Herman was sentenced to death after a jury voted to recommend the death sentence by a vote of 8-4. That is the same vote that is required under Florida’s new capital sentencing law that Gov. Ron DeSantis approved and signed into law on April 20, replacing Florida’s requirement of a unanimous death recommendation.
Herman still remembers the day he was sentenced and the words the trial judge said: “When I heard the judge say, ‘We the people of the State of Florida, hereby sentence you to die by lethal injection,’ my feelings, emotions and thoughts all went numb. I felt hopeless, and I felt like a living zombie.”
In a sense, Herman’s case was rare because the Florida Supreme Court’s order overturning his conviction came fairly soon after his trial — about 18 months! Many times, it is years, if not decades, before justice is obtained for those wrongfully convicted. For example, Robert DuBoise spent 37 years on Florida’s death row before being exonerated. This legislative session, the Florida Legislature approved awarding him $1.85 million in return for his lost time.
Even 14 years after being released from death row, Herman still lives with the lasting effects of his death sentence. Aside from the trauma he has endured, which cannot be erased, he still does not have his rights restored.
I am no stranger to the death penalty. The Florida Supreme Court spends an extraordinary amount of time reviewing death sentences. During my more than two decades on the Florida Supreme Court, I was involved in numerous cases in which the court affirmed the sentence of death. I also signed on to dozens of opinions that allowed defendants to be executed by the state of Florida.
I was also on the court throughout litigation regarding the constitutionality of Florida’s capital sentencing scheme, which led to the unanimity requirement that the new Florida law changed, returning the state to an 8-4 majority recommendation for death.
Florida’s capital sentencing system is fraught with valid concerns, whether one supports the death penalty or not. Not only does Florida have a long history of constitutional errors in capital punishment, but stories like Herman’s are not as rare as one would think. Florida has the highest number of death row exonerations in the country. Thirty people have been wrongfully convicted and sentenced to death in the state since capital punishment was reinstated in 1976. In almost all of those cases, the jury’s vote to recommend death was non-unanimous.
During my time on the court, I advocated for the absolute need for jury unanimity before imposing the death penalty. In my concurring opinion in Hurst v. State, in which the Florida Supreme Court held that unanimity is required (which has since been repealed), I wrote: “If ‘death is different,’ as this court and the United States Supreme Court have repeatedly pronounced, then requiring unanimity in the jury’s final recommendation of life or death is an essential prerequisite to the continued constitutionality of the death penalty in this state.”
The new law was apparently a reaction to the jury’s failure to unanimously recommend a sentence of death for Nikolas Cruz, who was 19 years old at the time he committed multiple murders in the shooting at Marjory Stoneman Douglas High School. I cannot comprehend the pain that the victims of the Parkland murders experienced. But this new legislation will most certainly result in extensive litigation and raises concerns about the constitutionality of sentences of death imposed under it.
Another law approved this year also expands capital punishment to non-homicide sex crimes against children under 12 and uses the same 8-4 standard for the jury’s recommendation for death. This law is clearly unconstitutional under long-standing U.S. Supreme Court precedent stating that a death sentence cannot be imposed for crimes that do not intentionally cause the victim’s death.
The Legislature and the governor assert that this legislation protects victims of heinous crimes, but the legislation — which has the potential to be declared unconstitutional — increases the likelihood that victims will be subjected to years of additional litigation if the sentences are eventually overturned. If this state is determined to have a death penalty, we should do everything in our power to ensure it is not wrongfully imposed and is constitutional when it is imposed. Instead, the state of Florida just implemented measures that I fear will do just the opposite.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
— Oscar Wilde
but by the punishments that the good have inflicted."
— Oscar Wilde