Capital Punishment in the United States Explained

In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
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Orlando senator files bill to bring back death penalty

Hoping to reinstate the death penalty in Florida, a Democratic state senator from Orlando filed a bill Friday that would require juries to be unanimous in condemning a killer.

If approved, the measure (SB 280) by Sen. Randolph Bracy could end delayed trials and confusion over a Florida Supreme Court ruling in October that struck down the state's capital punishment law.

Lawmakers last year tried to fix the death penalty law by requiring a 10-2 jury vote for death sentences, but the court's ruling said a 12-0 vote was needed. The Senate preferred a unanimous jury, but the House and state prosecutors wanted more leeway.

"The Supreme Court has kind of set the direction that we need to go in, so I think there'll be more buy-in from the House," said Bracy, chairman of the Senate Criminal Justice Committee.

No bill has been filed in the House yet, but House Judiciary Committee chairman Rep. Chris Sprowls, R-Palm Harbor, said his panel will hold hearings on the issue next week. He wants to look at the entire death penalty statute for possible changes, not just the unanimous jury provision.

"There's a pronged analysis that goes into every death penalty case," said Sprowls, a former prosecutor who has tried capital murder cases. "We're going to view each one of those independently and collaboratively and figure out the best scheme to serve Floridians."

Lawmakers say the issue is among their top priorities and that delays of murder trials are plaguing the courts. Senate President Joe Negron, R-Stuart, said about 200 cases are affected by the death penalty's status in limbo.

"I think its paramount for the victims' families for cases to be fairly adjudicated without delay," Negron said. He added that he hopes for a Senate vote soon after the legislative session that begins March 7.

The issue stretches back to January 2016, when the U.S. Supreme Court struck down Florida's death penalty law because it allowed a judge to issue a death sentence after taking into account a jury's recommendation. Under the old law, a 7-5 majority recommendation was enough to recommend death.

Except for Alabama and Florida, all of the 32 states with capital punishment require a unanimous vote for death. Florida was one of five states that executed a prisoner in 2016.

The Legislature responded by passing the 10-2 jury vote law. That was then declared unconstitutional as well by the Florida Supreme Court's October ruling.

But even if lawmakers pass a new law this year, courts could be grappling with the fallout in the future. The court's October ruling didn't specify what should happen to ongoing capital murder cases or whether those on death row who weren't sentenced by a unanimous jury have grounds for an appeal of their sentence.

Bracy said he believes the Legislature should declare the unanimous jury provision to apply retroactively, but he hasn't included it in his bill. That would give every prisoner on death row sentenced to death by a split jury the grounds to appeal for a life sentence.

The state's highest court compounded the confusion this week when it issued an order telling prosecutors they couldn't seek the death penalty in ongoing murder trials, only to vacate the order hours later. A court spokesman later said the order was "prematurely issued."

The episode came a day after a judge for Brevard and Seminole counties empaneled a jury for the sentencing phase of a murder trial, thinking he could move forward by telling the jury a death sentence had to be unanimous.

Sprowls said the ambiguity of the law is causing "paralysis" in the trial courts. Judges are typically allowed to issue alternate jury instructions to comply with a court order that updates existing laws, he said, but it doesn't seem like the Florida Supreme Court will allow that to happen in this case.

"I think that you have a court that is clearly demonstrating a systematic hostility towards the death penalty in general," Sprowls said.

Gov. Rick Scott, who signed the death warrants and oversaw the executions of 23 prisoners since he took office in 2011 - the most of any governor since the death penalty was reinstated in 1976, isn't pressing lawmakers for an answer to the situation.

A spokeswoman for Scott said his office is still reviewing the Florida Supreme Court ruling, but wouldn't say if he has a preference for how the law should be fixed.

Meanwhile, the families of murder victims, the 384 prisoners on death row, prosecutors, defense attorneys and judges are waiting on a resolution. Groups that oppose the death penalty are also awaiting the outcome, but are pleased the courts are moving toward making it harder to get the death penalty.

It's also put a de facto moratorium on executions, as Scott hasn't signed a death warrant since the U.S. Supreme Court's ruling last year.

Ingrid Delgado of the Florida Conference of Catholic Bishops noted that Saturday marks one year since the last prisoner, Oscar Ray Bolin Jr., was executed.

"This is another reminder that executions are not needed to keep society safe," Delgado said.

Source: Orlando Sentinel, January 7, 2017

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