What happens now?
Here's the prediction of what's to come with the new capital sentencing legislation now in effect and the capital sex crime legislation around the corner.
Florida officially has the lowest standard in the country for imposing a sentence of death. The law signed yesterday goes into effect immediately.
Any day now, Florida will also have the broadest capital punishment in the country with Gov. DeSantis’s approval of the capital sex crime legislation. So far, it does not appear that bill has been sent to the Governor, but it is likely to be soon.
So what happens now?
Litigation Related to New Legislation
Now that it’s passed, the legislation now starts its path “across the street” to the Florida Supreme Court, which will inevitably review the constitutionality of the new legislation—in some way or another. The path the legislation will take before it gets there is unclear.
There will undoubtedly be litigation about the constitutionality of this new statute and its application, and it is starting immediately.
I predict another constitutional crisis. Dare I say “Hurst 2.0”?
Issues to be Litigated
Constitutionality
The primary issue in the post-legislation litigation will be whether the new statute is constitutional. This is likely to be litigated on several grounds, including the Sixth Amendment and the Eighth Amendment to the prosecution. In addition, it is likely we will see discussion of Florida’s separate right to jury trial under article I, section 22, of the Florida Constitution and other constitutional provisions.
Application
Another issue that will likely be litigated is how the new statute applies. Does the statute apply to pending prosecutions? Does the statute apply to pending resentencing proceedings in which the defendant was granted a new sentencing proceeding after Hurst? It is also likely that we see litigation about whether the resentencing proceeding is even required, similar to how the State tried to undo the resentencing proceedings after the Supreme Court of Florida decided Poole.
We'll be following, but I also recommend following
for coverage on the briefing, especially once the issue gets to the Court.How will the issue get to the Court?
The litigation on these issues has already started. Across the state, Hurst resentencing proceedings are scheduled—some of which are already underway. The issues are already popping up in those cases. To be clear, there are still over 50 Hurst resentencing proceedings that remain pending. New capital prosecutions also continue.
At some point, the issue will make its way to the Florida Supreme Court. This could happen in a number of ways.
How the Court addresses the issue and in which case will likely depend on timing and the Court. As the Hurst series explained (available here), the Court designated several cases as lead cases on various issues among the hundreds of cases that were filed.
Jury Instructions & Verdict Form
The standard jury instructions and verdict form will have to be updated to remove the requirements that were incorporated under the 2017 statute. The full standard jury instructions and verdict form can be found here.
Jury Instructions
A statement in the current standard jury instructions for the penalty phase shows how this law will change the jury sentencing process:
The red has changed to 8-4. The highlighted findings are no longer required.
Verdict Form
Similarly, the verdict form will look much different. Parts A-C of the current verdict form are as follows:
Under the new statute, parts B and C (below the red line) go away. Here are parts D and E of the current verdict form:
Part D (above the red line) goes away under the new statute. Likewise, in Part E, the highlighted language goes away and the underlined instances of “unanimous” will change to the 8-4 requirement.
Prison Staffing
As discussed in Part III of the Prison Tour, Florida’s prisons—including UCI, where Florida’s male death row population is housed—are understaffed as it is.
The inevitable increase in death sentences caused by this legislation will likely exacerbate the staffing issues at UCI and perhaps FSP.