Florida could end unanimous jury requirement for executions

The United States Penitentiary in Terre Haute, which houses federal death row. (IL file photo)

Gov. Ron DeSantis and Florida lawmakers proposed legislation making it easier to send convicts to death row by eliminating a unanimous jury requirement in capital punishment sentencing — a response to anger from victims’ families following a verdict sparing a school shooter from execution.

The proposal comes after a divided 9-3 jury spared Marjory Stoneman Douglas High School shooter Nikolas Cruz in November from capital punishment for killing 17 at the school in 2018. The Parkland school shooter instead received a life sentence. 

The Cruz decision outraged many and is likely the catalyst for Florida’s move to drop its unanimity requirement for capital punishment.

Republican legislators, at the governor’s urging, introduced legislation to allow the jury to choose the death penalty with only eight of the 12 jurors in favor, which would make Florida the only state to use that standard.

Only three states out of the 27 that impose the death penalty do not require unanimity. Alabama allows a 10-2 decision and Missouri and Indiana lets a judge decide when there is a divided jury.

Tony Montalto, whose 14-year-old daughter Gina died in the massacre, said changing the requirement from unanimity to 8-4 would prevent “an activist juror from denying the victims’ families justice.”

“The people subject to the death penalty are already convicted murderers, they are not people picked off the street,” Montalto said.

DeSantis, a Republican expected to launch a 2024 White House bid in the late spring or early summer, has not signed death warrants at the same rate as his predecessors, but said Cruz deserved capital punishment and he would have expedited Cruz’s execution if given the chance.

With Florida’s legislative session approaching, DeSantis advocated for the change as part of a larger criminal justice legislative package, described by the governor as a counter to the “soft on crime” policies in Democrat-led states.

“I don’t think justice was served in that case. If you’re going to have capital, you have to administer it to the worst of the worst crimes,” DeSantis said of the Cruz case, adding that it “should be the vast majority” of jurors for a death sentence.

DeSantis, who has leaned into issues that resonate with the conservative voters who typically decide GOP primary contests, has emerged as a fierce opponent of so-called “woke” policies on race, gender and public health and a staunch backer of law-and-order policies to fight crime. He also has floated the idea of exploring ways to institute capital punishment for people convicted of sexually assaulting children.

Republican legislative leaders in the GOP-dominated statehouse appear receptive to abolishing the unanimity requirement for capital juries and tend to carry out the governor’s agenda. The bills, filed by Republicans in the House and Senate, are expected to be taken up when Florida’s legislative session begins in March.

For decades, Florida had not required unanimity in capital punishment, allowing a judge to impose capital punishment as long as a majority of jurors were in favor of the penalty. But in 2016, the U.S. Supreme Court threw out the state law, saying it allowed judges too much discretion.

The state Legislature then passed a bill requiring a 10-2 jury recommendation, but the state Supreme Court said such recommendations should be unanimous, prompting lawmakers in 2017 to require a unanimous jury.

Three years later, the state Supreme Court, with new conservative jurists appointed by DeSantis, rescinded its earlier decision and ruled that a death recommendation does not need to be unanimous. Florida’s unanimity standard has remained untouched, though there had been no overwhelming desire to change state law.

Republican state Senate President Kathleen Passidomo said she is open to revisiting Florida’s unanimous verdict requirement following the Cruz decision and the state Supreme Court ruling. She said she shared the shock many felt over the Cruz verdict.

“The looks on the faces of the victims’ families were heartbreaking. In my view, the case raises a number of issues related to Florida’s laws regarding sentencing in capital felonies, and I understand that many Floridians feel that justice was denied,” she said in a statement.

A database on the website of the anti-execution Death Penalty Information Center shows 1,558 people have been executed since the death penalty was reinstated in the mid-1970s, including 99 in Florida. National support for capital punishment has fallen in recent decades, with most polls finding between 50% and 60% of people now back the death penalty.

President Joe Biden campaigned on a pledge to work toward abolishing the death penalty but has not taken major action to end the practice. The U.S. Justice Department still presses for the death penalty in certain cases but has a moratorium in place, making federal executions unlikely.

Issuing a death sentence is a two-step process in Florida.

First, the prosecution must prove beyond a reasonable doubt through a unanimous vote at least one of 16 aggravating factors under Florida law. Those include the murder of a law enforcement officer or government official; killings that are especially heinous, atrocious or cruel; the killing of a child under 12 years old; and murders that are cold, calculated and premeditated, or committed during an act that created a great risk of death to many people.

The change would impact the second step: Under the current law, jurors also must unanimously agree the aggravating factors “outweigh” any mitigating circumstances the defense might offer, such as the killer’s mental health, intellect or upbringing. The proposals would change that burden to eight out of 12 jurors.

Richard Dieter, interim executive director of the Death Penalty Information Center, said it was understandable for people to be upset with the Cruz sentencing, but he took issue with the potential upending of the jury unanimity standard on the basis of the case.

“It’s a big deal sort of going back on something so fundamental as our jury system in the country. It’s not just changing from 9-3 to 10-2, that might not be a big deal, but doing away with unanimity, I think a lot of caution should be practiced in that change,” he said. “And in the sense that this is happening in response to one case is a concern.”

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