The Supreme Court Strikes Down Florida's Blatantly Unconstitutional Capital Scheme

On Tuesday the Supreme Court decided Hurst v. Florida holding the Florida death penalty scheme unconstitutional under the Sixth Amendment. This should come as no surprise. As I wrote in this space earlier this year, the Florida statute is spectacularly, flamboyantly unconstitutional. It permits a judge to disregard a jury’s findings with regard to aggravation and mitigation and to substitute her own fact-finding regarding the defendant’s eligibility for death. At least since the Supreme Court decided Ring v. Arizona in 2002, determining that any fact which makes the defendant eligible for death must be found by a jury and beyond a reasonable doubt, it has been obvious to anyone who thinks carefully about these issues that the Florida statute could not survive constitutional scrutiny. (Justice Alito, who filed the sole dissent in Hurst, essentially argued that Ring had been wrongly decided, that in any event it should not be extended, and that any violation of Ring was harmless; he did not attempt to argue that the Florida scheme complied with Ring.)

Although the outcome in Hurst was never really in doubt, there are at least two big questions in its wake. First, what, exactly must a jury (rather than a judge) now decide in a capital case; and second, what are the consequences now for Hurst and every other defendant sentenced under a death penalty scheme that the Court has finally announced is unconstitutional?

The Jury Decides, But What?

Under Florida law, a defendant convicted of murder must be sentenced to life in prison unless it is proven that at least one aggravating factor was proven true and “there are insufficient mitigating circumstances to outweigh the aggravating circumstances.” Although the trial jury is charged with making these findings, it is clear that under Florida law that the jury’s findings are merely advisory and that the trial judge has the ultimate say on both issues. It is also clear after Hurst that, at least with regard to the finding of aggravating factors, the situating of final authority with the trial judge is constitutionally fatal. Without a finding of an aggravating factor, a defendant cannot be sentenced to death; thus, under a mechanical application of Ring, in order to comply with the Sixth Amendment the aggravating factor must be found true by a jury and beyond a reasonable doubt.

Whether Ring applies to the conclusion that the mitigating circumstances fail to outweigh the aggravating circumstances, however, is significantly more murky. Although the Court notes in passing that Florida law refers to both the aggravating factor finding and the finding that mitigation does not outweigh aggravation as “facts” that must be found before a death sentence can be imposed, the Court’s ultimate holding is merely that “Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.” (emphasis added) There is no mention in the Court’s conclusion of the fact that the judge, and the judge alone, is charged under Florida law with determining whether the case for mercy outweighs the case for death. It remains unclear how important this consideration is to the Court’s ultimate conclusion that the Florida statute fails to comply with the Sixth Amendment.

My colleague Justin Marceau and I have argued that, generally speaking, the weighing of aggravating and mitigating factors against one and other is a finding of fact to which the Ring jury requirement applies. Under a statute like Florida’s, a defendant is not eligible for the death penalty unless it is determined both that certain aggravating facts exist and that such aggravating factors outweigh any mitigating evidence introduced at sentencing; because this weighing is a finding of fact that makes a defendant eligible for death, Ring requires that they be found by a jury and beyond a reasonable doubt.

There is an irony in all of this. Unlike Florida which requires the weighing of aggravating factors against mitigating evidence, some states, like Georgia and Colorado, make explicit that the capital selection decision – should the defendant be sentenced to death or should he live? – is a purely individualized, moral determination not governed by weighing or rules. It seems clear that such judgments simply are not findings of fact which make a defendant eligible for increased punishment and thus that the Sixth Amendment does not require that they be made by juries rather than judges. While it can be argued that the conclusion that aggravating factors outweigh mitigating factors is a fact that makes the defendant eligible for murder, there is no parallel argument that a moral determination not to spare the defendant’s life is a finding of fact. If it seems unsettling that a state can avoid the mandate of Ring simply by making its penalty selection decision unbounded rather than governed by rules, the answer is supplied by Justice Breyer in his solo concurrence in Hurst: The Eighth Amendment, not the Sixth, mandates jury sentencing in a capital case.

Now What?

The Supreme Court remanded the case to the Florida courts for consideration of whether the failure to comply with Ring was harmless. This might seem like a perplexing inquiry. For the Court found in Hurst that the defendant had not been afforded the jury trial to which he was constitutionally entitled on the question of his death eligibility; how could the fact that Hurst was denied a jury on a question of life or death ever be constitutionally harmless? In his dissent, Justice Alito traces out an answer. Hurst was convicted of a gruesome slaying that took place in a fast food restaurant; when the body was discovered the safe had been emptied. After the jury convicted the defendant of murder and recommended death by a narrow 7-5 vote, the trial judge found true the two aggravating circumstances alleged – that the killing occurred in the course of a robbery and that it was “heinous, atrocious, or cruel.” The facts seemed to indicate that whomever did the killing also emptied the safe. Thus, an appellate court conclude, at least with regard to the robbery aggravating factor, that the jury’s rejection of the defendant’s alibi defense was a finding that he was the killer/robber who perpetrated the offense and that the finding of the robbery aggravating factor was implicit in their guilty verdict on the charge of first degree murder.

With regard to the atrocious, heinous, or cruel aggravator, however, the outcome is less clear. While the facts of the case were devastating – the victim was stabbed multiple times, including through the eyelid and in the throat – the fact that the killing was atrocious, heinous, or cruel was simply not put to the jury during the guilt phase. Moreover, given the opacity of jury verdicts in a Florida capital case, we cannot know how many of the twelve jurors found the aggravating circumstance to be true in their 7-5 advisory verdict on death. Thus, we cannot say with any confidence that the Hurst jury concluded that the atrocious, heinous, or cruel aggravating factor was satisfied. It denigrates the jury right to say that although a jury did not find beyond a reasonable doubt that a fact was true, we can nonetheless be satisfied that the failure to put the question to them was harmless because the government’s evidence on that point was overwhelming. That is simply not how the harmless error rule works. Thus, although the failure to separately submit the robbery aggravating factor to the jury for their final determination in this case might be harmless, the same cannot be true of the other aggravating factor in this case, or perhaps in the hundreds of other cases decided under the Florida scheme.

Which brings us to yet another conundrum. Who, among the 390 prisoners on Florida’s death row, can benefit from the holding of Hurst? Certainly those whose appeals are not yet final on appeal are entitled to benefit; the Supreme Court has consistently held that all new rules of criminal procedure are to be applied retroactively to those on direct appeal. A harder question is whether those who have already completed their direct appeals are entitled to benefit from the rule. The Supreme Court has already decided that Ring v. Arizona does not apply retroactively to those whose convictions are already final on appeal; it is certain to make the same holding with regard to Hurst. Such defendants would thus have to run a state and federal procedural gauntlet in order to prevail a Hurst claim. Moreover, Hurst’s reasoning invalidates the death sentences of inmates in other states, principally Alabama, where judicial override is also a possibility.

Thus, although the Supreme Court cleared away some truly unseemly underbrush in Hurst, cleaning up the mess that Florida and other states have made of the death penalty is likely to occupy the courts for years to come.

Image credit: Death row at Florida State Prison - Starke, Florida