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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…

Miami judge declares Florida's death-penalty law is unconstitutional

Florida's death chamber
Florida's death chamber
A Miami-Dade judge has ruled that Florida's death penalty is unconstitutional because jurors are not required to agree unanimously on execution - a ruling that will add to the ongoing legal debate over Florida's capital punishment system.

Circuit Judge Milton Hirsch on Monday issued the ruling in the case of Karon Gaiter, who is awaiting trial for 1st-degree murder.

Hirsch wrote that Florida's recently enacted "super majority" system - 10 of 12 juror votes are needed to impose execution as punishment for murder - goes against the long-time sanctity of unanimous verdicts in the U.S. justice system.

"A decedent cannot be more or less dead. An expectant mother cannot be more or less pregnant," he wrote. "And a jury cannot be more or less unanimous. Every verdict in every criminal case in Florida requires the concurrence, not of some, not of most, but of all jurors - every single one of them."

Hirsch's order comes with Florida's controversial death-penalty law remains very much in flux.

In January, in the case of Timothy Lee Hurst, the U.S. Supreme Court declared the state's death sentencing system unconstitutional because it gave too little power to juries. For decades, jurors only issued majority recommendations, with judges ultimately imposing the death penalty.

The high court, however, did not rule on the unanimity question. Except for Alabama and Florida, all other states that have the death penalty require a unanimous jury verdict to impose the death sentence.

Last week, the Florida Supreme Court heard oral arguments in the Hurst case, with critics of the law arguing that all 390 death row inmates should get life sentences because they were sentenced under a flawed system.

After the Hurst case was decided in January, Florida lawmakers were forced to fix the death-penalty sentencing scheme. Florida's new law requires juries to unanimously vote for every reason, known as aggravating factors, that a defendant might merit a death sentence. Whether to actually impose the death sentence requires 10 of 12 jurors.

"All of these changes inure to the benefit of the defendant," Assistant State Attorney Penny Brill wrote in a motion in the Gaiter case earlier this year. "These requirements render Florida's system constitutional under the United States Supreme Court's precedents."

Judge Hirsch, in his order, said the fixes don't matter.

"Arithmetically the difference between 12 and 10 is slight," Hirsch wrote. "But the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice."

Source: Miami Herald, May 9, 2016

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