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Analysis

In Florida, Only Seven Jurors Can Put You to Death

The other quirk in the state’s death penalty system.

Update 03:14 p.m. 10.14.2016

In a new decision, the Florida Supreme Court has ruled jurors in the state must be unanimous when they hand down death sentences.

The ruling will force the state's legislature to rewrite its death penalty laws, which were already revised earlier this year in the wake of the U.S. Supreme Court's decision in Hurst v. Florida.

Original Story

Earlier this week, the Supreme Court cast the entire death penalty system of Florida into doubt, ruling that judges cannot have the final say on what aspects of a murder make the murderer eligible for death.

But the court did not call attention to another major idiosyncrasy in the state’s laws: in Florida, when a jury votes in favor of the death penalty, their verdict doesn’t need to be unanimous. More than 10 percent of prisoners currently on Florida’s death row were sent there with the support of only seven out of 12 jurors.

Louisiana and Oregon allow a simple majority of a jury to convict someone of a crime, though not to hand down a death sentence. Alabama and Delaware allow judges to override juries and hand down death sentences themselves (and the new ruling may lead to renewed scrutiny of these states). But Florida’s process is one-of-a-kind, requiring only that more than six jurors find proof of an “aggravating circumstance” — an aspect of the crime that makes it more eligible for death — and that more than six recommend a death sentence1.

The Villages Daily Sun newspaper in central Florida recently collected and analyzed data demonstrating how the lack of unanimous juries has helped fill the state’s death row. Of the 390 condemned people in the state today, only 77 were sentenced to death based on the recommendation of a unanimous vote of a jury.

In 2002, the Supreme Court ruled in Ring v. Arizona that a jury, and not a judge, must pick out aggravating factors that make a murderer eligible for the death penalty. In response, three years later, the Florida Supreme Court told the state legislature it should pass a law requiring unanimous juries.

Since then, individual Florida lawmakers have filed bills demanding unanimous juries to make death recommendations. Stephen Harper, who runs the Death Penalty Clinic at Florida International University, says that such bills have failed to pass in part because lawmakers fear “if they tweak the laws at all, it’s going to invite a bunch of litigation.” Prosecutors have also contended that requiring a less-than-unanimous jury might have spared serial killers like Ted Bundy from execution — Bundy’s jury was split 10-2.

But now that litigation will come anyway. Tuesday’s Supreme Court decision will lead to a battle between prosecutors and defense attorneys over whether the ruling should be applied retroactively, casting into doubt the fate of nearly 400 prisoners on Florida’s death row.

Harper says this new ruling is an opportunity for the state legislature, which began its session this week, to address the “overall scheme, saying you need a unanimous jury, and it has to be the jury making the ultimate decision.” One of the sponsors of the latest bill to require unanimous jury votes in death penalty cases, state Rep. Jose Javier Rodriguez, a Miami Democrat, told the Sun Sentinel that the new Supreme Court decision “means we can fix our death penalty if the political will is there.”

Correction: An earlier version of this story cited an incorrect number for the people on Florida’s death row in cases where juries voted unanimously for the death sentence. That number is currently 77, not 78.