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A Temporary End to the Death Penalty in Florida

The Florida Supreme Court ruled that the state’s death penalty sentencing procedures were unconstitutional, effectively ending the death penalty in the state—for now.

By Kate Wheeling


The Florida Supreme Court building in Tallahassee, Florida. (Photo: Wikimedia Commons)

On Friday, the Florida Supreme Court ruled the state’s death penalty sentencing practices unconstitutional. Previously, a majority jury, rather than a unanimous one, had been able to sentence a person to death.

The Florida statute in question is relatively new. It was put in place earlier this year after the United States Supreme Court found that Florida’sold sentencing procedure, in which a judge imposed the death penalty rather than the jury, was unconstitutional.

Research has shown that, when judges make the call, defendants are more likely to receive death sentences. A 2014 working paper found that, for capital cases in Delaware, when it was left up to juries only 20 percent of cases resulted in death sentences, but when judges made the decision, they handed down death sentences 53 percent of the time. Of course, jury-based sentencing practices are not perfect. As Tom Jacobsreported in Pacific Standard last year, jurors can be biased, and at least one study found that they can make critical sentencing decisions based on superficial factors:

Newly published research suggests who lives and who dies is determined, to a significant degree, by gut-level instinct. It finds the decision to impose a death sentence is based in part on a completely irrational construct: Whether the convict has what is perceived as a trustworthy face.

Requiring a unanimous jury decision for a death sentence, rather than Florida’s former 10–2 majority requirement, could serve as a small buffer to such biases. Meanwhile, public support for the practice is falling. Today, less than half of Americans, 49 percent, support the death penalty for convicted killers — the lowest it’s been since the 1970s, according to the Pew Research Center. (Support for capital punishment peaked at 80 percent in the 1990s.)

Public policy and popular opinion appear to be moving in lockstep away from putting prisoners to death. Judge sentencing in capital cases requires at least that the jury recommends a death sentence in the majority of states. Only Alabama and Delaware still allow judges to override juries’ decisions, and impose or revoke a death sentence. (Florida dropped judge override along with judge sentencing after the Supreme Court decision earlier this year.) In Delaware, judges are more likely to use this discretionary tool to replace a death sentence with a life sentence. But in Alabama, the opposite is true, according to the Equal Justice Initiative:

Alabama is the only state where judges routinely override jury verdicts of life to impose capital punishment. Since 1976, Alabama judges have overridden jury verdicts 112 times. Although judges have authority to override life or death verdicts, in 91 percent of overrides elected judges have overruled jury verdicts of life to impose the death penalty.

Nearly 20 percent of the people currently on Alabama’s death row were sentenced to death through judicial override. Judge override is the primary reason why Alabama has the highest per capita death sentencing rate in the country.

Just 14 of the 31 states that allow the death penalty actually imposed one in 2015, according to a recent report from the Fair Punishment Project. Of the 16 counties nationwide in which more than five death sentences were issued between 2010 and 2015, four of them were in Florida. For now, the fate of Florida’s nearly 400 death row inmates—the second largest death row population in the country—remains undecided.

Friday’s Supreme Court decision effectively ended the death penalty in Florida — at least until the state rewrites its sentencing policies.