What happened in 2016? (Part V)
This is Part V 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 the final part 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.
If you’re just joining, here is the rest of the series:
Part I can be found here.
Part II can be found here.
Part III can be found here.
Part IV can be found here.
We left off in Part IV with the Florida Legislature implementing a new statute that comported with the requirements of Hurst II1 and the Supreme Court of Florida being bombarded with requests from those on Florida’s death row for relief after Hurst, which resulted in numerous resentencing proceedings, some of which remain pending.
Change in the Courts
Just after the dust settled in Hurst, both the U.S. Supreme Court (USSC) and Florida Supreme Court (FSC) had a wave of change.
U.S. Supreme Court
When Hurst v. Florida was decided, the USSC was comprised “of Chief Justice Roberts and Justices Sotomayor, Scalia, Kennedy, Thomas, Ginsburg, Kagan, Breyer, and Alito.” Shortly after Hurst, change started:
Almost exactly one month after Hurst v. Florida, though, Justice Antonin Scalia unexpectedly passed away. He was replaced by Justice Neil Gorsuch. Then, in the summer of 2018, Justice Kennedy, who was notorious for being the Supreme Court’s swing vote on controversial issues, retired. He was replaced by Justice Kavanaugh.2
Decisions from the “new” Supreme Court suggest a new outlook on the death penalty. For instance, in Bucklew v. Precythe in 2019, the USSC, in a majority decision written by Justice Gorsuch, “returned to the history and language of the Eighth Amendment in reiterating the constitutionality of capital punishment. Denying relief to Bucklew, the majority bluntly reaffirmed that ‘the Eighth Amendment does not guarantee a prisoner a painless death.’”3
Florida Supreme Court
Meanwhile, Florida was also experiencing change. “In November 2018, Florida welcomed a new Governor after a contested election. Republican Governor [Ron] DeSantis replaced Republican Governor [Rick] Scott.”4
Then, in January 2019, Justices Barbara J. Pariente, R. Fred Lewis, and Peggy A. Quince retired due to the mandatory retirement age in the Florida Constitution. Governor DeSantis appointed their replacements: Robert Luck, Barbara Lagoa, and Carlos Muniz.
Shortly after their appointments, Justices Luck and Lagoa were appointed by President Trump to the U.S. Court of Appeals for the Eleventh Circuit. They were then replaced by Justices John D. Couriel and Jamie Grosshans.
Later, Justice Lawson retired. He was replaced by Justice Renatha Franklin.
State v. Poole (2020)
Before Justices Couriel and Grosshans joined the Court, on January 23, 2020, the “new” Supreme Court of Florida decided State v. Poole. At that time, the only justice who remained on the Court from the majority in Hurst II was Justice Jorge Labarga. Justices Polston and Canady had also been on the Court for Hurst II but were in the dissent.
In State v. Poole, Justice Canady’s dissent from Hurst II became the majority. In Poole, the Court overturned Hurst II and held that the only finding the jury must make to satisfy the Sixth Amendment and, therefore, Hurst v. Florida is that the state proved one aggravating factor beyond a reasonable doubt. The rest of the Hurst II holding was wrongly decided, the Court held.
After Poole, the State of Florida argued that the resentencing proceedings that had been granted in 2016-17 based on Hurst II should be canceled and death sentences reinstated due to Poole. The Florida Supreme Court ruled against the state on that issue in State v. Jackson (Nov. 2020), determining that sentences of death that had already been vacated could not be reinstated:
The State. . . attempts to have Jackson's sentences “retroactively reinstated,” based on decisional law (i.e., Poole) that has completely “undercut the premise upon which,” Jackson's sentences were vacated. But the order vacating Jackson's sentences was . . . final at the time Poole was decided . . . .
Further:
Jackson analogously stands in the same position as any other defendant who has been convicted of first-degree murder but who has not yet been sentenced . . . . Jackson's sentences cannot be retroactively reinstated.
(Citations omitted.) It was suspected that the Florida Legislature would amend the capital sentencing statute in light of Poole, but that didn’t happen. As Part IV explained, Florida retained unanimity for several years and continued leading the country in death sentences. It wasn’t until this legislative session that the Legislature went down the path of non-unanimity in reaction to the Parkland trial.
McKinney v. Arizona (2020)
About a month after Poole, on February 25, 2020, the USSC decided McKinney v. Arizona.
McKinney had been granted a resentencing by a jury after the federal court determined that the sentencing judge “failed to properly consider” certain mitigating factors. Instead, the Arizona Supreme Court determined it could reweigh the aggravation and mitigation on its own.
The issue: whether the Arizona Supreme Court erred in reweighing the aggravating and mitigating circumstances itself and, instead, McKinney must be resentenced by a jury
In the Court’s 5-4 decision authored by Justice Kavanaugh, the Court held that there was no error.
McKinney essentially provided backup for the FSC’s decision in Poole, as the Court stated:
Under Ring and Hurst, a jury must find the aggravating circumstance that makes the defendant death eligible. But importantly, in a capital sentencing proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge) is not constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range.
Justice Ginsburg—joined by Justices Breyer, Sotomayor, and Kagan—dissented, writing that she “would hold McKinney’s death sentences unconstitutional under Ring,” which she argued should apply to McKinney’s case because it was at the Court on direct review.
As in Poole, the dissent and majority had flip-flopped since Hurst.
Summary
Essentially, the change in the USSC and FSC after Hurst II and its progeny instituted the unraveling of the changes effectuated by Hurst v. Florida and Hurst II. As a result, Poole opened the door to the legislation that is pending now in the Florida Legislature. However, Hurst v. Florida remains in the background as the constitutional standard. Also, the role of the Eighth Amendment in this discussion has not been fully clarified and could pose issues to the legislation, as it would make Florida an extreme outlier as to the appropriate standard for capital punishment.
My law review article published by the University of Miami Law Review online publication has a chart showing the changes between the statutes.
(Footnotes omitted.) This is a quote from the law review article referenced in footnote 1.
(Footnotes omitted.) This is a quote from the law review article referenced in footnote 1.
(Footnotes omitted.) This is a quote from the law review article referenced in footnote 1.