The Supreme Court will examine Florida's capital punishment system in its next term, and legal experts believe Florida's death penalty itself may be in danger.
A solution could be in a legislative fix now moving slowly through the Capitol in Tallahassee. It's been passed by one Senate committee but the House is showing little interest in the companion bill.
The Supreme Court case involves a murder conviction and death sentence from Escambia County and whether it violates the court's 2002 holding in Ring vs. Arizona. That decision emphasized Sixth Amendment jury responsibility for death sentences, even when they are only recommendations to the judge. Until now, subtleties in Florida law had seemed to keep the state in a grey area in which Ring did not apply.
But since Florida -- alone among the 32 death-penalty states -- allows jury recommendations of death by simple majority and doesn’t require a provably rigorous examination of aggravating and mitigating circumstances, state law is now seen as requiring too little of its first-degree murder juries.
Juries must determine guilt unanimously. Between 2000 and 2012, according to a Senate staff analysis, juries recommended death penalties by 12-to-0 in only 60 of 320 cases. Ninety-six others were decided by votes of 11-to-1 or 10-to-2.
In the Escambia County case, the jury vote for death was 7-to-5. The jury left no record of whether it had even considered defendant Timothy Hurst's claim that he was mentally disabled.
In Tallahassee, most of the discussion about the death penalty bills is about the unanimity requirement and whether it contributes to Florida's status as the number-one state for Death Row exonerations.
"Florida is an outlier," said Senate bill sponsor Thad Altman (R-Brevard County). "You require a unanimous jury vote for guilt in a capital case. Why would you not if you’re going to take a human life?"
Altman is a conservative Republican who has some misgivings about the death penalty but would rather not see it struck down. His bill would impose a unanimity requirement on jury penalty recommendations and proof of the aggravating and mitigating factors to the same standard as the rest of the trial evidence. Jurors would have to approve those, too, also unanimously.
The same requirements are in the House bill sponsored jointly by State Rep. Jose Javier Rodriguez (D-Miami Dade County) and Clovis Watson (D-Alachua County). Rodriguez says the politics are complicated, and no committee has agreed to hear it.
"There are those of us who are very intent on reform and there are some people who see this reform measure as sort of soft on crime," Rodriguez said. "It's really not at all that."
Like Altman -- with whom he generally disagrees -- Rodriguez thinks if there must be a death penalty, it must be fairly applied. And that's a view shared by one of the death penalty's most implacable opponents, the Catholic Church.
"We support the bill, very, very much," said Ingrid Delgado, who lobbies the Legislature for the Florida Conference of Catholic Bishops, which is often against the death penalty. "Our bishops for a very long time have been saying that it shouldn't exist in our state that we should discontinue it in our state. However, as long as we do have the death penalty, then the process should be as just and reliable as possible.
Perhaps predictably, the bill is favored by defense lawyers and opposed by prosecutors. At a meeting of the Senate committee that ultimately passed Altman's bill, they argued over how requiring unanimity might affect murder case juries.
Rex Demming of the Florida Public Defenders Association said the current simple majority rule makes it too easy to condemn the defendant.
"Jurors are exhausted by the time they get to the penalty phase. They've sat through days or weeks of testimony and they're ready to get it done. When they hear, 'All you have to do is go back there, get a simple majority vote and come back,' they're more than anxious to do that," Demming testified.
But Alachua County State Attorney William Cervone, speaking for the Florida Prosecuting Attorneys Association, said requiring unanimity would remove nuances that can help the sentencing judge. "It is very instructive for the judge to know that the jury felt 12-to-nothing or the jury felt 7-to-5 in making this ultimate decision on this very important question," Cervone told the committee.
If the death penalty reform bill doesn't pass and the Supreme Court rules as predicted, Florida's death penalty could collapse of its own weight.