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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Florida House Approves Ten-Juror Death Penalty

Florida's death chamber
Florida's death chamber
The Florida House is moving forward with a new capital sentencing scheme after the U.S. Supreme Court struck down the existing system just over a month ago. But even with last minute changes, lawmakers are hesitant to completely embrace unanimity.

Under current Florida law, juries in capital cases are supposed to issue an advisory sentence. Rep. Ross Spano (R-Dover) explains it's the next step the Supreme Court took issue with in Hurst v. Florida.

"If the judge sentences the defendant to death the judge must make written findings as to which aggravating circumstances he or she finds that enhance the penalty," Spano says. "It is this issue allowing the judge to find the elements of a crime that enhance the penalty to capital punishment that the court found unconstitutional in Hurst."

Shortly after that ruling, the gears of state began turning in Florida's capital. The state Supreme Court is weighing what the case means for existing death row inmates, and the Legislature is developing a new sentencing system for capital cases. The key sticking point between the chambers is unanimity.

Both agree on unanimity in assigning guilt.

Both agree on unanimity in finding aggravating factors in the penalty phase.

But where they disagree is the final step - recommendation of the death penalty. The House doesn't believe unanimity should be necessary.

"The jury may recommend a sentence of death or life imprisonment without the possibility of parole," Spano explains. "However, to recommend a sentence of death they must do so after weighing mitigating circumstances, and a minimum of 9 jurors must concur in the recommendation. If fewer than nine jurors concur a sentence of life imprisonment without the possibility of parole will be the jury's recommendation to the court."

And in service of that argument, Spano and others turn to cases like Ted Bundy. The recommendation of death there was 10-2. Meanwhile, supporters of sticking with unanimity throughout the process point out the higher requirement often means juries just end up deliberating longer. And in Bundy's case, even if the jury didn't make it to 12 votes, he'd still be spending life in prison.

But Rep. Daryl Rouson (D-St. Petersburg) says there's another reason for raising the bar on capital punishment.

"Florida leads the nation in death row exonerations - leads the nation," Rouson says. "Wouldn't you think it would be an appropriate step to require unanimity at all levels so that persons are certain and not divided on the issue of the death penalty."

Wednesday, the House budged - but not by much. Rep. Charles McBurney (R-Jacksonville) offered an amendment moving from 9 votes to 10 before recommending the death penalty.

"The amendment changes the jury sentencing recommendation from 9-3 to 10-2," McBurney says. "The jury would still have to find unanimously that the aggravating factor exists, but it would require at least 10 jurors to give a recommendation of death."

"Likewise if less than 10 jurors determine the defendant should be sentenced to death," he goes on, "the jury's recommendation to the court will be a sentence of life imprisonment without the possibility of parole."

Rep. Joe Geller (D-Aventura) summed up how many supporters of unanimity feel.

"Chances are when this comes up for debate on the full bill tomorrow, I'm probably going to be voting down," Geller says. "But on this amendment I would urge everyone - whatever side of the aisle, and whatever side of this debate you're on - to support representative McBurney's amendment."

Thursday the House took up and approved the measure with McBurney's changes attached. It now heads to the Senate.

Source: WFSU news, Feb. 19, 2016

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