Skip to main content

Courts grapple with Florida death penalty changes

TALLAHASSEE — A new state law lowering the number of jurors required to recommend death sentences has spurred a rash of litigation, triggered conflicting judicial rulings and infused an additional level of uncertainty in capital cases.

The changes have caused what numerous attorneys called “chaos” in the death-penalty system.

The law allows death sentences to be imposed based on the recommendations of eight of 12 jurors, an easier threshold than a previous requirement of unanimous jury recommendations. The change — prompted by Parkland school shooter Nikolas Cruz receiving a life sentence after a jury did not unanimously recommend death — gave Florida the lowest death-penalty jury standard in the nation.

Allowing 8-4 recommendations is the latest in a series of changes in the capital-sentencing process since a 2016 U.S. Supreme Court decision in a case known as Hurst v. Florida. The ruling found that the state’s death-penalty process was unconstitutional.

In October 2016, in the similarly named case of Hurst v. State, the Florida Supreme Court interpreted and applied the U.S. Supreme Court ruling and said unanimous jury recommendations were required. The Legislature responded in 2017 by putting such a unanimous requirement in law.

Amid uncertainty over whether the unanimity requirement should be applied retroactively to older cases, justices ordered resentencing for about 150 Death Row inmates who were sentenced based on recommendations by non-unanimous juries. Before 2016, inmates could be sent to Death Row based on majority — or 7-5 — jury recommendations.

About 90 resentencing proceedings were completed under the unanimity requirement before this year’s law went into effect. More than three-fourths of those proceedings resulted in life sentences, with prosecutors often not asking for the death penalty in the resentencings.

When Gov. Ron DeSantis signed the 8-4 law this spring, nearly five-dozen Hurst resentencing cases were pending. That has led to disputes about which standard should apply.

“Undoubtedly, the new statute will plunge Florida’s death-penalty system into further instability and chaos,” Maria DiLiberato, executive director of Floridians for Alternative to the Death Penalty, told The News Service of Florida. “This knee-jerk change, in an understandably emotional case (the Cruz case), is causing complete destabilization of Florida’s death penalty.”

The Legislature approved the change after an ideological shift in recent years on the Florida Supreme Court. Shortly after DeSantis took office in 2019, he appointed justices who established a conservative majority. The court in 2020 reversed course on the death penalty and said unanimous jury recommendations were not necessary.

The unanimity requirement remained on the books, however — until this spring, when state lawmakers passed the law responding to the Cruz life sentence. DeSantis, who championed the change to a lower standard, signed the legislation on April 20.

The change is affecting Death Row inmates preparing for resentencings because of the Hurst decision. The unanimous standard was in place when the resentencings were ordered, leading their attorneys to argue it should continue to apply in the cases.

The new law also is having an impact on cases involving defendants accused of committing murders before DeSantis signed the law. Their attorneys also maintain the 8-4 threshold should not apply retroactively.

“Here we go again, with changes of laws that create different categories of people that are being treated very differently, which has to be a violation of the Constitution. And then, we’re looking at the overreach or the overstep as a result of very emotional, traumatized community and the play of politics in the death penalty, which is just horrifying, but we know it’s very political,” Hannah Gorman, a professor who is director of The Balanced Justice Project at Florida International University’s College of Law, said in an interview.

The dispute over applying the 8-4 standard, in part, involves what is known as the “ex post facto” clause in the state and federal constitutions.

Defense attorneys contend that applying the new standard to cases initiated before April 20 would violate the ex post facto clause because the standard represents a substantive change in the judicial process.

Prosecutors, however, maintain that the lower threshold amounts to a “procedural” change and therefore should apply in such cases.

Judges — including in the same judicial circuit — are divided on the issue.

In the 10th Judicial Circuit, Judge Kevin Abdoney last month rejected prosecutors’ request to apply the 8-4 standard in the sentencing of Bryan James Riley, who was charged with four counts of first-degree murder in September 2021.

Abdoney, a Polk County-based judge, found that the new law “moved the goalposts” on the state’s death-penalty process.

“In the same stroke of the pen, the Legislature has reduced friction on the path toward death while increasing it on that toward life. As a result, the risk to a defendant confronted with the possibility of being executed that he will actually meet such an end is greater now than before. Shouldering the defendant with such increased risk not present at the time he allegedly committed his crimes substantially implicates ex post facto concerns,” Abdoney wrote in a July 12 ruling.

But three weeks earlier in the same circuit, Judge Angela Cowden ruled that the 8-4 standard should be used in the sentencing of Zephan Xaver, who was accused of killing five women during a bank robbery in 2019.

“In defendant’s (Xaver’s) case, the change in the law has increased his chances of receiving the maximum sentence he already faced; however, it has not ‘change(d) the punishment, (or) ‘inflict(ed) a greater punishment, than the law annexed to the crime, when committed,’” Cowden, who is based in Highlands County, wrote on June 26, partially quoting a legal precedent.

Both judges’ analyses were rooted in prior court rulings on the ex post facto issue.

As circuit judges grapple with which standard should apply, a number of appeals have made it to the Florida Supreme Court. But a “lead” case — if there will be one — has not emerged.

Lawyers for Attorney General Ashley Moody argue that the new law should apply to “all defendants whose penalty phases” will occur after April 20.

A Supreme Court case drawing attention is the appeal of Leonard Gonzalez, a Death Row inmate ordered to be resentenced following the Hurst decision. Gonzalez, who was convicted in the 2011 murders of an Escambia County couple, is appealing a circuit judge’s ruling that called for the 8-4 standard in resentencing.

Gonzalez’s case includes a number of twists, with Moody’s lawyers initially asking justices to weigh in on the retroactivity issue.

“Capital trials and Hurst resentencings are being stayed and delayed awaiting guidance from this (Supreme) Court regarding the constitutionality and proper application of the recently amended death penalty statute. This court should address these issues as quickly as possible to prevent any further delays,” Charmaine Millsaps, a senior assistant attorney general, wrote in a brief filed June 19.

But just weeks later, another one of Moody’s lawyers filed a motion asking the Supreme Court to dismiss the case, arguing that Gonzalez’s appeal raised issues “best addressed in a post-trial direct appeal.”

The court rejected the state’s request, and the case remains pending.

Melanie Kalmanson, an attorney who publishes the Tracking Florida’s Death Penalty blog, pointed to the state’s filings in the Gonzalez case to demonstrate what she called “widespread chaos” in the death-penalty system.

“There’s some indication that even the state is not sure how they want to address the litigation about the new statute,” she said.

Source: orlandosentinel.com, Dara Kam, August 23, 2023


_____________________________________________________________________




_____________________________________________________________________


FOLLOW US ON:












HELP US KEEP THIS BLOG UP & RUNNING!



"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."


— Oscar Wilde

Most viewed (Last 7 days)

Florida Set to Execute Man Who Said He Killed to Reach Death Row, Challenging Misconception that Death Penalty Deters Crime

Florida is scheduled to execute James Robertson at noon on Tuesday, October 13, at Florida State Prison. His execution remains scheduled despite the withdrawal of William Lee Thompson’s death warrant, which had called for a 2nd execution that evening. If completed, this will be Florida’s 17th execution of 2026. Floridians for Alternatives to the Death Penalty (FADP) and partners will be holding a series of vigils and demonstrations across the state. 

Christa Pike's Survival Wasn't a Miracle. That's What Should Scare Us.

What happened in Tennessee's execution chamber is one of the most common failures in medicine Christa Pike is awake. A week after Tennessee strapped her to a gurney and gave her two doses of pentobarbital , she is off the ventilator and speaking from a hospital bed, still shackled to it. Her lawyers call her recovery " medically unprecedented. " Legal scholars say she is the first person in American history to survive a lethal injection after the drug was actually given. I understand the impulse to make such claims. I consulted for Pike's legal team, but I have also spent three decades in operating rooms and intensive care units (ICUs), and I want to resist the word "unprecedented" and the word "miracle" that hovers just behind it.

Christa Pike: 4 Major Questions As She Returns to Death Row

As Christa Pike returns to death row after surviving Tennessee’s attempt to execute her, several questions remain about her case and what comes next.  Pike, 50, was discharged from hospital and moved back to the Debra K. Johnson Rehabilitation Center, the women’s prison where she was housed for 30 years, her attorneys said on Saturday.  She was hospitalized after surviving 2 doses of the lethal drug pentobarbital as Tennessee attempted to execute her on September 30. Pike was sentenced to death for the 1995 murder of 19-year-old Colleen Slemmer, her classmate at a Job Corps training program in Knoxville, Tennessee. Pike was 18 at the time. 

Florida executes James Robertson

STARKE, Fla. — A Florida prisoner who said he killed his cellmate specifically to get on death row was executed Tuesday, nearly 18 years after the attack. James Robertson, 63, declined to offer any last words before receiving a three-drug injection and was pronounced dead about 10 minutes later. It was a stark contrast to the failed execution of Christa Pike in Tennessee two weeks ago, where she was rushed to the hospital after surviving two lethal doses of pentobarbital.

USA | Firing squad execution to be livestreamed, Pentagon says

The public will be able to watch the execution of a former US Army major by firing squad, US Defence Secretary Pete Hegseth has said. A Defense Department official told the BBC the execution of Nidal Hasan, who shot dead 13 unarmed US soldiers at Fort Hood in 2009, would be livestreamed. It is believed it would be the first public execution in the US in almost a century. The decision to livestream it is "unprecedented in the modern era" and "on uncertain legal terrain", said John Mills, a lawyer who works with inmates sentenced to death.

Saudi Arabia executes two Bangladeshis over 'immoral act' inside mosque

Saudi Arabia has carried out the death penalty on two Bangladeshi nationals in Mecca. The country's Interior Ministry announced this in a statement on Wednesday. According to the report, they were sentenced over allegations of involvement in immoral acts inside a mosque in Mecca. The information was reported by Ajel News, citing the Saudi Interior Ministry's statement. The two Bangladeshis executed were a man and a woman, Nazrul Islam Abdul Basir and Sithi Akhter. The “immoral acts” referred to illicit heterosexual intercourse, not homosexual activity.

What Tennessee wants to do next to Christa Pike is beyond grim

Christa Pike, the woman who survived two execution attempts in Tennessee earlier this week, remains hospitalized in critical condition, where presumably medical staff is at work trying to keep her alive.  If she wakes from the coma she had entered, Tennessee officials want to start anew to inject lethal drugs into her seemingly too-small veins to kill her and carry out the state death warrant. Pike also is being treated for “significant injuries to both arms” sustained when two lethal injections of pentobarbital failed to kill her. If she dies, there will be no need to try again.  As we know by now, Tennessee tried to put Pike to death Wednesday night by lethal injection for a murder she committed when she was 18. She would have been the first woman executed in the state in 200 years. 

Tennessee | Republicans legislature to investigate other execution methods after failed lethal injections

Republican leaders in Tennessee’s legislature say they will investigate the reliability of lethal injection as an execution method after the state failed to execute two death row inmates in the span of five months. Gov. Bill Lee stopped the May execution of Tony Carruthers after a physician unsuccessfully attempted to insert intravenous lines to begin the lethal injection process for over an hour. Death row inmate Christa Pike survived two failed rounds of Tennessee’s lethal injection protocol on Sept. 30 before the execution was halted. Pike, who was sentenced to death for the 1995 murder of Colleen Slemmer, is receiving medical care in a Nashville hospital. 

Buffalo Tops shooter files last-minute bid to avoid death penalty

Payton Gendron, who is already serving life without parole for killing 10 Black people in a racist mass shooting at a Buffalo supermarket in 2022, is asking a federal judge to throw out the case that could send him to death row. Defense attorneys filed the motion Monday — a day before jury selection was scheduled to begin — seeking to dismiss Gendron’s federal indictment. They argued that Black residents are underrepresented in the jury pool for New York’s Western District, according to WIVB and WKBW.

Tennessee | Christa Pike’s lawyer says she has not regained consciousness since her failed execution

Christa Pike has remained unconscious and on a ventilator at a hospital in the four days since her failed execution in Tennessee, and her prognosis might not be known for days more, one of her lawyers said Sunday. Little has been released about Pike’s condition since Wednesday night’s execution attempt. She has since remained hospitalized under guard as doctors try to get the massive dose of the barbiturate pentobarbital out of her system. When asked whether she ever regained consciousness after the execution attempt, Assistant Federal Defender Stephen Ferrell, Pike’s lawyer, said on CNN’s “State of the Union”: “Not that I am aware of.”