Florida’s death penalty has been in a state of limbo this year.
Executions are on hold, judges are postponing death penalty cases, and defense lawyers are seeking additional reviews after the U.S. Supreme Court’s decision in January that struck down Florida's death penalty sentencing process.
Supreme Court justices ruled that Florida gave too much power to judges, instead of juries, in deciding whether defendants should be executed. But the 8-1 ruling also created uncertainty by failing to address whether jury recommendations for death sentences should be unanimous.
The focus is now on the Florida Supreme Court.
"Defense lawyers are trying to push the cases off, waiting for the court, and in some instances judges are going along with it," said Bernie McCabe, the state attorney in the 6th Judicial Circuit in Pasco and Pinellas counties. "And if they don't go along with it, defense lawyers file other motions claiming other stuff, to try to push it. So the frustration is we're not getting the cases to trial that ought to be tried. And, unlike fine wine, my cases don't get better with age."
Of nearly three dozen states that have the death penalty, Florida is one of only three states — including Delaware and Alabama — that do not require unanimous jury recommendations for death. Delaware's death penalty is also in flux. The Delaware Supreme Court in August decided that the state's death-penalty process, similar to Florida's, was unconstitutional. In contrast to Florida, Delaware's last execution was in 2012.
The U.S. Supreme Court's decision in a case known as Hurst v. Florida dealt with the sentencing phase of death-penalty cases after defendants are found guilty, and it focused on "aggravating circumstances" that must be determined before defendants can be sentenced to death. The ruling cemented a 2002 U.S. Supreme Court decision, in a case known as Ring v. Arizona, requiring that determinations of such aggravating circumstances must be made by juries, not judges.
Under Florida's old law, jurors by a simple majority could recommend the death penalty. Judges would then make findings of fact that "sufficient" aggravating factors, not outweighed by mitigating circumstances, existed for the death sentence to be imposed.
That system was an unconstitutional violation of the Sixth Amendment right to trial by jury, the U.S. Supreme Court decided in an 8-1 ruling.
After the Hurst decision, Florida justices indefinitely postponed executions that had been scheduled to take place in February and March. The decision also set off a scramble by lawmakers to revise the sentencing system.
Florida's new law — crafted by the Republican-controlled Legislature during the session that ended in March — requires juries to unanimously determine "the existence of at least one aggravating factor" before defendants can be eligible for death sentences. The law also requires at least 10 jurors to recommend the death penalty in order for the sentence to be imposed, a departure from the old law, which required a simple majority of jurors.
After hearing arguments in dozens of cases since January, the Florida Supreme Court is considering whether the Hurst decision applies to defendants whose death sentences were handed down before the January ruling.
One of the most highly anticipated decisions involves the case of Larry Darnell Perry, who was convicted in the 2013 murder of his infant son.
Perry's case hinges on whether the new law should apply to defendants whose prosecutions were underway when the new law went into effect. While Perry's lawyer, J. Edwin Mills, argued that the new law should not apply in his client's case, other defense lawyers are split on the issue. Mills contends his client should receive a life sentence.
Arguments in the Perry case also focused on the new law, which circuit judges in Tampa and Miami have ruled is unconstitutional because it does not require unanimous recommendations from juries.
Lawmakers adopted the 10-2 recommendation at the urging of prosecutors, who objected to the notion of requiring unanimity.
The issues awaiting Florida Supreme Court decisions will have a far-reaching impact, affecting inmates already on Death Row as well as defendants whose cases are in progress or have not yet reached the trial stage.