What happened in 2016? (Part III)
This is Part III of V explaining what happened in 2016 that disrupted Florida's capital sentencing system and led to the currently proposed legislation.
Welcome back. This is Part III 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. The latest on the capital sentencing legislation can be found here.
If you’re just joining, Part I can be found here. Part II can be found here.
We left off in Part II with the Supreme Court of Florida’s decision in Hurst II on remand from the U.S. Supreme Court’s decision in Hurst v. Florida, which held that Florida’s capital sentencing scheme was unconstitutional under the Sixth Amendment to the U.S. Constitution.
Perry v. State (Fla. 2016)
Before we move past the day of Hurst II, there’s one more piece to cover.
While the Florida Supreme Court’s decision in Hurst II was pending, the Legislature enacted a revised capital sentencing statute that used a 10-2 jury vote threshold (up from the prior 7-5). (Note this is the current threshold in Alabama.)
In Perry v. State, defendants who had been indicted and were pending prosecutions challenged the new law. On the same day the Court issued its decision in Hurst II, the Court issued its decision in Perry. Based on the Court’s decision in Hurst II, the Court struck down the new statute because it failed to require a jury’s unanimous recommendation for death:
[T]he Act cannot be applied constitutionally to pending prosecutions because the Act does not require unanimity in the jury’s final recommendation as to whether the defendant should be sentenced to death
NOTE: It’s interesting that the Legislature determined in 2016 that 10-2 was the appropriate threshold but it has now determined—seven years later—that 8-4 is the appropriate threshold.
What Hurst Didn’t Say
While Hurst finally answered a question that had been pending for years, it left a lot of other questions unanswered.
Harmless Error
First, the U.S. Supreme Court (USSC) explicitly left for the Florida Supreme Court (FSC) to determine whether a Hurst error is capable of harmless error review:
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 FSC addressed this issue in Hurst II and then further clarified its analysis in Davis v. State. Between these two cases, the Court essentially held that a Hurst error is harmless beyond a reasonable doubt and, therefore, the inmate is not entitled to relief if the original jury—even operating under Florida’s prior, unconstitutional capital sentencing scheme—voted unanimously to recommend a sentence of death.
If, however, the original jury did not vote unanimously to recommend a sentence of death, then the Court determined that the inmate was entitled to a new sentencing procedure under Florida’s new capital sentencing framework (as prescribed by Hurst II).
Retroactivity
For most of the ~400 inmates on Florida’s death row when Hurst was decided, a crucial question was whether Hurst applied retroactively to their case.1
A few months after Hurst II, in December 2016, the Court addressed retroactivity in two decisions issued the same day: Asay v. State and Mosley v. State.
Asay v. State (2016)
In Asay, the FSC “applied its state-specific retroactivity standard from Witt [v. State] and held Hurst did not apply retroactively to Asay’s sentence of death, which became final in 1991—before Ring. Essentially, the Court reasoned that it had not held Ring retroactive, and since Hurst was a product of Ring, the right announced in Hurst did not apply to any cases decided before Ring.”2
The FSC found that “the purpose of the rule—protecting the Sixth Amendment’s right to trial by jury—weighed in favor of retroactivity. Next, as to reliance on the old rule, which the Court found to be the ‘most important factor [of the retroactivity analysis],’ the Court explained it had relied heavily on pre-Ring jurisprudence. Such reliance, the Court determined, weighed ‘heavily against’ retroactively applying Hurst to pre-Ring cases.”3
Further, “as to the effect on the administration of justice, the Court explained that 386 defendants were awaiting execution on Florida’s death row when Asay was decided. . . . Due to the large number of defendants on death row, the Court determined that the effect retroactivity would have on the effective administration of justice weighed heavily against applying Hurst retroactively to all defendants on death row. In other words, the Court determined that granting retroactivity to all defendants on Florida’s death row at the time would have a significant effect on the administration of justice. Thus, the Court held, because the source of the right announced in Hurst was a result of Ring, which did not apply retroactively, the furthest “back” the right could extend was the day Ring was decided,” which was June 24, 2002.4
Thus, defendants with sentences of death that became final before June 24, 2002, did not receive the retroactive benefit of Hurst.
For more on Asay, see this article posted by Harvard Law Review.
Mosley v. State (2016)
In Mosley, the FSC “addressed the other half of the question: what about sentences that became final after Ring? There, the Court relied on two theories to hold that Hurst applied retroactively to Mosley’s sentence, which had become final after . . . Ring.”5
Fundamental Fairness
“First, based on principles of fundamental fairness, the Court determined Hurst applied retroactively to Mosley because he had ‘raised a Ring claim at his first opportunity and was then rejected at every turn . . . .’ In other words, Mosley had preserved the Hurst argument and was, therefore, entitled to the benefit of the new rule.”6
NOTE: This did not apply to all defendants who had raised a Hurst claim—only those who raised a Hurst claim and their sentence of death became final after Ring. As I explained about Louis Gaskin (whose execution is scheduled for April 12), Gaskin raised Ring- and Hurst-type claims several times, including even before Ring. But he was denied relief because his sentence became final before Ring. This issue is at the forefront of his warrant litigation. For more, see
:
Retroactivity
Second, the Court applied its state-specific retroactivity standard to Mosley’s case. “[T]he analysis turned on the third prong of the Witt standard, which the Court determined ‘turn[ed] entirely on whether the new rule, here Hurst v. Florida, is a “development of fundamental significance.”’ To constitute a ‘development of fundamental significance,’ the Court explained, ‘the change in law must “place beyond the authority of the state the power to regulate certain conduct or impose certain penalties,” or alternatively, be “of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall and Linkletter.”’” As to Hurst, the Could concluded: ‘Hurst v. Florida, as interpreted by this Court in Hurst, falls within the category of cases that are of “sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test” from Stovall and Linkletter . . . .’”7
“Therefore, the Court concluded Hurst applies retroactively to sentences . . . that became final after Ring because, in essence, those sentences were unconstitutional all along”8:
Defendants who were sentenced to death under Florida’s former, unconstitutional capital sentencing scheme after Ring should not suffer due to the United States Supreme Court’s fourteen-year delay in applying Ring to Florida. In other words, defendants who were sentenced to death based on a statute that was actually rendered unconstitutional by Ring should not be penalized for the United States Supreme Court’s delay in explicitly making this determination. Considerations of fairness and uniformity make it very “difficult to justify depriving a person of his liberty or his life, under process no longer considered acceptable and no longer applied to indistinguishable cases.
“Applying Hurst retroactively to Mosley’s sentence, the Court did not make clear which of the two theories was the Court’s primary reason for doing so. Nor did the Court ever clarify which theory was the Court’s primary reasoning for applying Hurst retroactively to post-Ring sentences in any other case. However, reading the case law holistically, it appears that the latter theory was the Court’s primary reasoning for its retroactivity decision because it is the reason mentioned in all of the cases; whereas, the former is only mentioned in some cases.”9
Hitchcock v. State (2017)
At first, Asay and Mosley seemed to answer the question of Hurst retroactivity. “But upon further review, it became clear that Asay and Mosley were incomplete. They addressed only the Sixth Amendment rights at issue in Hurst v. Florida and Hurst II.”10
They did not address the retroactivity of the Eighth Amendment rights discussed in Hurst II. Inevitably, defendants raised this issue. All of the defendants that had been denied Hurst relief based on Asay then raised a second claim—a “Hitchcock claim.”
“Almost a year after Asay and Mosley, the Supreme Court of Florida addressed this lingering question in Hitchcock v. State.”11 “Relying on Asay, the Court held that the Eighth Amendment rights announced in Hurst II—like the Sixth Amendment rights—did not apply retroactively to defendants whose sentences of death became final before Ring. In doing so, the Court recycled its Witt analysis from Asay to deny retroactivity of the Eighth Amendment rights announced in Hurst II to sentences that became final before Ring—which, of course, was a decision based on the Sixth Amendment.”12
For more on Hitchcock, see this article from DPIC and this article from the ABA.
Retroactivity in Numbers
In “Asay and Mosley, the Supreme Court of Florida ‘split the baby’ on retroactivity and drew a bright line on a figurative calendar through June 24, 2002, the day the U.S. Supreme Court decided Ring. On one side of the line were sentences of death that became final before that date, to which Hurst did not apply retroactively.”13
“On the other side of the line were sentences of death that became final after that day, to which Hurst did apply retroactively. Those defendants were eligible for Hurst relief if they could prove that the Hurst error in their case was not harmless beyond a reasonable doubt.”14
“In practical terms, these decisions split Florida death row almost in half, making approximately 55.4% of defendants on Florida’s death row at the time eligible for Hurst relief—subject to harmless error review—because either Hurst applied retroactively to their sentences (44.6%), or their sentences had not yet become final (10.8%). The other 44.6% of defendants were not eligible for Hurst relief because their sentences were too old for Hurst to apply retroactively to their sentences.”15
The Result
The result of Hurst was that almost 100 inmates of the 400 on Florida’s death row at the time received new sentencing proceedings, some of which remain pending today.
My recent law review article takes a deep dive into the decisions surrounding the retroactivity of Ring v. Arizona (2002) and Hurst v. Florida (2016). For more on this topic, read that article here.
(Footnotes omitted.) This is a quote from the law review article referenced in FN1 above. The data from this quote comes from my law review article published in 2020 by the University of Miami Law Review. Hannah Gorman and Margot Ravenscroft also published a similar law review article on this data.