TALLAHASSEE — A 2023 law that reduced the number of juries needed to recommend execution has resulted in a “quintessential game of chance” for inmates receiving new sentences due to changes in the state’s death penalty process and “silence unconstitutionally black voices,” groups argue in what could be a pivotal case in the Florida Supreme Court.
The law allowed death sentences to be imposed based on the recommendations of eight of the 12 jurors, an easier threshold than the previous requirement of unanimous jury recommendations. The change, spurred by the life sentence for Parkland school shooter Nikolas Cruz after a jury did not unanimously recommend death, gave Florida the lowest death penalty jury standard in the country.
Allowing 8-to-4 recommendations was the latest in a series of changes to the capital sentencing process after a 2016 U.S. Supreme Court decision in a case known as Hurst v. Florida will declare the state process unconstitutional.
That ruling led the Florida Supreme Court to decide that unanimous recommendations were required for death sentences, which the Legislature then enshrined in state law. The judges ordered a new sentence for about 150 death row inmates who had been sentenced based on non-unanimous jury recommendations.
However, amid the new rulings, a renewed Florida Supreme Court departed from the unanimity requirement and paved the way for the 8-4 law, which took effect on April 20, 2023.
Michael James Jackson, convicted of two murders in Jacksonville in 2005, is among about 40 death row inmates whose new sentences were pending when the 8-4 law took effect. A jury voted 8-4 on May 25, 2023, to recommend Jackson’s execution, and a judge handed down the death sentence in August.
In a friend-of-the-court brief filed last week in the Jackson case, a coalition of groups argued that differing death penalty standards have injected unconstitutional disorder into the resentencing process in cases that were pending when the law change.
The groups, including the Florida Criminal Defense Lawyers Association, the Florida Public Defenders Association, the Florida Institute for Justice, Floridians for Alternatives to the Death Penalty and Conservatives Concerned about the Death Penalty, argued that the Requirement 8-4 has been applied “based on chance.”
The resentencing standards depended on “an arbitrary layout based on the date” the sentence was finalized, wrote on behalf of the groups, Melanie Kalmanson, an attorney at the firm Quarles & Brady LLP who frequently writes about the death penalty.
“The data on Hurst’s resentencing proceedings show that whether a capital defendant was resentenced under Florida’s post-Hurst unanimity statute or the 8-4 statute is the quintessential game of chance,” the brief filed Thursday said. .
Jackson’s case, the first direct death penalty appeal to the Florida Supreme Court under the 2023 law, also prompted a brief Tuesday from Black groups and state lawmakers alleging that the 8-4 law unconstitutionally violates equal protection rights for jurors and “silence black voices.”
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Groups that signed Tuesday’s report included the Florida NAACP State Conference and Equal Ground Education Fund Inc., along with five black state representatives and a former state senator, who are Democrats.
The 2023 law “disproportionately excludes the votes of Black jurors in capital sentences,” Christopher Belelieu, an attorney with the firm Gibson, Dunn & Crutcher, wrote in the 29-page brief.
“Like systemic state systems of exclusion and racially charged peremptory strikes, non-unanimous juries operate to exclude the voices of black jurors, thereby depriving them of the equal protection of the laws guaranteed by the Fourteenth Amendment,” the report said. written.
The law, “by design,” operates to “prevent the voices of up to a third of jurors from being heard,” Belelieu wrote.
“A law that denies jurors the same right to have their voices heard is clearly unconstitutional and undermines trust and legitimacy in the judicial process,” the brief said.
Tuesday’s brief also said that the lack of jury unanimity “has historically been, and continues to operate, a method of disenfranchising black jurors and erasing their votes to the detriment of their constitutional rights.”
Such “racial bias…endangers the legitimacy of the entire judicial process,” Belelieu wrote.
As of March 31, only a fraction (17%) of new sentences decided under the unanimity requirement had resulted in death sentences, according to the brief filed last week. While Jackson was sentenced after an 8-4 recommendation, a jury voted 9-3 in January to recommend the death of inmate Bessman Okafor in an Orange County murder, but a judge won’t sentence him until June.
The court needs to “rectify the unconstitutional arbitrariness created by this new subset of cases,” Kalmanson wrote. The brief does not seek a ruling on the underlying constitutionality of 8-4, but asks the court to “level the playing field for those prisoners who were granted a new sanction phase after Hurst.”
The brief also argued that the disparity in the application of death sentencing standards violates constitutional protections against cruel and unusual punishment.
“The United States Supreme Court has made clear that this right includes protection against the arbitrary imposition of the death penalty,” Kalmanson wrote. “The procedural roulette that Florida death row prisoners have been forced to play since Hurst is the epitome of the arbitrariness that the Eighth Amendment prohibits in capital punishment.”
The date on which a death sentence becomes final depends on several factors outside the defendant’s control, the brief filed last week argues. The COVID-19 pandemic, natural disasters like hurricanes, and attorney schedules can also slow down the process.
Jackson’s case “illustrates this uncertainty,” Kamalson wrote. Jackson was considered the “mastermind” behind the deaths of Reggie and Carol Sumner, a pair of 61-year-olds who were buried alive after being kidnapped from their Jacksonville home. One of Jackson’s co-defendants, Alan Wade, was resentenced to life in prison without parole under the unanimity law. Another co-defendant, Tiffany Cole, was resentenced to life in prison under the 8-4 requirement.
“If Mr. Jackson’s resentencing had proceeded just a few months earlier under the unanimity statute, he would have received a different sentence (as Mr. Wade did). Imposing death sentences based on chance is antithetical to the protections afforded by the Eighth Amendment and, likewise, Article I, Section 17, of the Florida Constitution,” Kalmanson argued, referring to part of the Florida Constitution that addresses cruel and unusual punishments. .
As of Tuesday afternoon, the Supreme Court had not accepted any of the briefs.
Jackson’s case “particularly highlights the utter arbitrariness of the death penalty in Florida,” Maria DeLiberato, executive director of Floridians for Alternatives to the Death Penalty, told the News Service of Florida on Tuesday.
“But for several random acts, including a hurricane, Mr. Jackson’s trial would have proceeded unanimously,” said DeLiberato, an attorney. “The Legislature’s 2023 law change, which eliminates unanimity, has thrown Florida’s death penalty plan into chaos. Mr. Jackson firmly maintains that his death sentence is not the product of a legal constitutional verdict, but is wholly arbitrary and unreliable.”
By Dara Kam, News Service of Florida
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