Florida’s Death Penalty and the Supreme Court’s Make Up Call

Interior View of Death Row Cell BlockInterior View of Death Row Cell Block (Photo: Library of Congress)

A month ago the Supreme Court of the United States struck down a key part of Florida’s death penalty procedure. Writing for the court, Justice Sonia Sotomayor found that the state’s decades-old capital sentencing scheme violated nineteen-year-old African American Timothy Lee Hurst’s constitutional right to a fair and impartial jury. First in 1972, and then on scores of occasions since, the Court had acknowledged that the death penalty is “qualitatively different” than any other punishment and, therefore, must be governed by unique safeguards so that capital punishment is not administered arbitrarily.

In Hurst v. Florida, the Court ruled that a jury, not a judge, must find each fact necessary to impose a death sentence. The decision returned to the jury the power to sentence the convict and, in doing so express the conscience of the community on the ultimate question of life or death. In just ten tightly argued pages, Sotomayor’s opinion overruled a thirty-two-year-old conservative decision and restored a 300 year-old legal tradition. Still, while no small achievement, its immediate impact on death penalty jurisprudence is limited.

Under the pre-Hurst sentencing scheme, the maximum sentence a Florida capital felon could receive on the basis of conviction alone was life imprisonment without possibility of parole. Following the defendant’s conviction, state law called for the judge to conduct an evidentiary hearing before the jury. Without specifying the factual basis for its recommendation, the jury rendered an “advisory sentence” of life or death. Notwithstanding the jury’s recommendation, the judge independently weighed the aggravating and mitigating facts and entered a sentence of life imprisonment or death.

In 1998, Hurst was convicted of stabbing to death a co-worker and robbing the restaurant where they worked. The jury recommended death by a bare majority, 7-5. (Florida is one of three states that do not require a unanimous jury verdict when sentencing someone to death.) The trial judge weighed the mitigating and aggravating facts and concluded the murder was especially “heinous, atrocious, or cruel” and sentenced Hurst to death. The Florida Supreme Court affirmed the decision. Hurst appealed his sentence and the U.S. Supreme Court granted review.

The question before the Supreme Court was framed as follows: Did Florida’s sentencing scheme violate Hurst’s Sixth Amendment right to an impartial jury whose function in a capital case is to attest to the facts necessary to impose a sentence of death? Writing for the majority, Justice Sotomayor answered the question with a resounding “Yes.” Florida’s “hybrid” procedure denied Hurst his constitutional right to a fair trial. “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death,” she wrote. “A jury’s mere recommendation is not enough.”

To reach her decision in Hurst, Sotomayor had first to overturn Spaziano v. Florida, in which the Supreme Court had found the state’s death penalty sentencing scheme constitutional. By the time Joseph Spaziano’s appeal was granted in 1984 the Supreme Court’s makeup had changed dramatically. During his 1968 campaign for the presidency, Richard Nixon criticized the Warren Court for its alleged “liberal excesses” and he promised, if elected, to appoint conservative justices who would restore law and order. Within three years after Chief Justice Earl Warren’s 1969 retirement, Nixon had appointed to the Supreme Court four conservatives – Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist – committed to rolling back the Warren Court’s expansion of the accused’s rights.

Among a host of other changes, the Burger Court allowed significant changes to the traditional forms of a jury trial. Trial by jury historically had meant a twelve-member jury that weighed the facts and found the defendant guilty by a unanimous vote and, at the same time, sentenced the convict to life imprisonment or death. After the Supreme Court briefly struck down capital punishment in 1972, Florida reinstated the death penalty, changing the basic elements of capital procedure.

Spaziano’s 1975 trial for murdering two women incorporated Florida’s new capital procedure. After a trial jury found him guilty, a separate sentencing hearing was conducted before that same jury. As required by the new guidelines, both sides offered evidence focused on a statutory list of aggravating and mitigating circumstances. A majority of the Spaziano jury recommended life imprisonment. However, the elected trial judge overruled the jury’s advice and imposed a sentence of death. The Florida Supreme Court affirmed the decision. Before the U.S. Supreme Court, Spaziano challenged the constitutionality of Florida’s sentencing provisions.

Writing for the majority, Justice Harry Blackmun upheld the Florida law. “We are not persuaded,” he wrote, “that placing the responsibility on a trial judge to impose the sentence in a capital case is so fundamentally at odds with contemporary standards of fairness and decency that Florida must be required to alter its scheme and give final authority to the jury to make the life-or-death decision.” Blackmun’s opinion was informed in part by conservative hostility to incorporation. Incorporation links selected portions of the Bill of Rights to the due process clause of the Fourteenth Amendment, placing the guarantee of individual rights in the hands of the federal government and beyond state control. This process was the means by which the Warren Court had nationalized the rights of the accused. Blackmun’s decision repudiated the Warren Court’s due process revolution. “We are unwilling to say,” Blackmun wrote, “there is any one right way for a State to set up its capital sentencing scheme.”

Justice John Paul Stevens dissented. State law, he noted, is not the source of liberty. It is the command of the Fourteenth Amendment of the United States Constitution that no state may “deprive any person of life… without due process of law.” The Court’s commitment to that mandate led it to establish heightened procedural safeguards that a state must follow when it took a person’s life. He pointed out that in 82 other first-degree murder cases that were tried under Florida’s unusual procedure between 1972 and 1984, the trial judge had sentenced the defendant to death after a jury had recommended life imprisonment. And, Stevens added, on those occasions when juries recommended death, elected Florida judges “sensitive to community sentiment,” were unlikely to disagree. Clearly, the hybrid procedure did not work to protect the rights of the defendant, as Florida argued. Rather, it led to a significant increase in the number of individuals sentenced to death.

In Hurst, the state argued that its sentencing scheme had been held constitutional in Spaziano v. Florida and, therefore, should be allowed to stand. Justice Sotomayor swept aside that argument. “Time and subsequent cases have washed away the logic” of that earlier decision, she declared. The Sixth Amendment requires a jury, not a judge, to find the facts necessary to impose a death sentence. Restoring the jury’s power might reduce the arbitrariness with which capital punishment is imposed and more clearly express the authentic voice of the community.

Still, Hurst’s impact is limited. Only a few of the 400 men and women now on Florida’s death row who were sentenced under the old scheme will have their sentence reduced to life imprisonment. Hurst’s case will be back before the Florida Supreme Court to determine whether the old sentencing procedure constituted a “harmless error.” He may never make it off death row. Hurst is not likely to change the national landscape of capital punishment.

Nearly a half-century has passed since the Court promised that death sentences could be administered consistently and fairly, but it is clear that the effort to meet that constitutional demand has failed. In the words of Justice Thurgood Marshall, the goal of eliminating arbitrariness “is plainly so doomed to failure that it – the death penalty – must be abandoned altogether.”

About the Author

Alan Rogers

Alan Rogers teaches U.S. Constitutional and Legal History at Boston College. His recent books include Murder and the Death Penalty in Massachusetts and The Child Cases: How America's Religious Exemption Laws Harm Children. On a sometimes happier note, he is a huge BC football fan.

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