida (U.S. 2016)

Finally, in 2016, the U.S. Supreme Court answered the question everyone had been asking for 14 years since Ring: Is Florida’s capital sentencing statute unconstitutional under the Sixth Amendment in light of Ring? Answer: Yes.

In an 8-1 decision written by Justice Sotomayor, the U.S. Supreme Court held that Florida’s capital sentencing scheme was unconstitutional:

The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's mere recommendation is not enough.

The Court explicitly overturned its decisions in Hildwin and Spaziano “to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury's factfinding.”2 Hildwin and Spaziano were the cases upon which the Florida Supreme Court relied in holding in 2002 that Florida’s capital sentencing statute remained constitutional in light of Ring.

NOTE: The Court’s decision in Hurst v. Florida was based solely on the Sixth Amendment. Although the Eighth Amendment was briefed, the Court did not address the Eighth Amendment’s role in this discussion.

The Court specifically did not address certain collateral issues related to its decision. For instance, the Court stated that it was not addressing harmless error:

Finally, we do not reach the State's assertion that any error was harmless. See Neder v. United States, 527 U.S. 1, 18–19, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (holding that the failure to submit an uncontested element of an offense to a jury may be harmless). This Court normally leaves it to state courts to consider whether an error is harmless, and we see no reason to depart from that pattern here.

The Court remanded to the Florida Supreme Court for further proceedings.

Justice Breyer concurred in the judgment with an opinion, reiterating his opinion from Ring and stating his view that this holding should be grounded in the Eighth Amendment.

Justice Alito dissented, arguing that he would not extend Ring to Hurst because Florida’s capital sentencing scheme was sufficiently distinguishable from Arizona’s to save it. He also argued that any error was harmless beyond a reasonable doubt because, in his view, the jury would have undoubtedly found the existence of an aggravating factor beyond a reasonable doubt.

Interpreting Hurst v. Florida

When Hurst v. Florida was decided, only three states in the country had capital sentencing statutes that did not require a jury’s unanimous recommendation for death: Alabama, Delaware, and Florida.

After Hurst v. Florida, the question for the state court in each of those states was: to satisfy the post-Ring and post-Hurst mandates of the Sixth Amendment, what findings must be made by the jury instead of the judge? Essentially, the “courts chose one of two options. Option one is what [I have] reference[d] as ‘the minimalist option’: a jury need only find the existence of one aggravating factor, which is what makes the defendant eligible for the death penalty. Option two is what [I have] reference[d] as ‘the comprehensive option’: a jury must make every finding necessary to reach a sentence of death, including the relative weight of aggravating and mitigating factors.”3

Alabama and Delaware

In August 2016, while the Florida Supreme Court’s decision on remand was pending, the Delaware Supreme Court issued its decision in Rauf v. Delaware. In Rauf, the Delaware Supreme Court determined that Delaware’s capital sentencing statute violated the Sixth Amendment in light of Ring and Hurst. The Court took the comprehensive approach in interpreting the requirements after Hurst.

In September 2016, while the Florida Supreme Court’s decision on remand was still pending, the Alabama Supreme Court decided Bohannon v. State. In Bohannon, the Alabama Supreme Court took the minimalist approach, holding—based on its prior decisions—”that all the U.S. Supreme Court’s Sixth Amendment jurisprudence . . . requires [is] ‘that the jury unanimously find beyond a reasonable doubt the existence of at least one aggravating circumstance that would make the defendant eligible for a death sentence.’”4 "[T]he Court clarified that 'Hurst does not address’ the” process of the jury weighing the aggravation and mitigation “and does not ‘suggest that the jury must conduct the weighing process to satisfy the Sixth Amendment.’”5 Based on that interpretation, the Bohannon Court determined Alabama’s capital sentencing statute passed constitutional muster under the Sixth Amendment even after Hurst because “a jury, not the judge, determines by a unanimous verdict the critical finding that an aggravating circumstance exists beyond a reasonable doubt to make a defendant death-eligible.”

Hurst v. State (Fla. 2016) (“Hurst II”)

On remand, the Florida Supreme Court had new briefing and held oral argument. A vide of the oral argument on May 5, 2016, can be found here.

The Court at the time was comprised of Chief Justice Jorge Labarga (center) and Justices Barbara J. Pariente, R. Fred Lewis, Peggy A. Quince, Charles T. Canady, Ricky Polston, and James E. Perry.

In October 2016, the Court issued its decision on remand in Hurst II. Similar to how the Delaware Supreme Court interpreted Hurst, the Florida Supreme Court took the comprehensive and held:

[T]he 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.

Essentially, the Court’s holding explained that—based on Hurst v. Florida as well as the Florida’s Constitution’s separate right to a trial by jury (Article I, section 22, of the Florida Constitution) and the Eighth Amendment—every finding in the capital sentencing process must be found by a unanimous jury. This means that the twelve-member jury must unanimous find:

That each aggravating factor considered in sentencing has been proven beyond a reasonable doubt;
That the aggravation is sufficient to impose a sentence of death;
That the aggravation outweighs the mitigation; and
That death is the appropriate sentence.

NOTE: Even if the jury made a unanimous finding on the third step, it was not required to make a unanimous finding on the fourth. If a juror said yes as to #3 but not as to #4, the jury would be said to have exercised mercy.

Appropriate Relief

As to the appropriate relief, the Court held that a Florida statute, which had been passed in anticipation of Furman in the 1970s, did not apply and Hurst v. Florida did not require commuting the defendant’s sentence to a sentence of life in prison without parole:

There is no indication in the Hurst v. Florida decision that the Supreme Court intended or even anticipated that all death sentences in Florida would be commuted to life, or that death as a penalty is categorically prohibited. . . . The Supreme Court in Hurst v. Florida focused its decision on that portion of the capital sentencing process requiring a judge rather than a jury to make all the findings critical to the imposition of the death penalty. The Court did not declare the death penalty unconstitutional. Accordingly, we hold that section 775.082(2) does not require commutation to life under the holding of Hurst v. Florida, which did not invalidate death as a penalty, but invalidated only that portion of the process which had allowed the necessary factfinding to be made by the judge rather than the jury in order to impose a sentence of death.

Instead, the Court determined that the appropriate relief is to remand for a new penalty phase.

Harmless Error

As to harmless error, the Court determined—based on both U.S. Supreme Court and its own precedent—that “the error that occurred in Hurst's sentencing proceeding, in which the judge rather than the jury made all the necessary findings to impose a death sentence, is not structural error” and, instead, that “Hurst v. Florida error is capable of harmless error review.”

The Court then proceeded to analyze the harmless error standard under Florida case law. We’ll cover this further in Part III.

Conclusion

The Court concluded by vacating Hurst's death sentence and remanding for a new penalty phase.

The majority in Hurst II consisted of Chief Justice Labarga and Justices Pariente, Quince, and Lewis.

Concurring Opinion (Pariente, J.)

Justice Pariente filed a concurring opinion in which Chief Justice Labarga joined. Her opinion bolstered the majority’s conclusion that the Eighth Amendment supports the majoirty’s conclusion that the jury’s final recommendation for death must be unanimous. She concluded:

Following this Court's rejections of the Eighth Amendment argument challenging Florida's capital sentencing scheme for allowing a non-unanimous recommendation of death, the United States Supreme Court issued its decision in Hurst v. Florida, which did not address the Eighth Amendment. Therefore, there is no United States Supreme Court precedent this Court must follow asserting that the Eighth Amendment does or does not require unanimity in jury capital sentencing recommendations.
Clearly our holding requiring unanimity in the jury's ultimate recommendation is not inconsistent with Hurst v. Florida or any other decision from the United States Supreme Court. Moreover, the issue of unanimity in the final recommendation was raised before this Court in Hurst v. State, argued before the United States Supreme Court in Hurst v. Florida, raised by Hurst in his Motion requesting imposition of a life sentence, and serves to provide a complete analysis of what the Florida and United States Constitutions require before the death penalty can be constitutionally imposed.

(Footnote omitted.)

Concurring in Part and Dissenting in Part (Perry, J.)

Justice Perry concurred in part and dissented in part. He agreed with everything in the majority except the majority’s determination of the appropriate relief. In his opinion, the appropriate relief was to commute Hurst’s sentence of death to a sentence of life in prison without the possibility of parole.

As we’ll see in Parts III-IV, that route sure would’ve saved the state a lot of time and resources.

Dissenting Opinion (Canady, J.)

Justice Canady dissented, joined by Justice Polston. In their opinion, the majority went way too far out of its lane. Instead, they argued, the appropriate approach was the minimalist construction of Hurst v. Florida under which the jury must only unanimously find the existence of one aggravating factor beyond a reasonable doubt.

Further, Justice Canady argued that “the absence of a [jury] finding of an aggravator by the jury that tried Hurst was harmless beyond a reasonable doubt.” Therefore, agreeing with the majority that Hurst should not be sentenced to life, Justice Canady concluded that he “would affirm the sentence of death.”

Please feel free to post questions here or in the Chat.

Stay tuned for Parts III-V.

Tracking Florida's Death Penalty

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