It Ain’t Over ‘Til It’s Over: What’s Left of Florida’s Capital Punishment and How Death Is Still (Sort of) on the Table

by: Alexandra Hoffman

The Quandary of a Little Context…

More than ten years ago, Justice Souter in Kansas v. Marsh reaffirmed that “the death penalty must be reserved for the ‘worst of the worst.’” [1] However, as the American Civil Liberties Union aptly states, “[t]he death penalty is like a lottery, in which fairness always loses.”[2] Running concurrent to evolving legislation regarding the death penalty lies the practical systemic inequalities latent within the practice: a recent Harvard Law research study demonstrated that whether or not a criminal defendant will face capital punishment increasingly depends on the county in which the crime occurred—two percent of the nation’s 3,143 total counties accounted for sixty-three percent of the death sentences meted out in 2015.[3] Four out of the sixteen outlier counties that disproportionately imposed the death penalty between 2010 and 2015 are in Florida: Duval, Hillsborough, Miami-Dade, and Pinellas.[4] The Fair Punishment Project attributes such disparity in criminal sentencing between counties to “a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion.”[5]

Out with the old! In with the new?

It if from this problematic background—but not because of it—that on January 12, 2016, the United States Supreme Court, in Hurst v. Florida [Hurst 1], declared Florida’s death penalty statute unconstitutional as a violation of one’s Sixth Amendment right to a jury trial.[6] The capital scheme violated the Sixth Amendment because the jury’s decision about whether the defendant should receive death remained solely a “recommendation,” whereby the judge had the final say on whether the defendant got life or death.[7] The result of this decision? A quickly revised statute in full force by March 2016.[8]

Marking the second complete overhaul of the state’s capital punishment practice, the Florida Supreme Court found the state’s revised capital sentencing statute unconstitutional on October 14, 2016.[9] In rare form, the court released two opinions on Friday—Hurst v. Florida [Hurst 2] and Perry v. Florida—vacating Timothy Lee Hurst’s death sentence, remanding his case for a new sentencing hearing, and declaring the revised March 2016 Florida capital sentencing statute unconstitutional as a violation of the Sixth and Eighth Amendments.[10] The unconstitutional statute allowed for the imposition of a death sentence based on the agreement of ten out of twelve jurors.[11] Florida and Alabama, prior to Hurst 2, were the only two states that permitted less than unanimous death sentences.[12] The Florida Supreme Court now requires a unanimous verdict of death based on Florida law—the Florida Constitution and jurisprudence.[13] The fact that the Florida Supreme Court codified its decision from Florida law, rather than from United States Constitutional law, is of separate importance because such independent state grounds will work towards preventing the United States Supreme Court from granting certiorari.[14] Of particular note, the court wrote “[w]hen all jurors must agree to a recommendation of death, their collective voice will be heard and will inform the final recommendation . . .” whereby, “the voices of minority jurors cannot simply be disregarded by the majority . . . .”[15]

So where are we now?

 The Florida Supreme Court did not declare the death penalty unconstitutional with Hurst 2, meaning another capital sentencing statute is likely to replace the March 2016 revision.[16] However, with no constitutional capital sentencing statute enacted, it is unclear how Florida prosecutors can actively proceed with their current cases.[17] More importantly, what is going to happen to the 386 inmates who have been sentenced to death and are currently waiting out execution?[18] Will these inmates have their sentences commuted to life without parole (LWOP), like what happened after Furman v. Georgia?[19] Or are Hurst 1, Hurst 2, and Perry not retroactive? Meaning, the inmates who have already been sentenced to die will be executed consistent with Teague v. Lane, even though the schemes under which they were sentenced are unconstitutional.[20] Michael Lambrix, one of the 386 inmates on death row, was the first to challenge his sentence, which was a product of the now defunct Florida capital sentencing scheme pre-Hurst 1.[21] The result of Lambrix’s challenge could reveal the full effect of these recent supreme court cases.

As of January 2016, seventy-four percent of Florida’s inmates on death row were sentenced based on non-unanimous jury recommendations.[22] Thus, close to three-quarters of Florida death row inmates’ sentences are undoubtedly called into question by the recent Hurst opinions; however, if the Florida Supreme Court were to truly heed the words of Hurst 1, new sentencing hearings should be granted for even the unanimous death verdicts (if these sentences are not automatically commuted to LWOP). The United States Supreme Court found that Florida’s capital sentencing scheme was unconstitutional because, analogically, the monkey was not on their backs.[23] In other words, the jurors did not feel the weight of the burden when deciding whether or not to impose a death sentence because the jurors knew that their decision was only a “recommendation,” and not the last word.[24] In theory, if the jurors knew that their decision would have directly led to the defendant’s death, the jury deliberation may have been different, and some jurors may not have voted for death, which consequently calls into question the durability of the then-unanimous decisions pre-Hurst 1. While this might seem like an extreme measure at odds with reasonable standards of judicial efficiency, how much fairness is too much fairness when talking about death? The adage—death is different—extends at least as far back as Powell v. Alabama.[25]

So where are we now? It is unclear. The Florida Supreme Court has already halted efforts by officials to move forward with their capital cases in spite of such uncertainty—the court granted Patrick Albert Evans’ request to stop Judge Joseph Bulone from proceeding to the punishment-phase of his trial scheduled to start October 31, 2016.[26] The law will likely remain unsettled until after election season is over and the Florida legislature is back in session, but for now, 386 people eagerly await what will be become of an outdated practice that is (hopefully) on its way out.

[1] Kansas v. Marsh, 548 U.S. 163, 206 (2006) (citations omitted).

[2]The Death Penalty: Questions and Answers, American Civil Liberties Union (Oct. 26, 2016)

[3] Fair Punishment Project, Too Broken to Fix: Part II, Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and Criminal Justice Institute (Sept. 2016); see also Death Penalty Use in 2015, Death Penalty Information Center,

[4] Fair Punishment Project, Too Broken to Fix: Part II, Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and Criminal Justice Institute (Sept. 2016)

[5] Id.

[6] Mark Berman, Florida death penalty officially revamped after Supreme Court struck it down, Washington Post (Mar. 7, 2016),

[7] Id.

[8] Id; Hurst v. Florida, 136 S.Ct. 616, 622 [hereafter Hurst 1] (finding Florida’s death penalty statute unconstitutional under the Sixth Amendment, where the jury makes a recommendation to the judge and the judge makes the final determination about whether or not to impose the death penalty).

[9] Dara Kam, Lawmakers to Again Deal With Death Penalty Sentencing, Daily Business Law Review (Oct. 19, 2016),

[10] Hurst v. Florida, No. SC12-1947 (Fla. Oct. 14, 2016) [hereafter Hurst 2]; Perry v. Florida, No. SC16-547, (Fla. Oct. 14, 2016).

[11] Perry v. Florida, No. SC16-547 at 9.

[12] Emily Bazelon, Where the Death Penalty Still Lives, New York Times Magazine (Aug. 13, 2016),

[13] Hurst 2, No. SC12-1947 at 18.

[14] Id. at 23-29.

[15] Id. at 40-41.

[16] Id. at 49.

[17] Perry v. Florida, Motion for Clarification, No: SC16-547 (Fla. Oct. 20, 2016), motionforclarification.pdf.

[18] Michael Auslen, Death Penalty Ruling Could Mean New Sentencing for 386 Murderers, Miami Herald (Oct. 18, 2016),

[19] See generally Furman v. Georgia, 408 U.S. 238 (1972).

[20] Teague v. Lane, 489 U.S. 288, 308 (1989) (holding that an individual may not apply a new rule of law in a federal habeas corpus proceeding if the law was established after the individual’s conviction was already finalized).

[21] Noreen Marcus, Justices Issue Stay After Debate Over Death Penalty Ruling, Daily Business Law Review (Feb. 2, 2016)

[22] Report Finds 74% of Florida Death Row Inmates Had Non-Unanimous Death Verdicts, Death Penalty Information (Jan. 2016),

[23] Adam Liptak, Supreme Court Strikes Down Part of Death Penalty, The New York Times (Jan 12, 2016),

[24] See id.

[25] Powell v. Alabama, 287 U.S. 45, 71 (1932) (recognizing the finality of death and the need for greater scrutiny when a defendant is charged with a crime carrying capital punishment).

[26] Dara Kam, Supreme Court halts death penalty case, The News Service of Florida (Oct. 28, 2016),

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