Florida Law Eliminating Unanimity for Death Penalty is Problematic in Many Ways

MESSAGE FROM THE PUBLISHER

From time to time there are points of interest that I feel supersede that  which I would like to say, and this is one of those moments. Attorney Johnny L. McCray, Jr. really brings to our attention the need for us to questioned the motives of Ronald Dion DeSantis and his need to sign into law a Florida bill eliminating unanimous jury decisions. Please read his thoughts which are back by facts and reasons that point to the problematic nature of an aspiring fascist.

– Bobby R. Henry, Sr.

Florida Law Eliminating Unanimity for Death Penalty is Problematic in Many Ways

For several years, Florida, like 26 other states, required a unanimous vote before imposing the death penalty after a conviction for a capital felony. Recently, Gov. Ron DeSantis, who is expected to announce his candidacy for President, signed into law a bill which allows juries to recommend a death sentence with an 8-4 vote. Florida has now become the most extreme death penalty state. Previously, Alabama was the only state which allowed a divided jury to send criminals to death row if 10 of 12 jurors recommend it. As expected, Florida’s change has generated renewed debate about its use of capital punishment.

It appears the change in Florida Law was prompted by the outcome in the case of Stoneman Douglas shooter, Nikolas Cruz. After three jurors decided that Cruz’ life should be spared, DeSantis has been advocating for legislation which would allow the death penalty to be imposed with less than a unanimous verdict.

While the goal of the new law is to make it easier to impose a death sentence, the law has generated controversy because of its potential impact on the rights of defendants and concerns about racial bias and fairness. Those opposed to the law say it will lead to more innocent people being put on death row. The opponents have good reason for their apprehension.

First, Florida leads the nation in death row exonerations with 30 people exonerated since the state brought back capital punishment in the 1970s. Not surprisingly, of those 30, 17 were Black and five were Hispanic. That should tell us something.

Jury unanimity doesn’t eliminate wrongful convictions and executions, but lowering the standard as DeSantis expressed only increases the opportunity for errors that could result in wrongful executions by the state. Maria DeLiberato, Director of Floridians for Alternatives to the Death Penalty (FADP), states that “non-unanimity leads to wrongful convictions with more than 93 percent of our wrongful convictions were non-unanimous verdicts.”

Lowering the standard to eight votes is dangerous enough in a state that has the nation’s highest number of death row exonerations, is at best counter intuitive and, at worst, dangerously irresponsible. There is no do-over for executing an innocent person.

Second, the law was passed very quickly and with little public discourse. The bill appears to have been rushed through the legislative process without adequate review or debate. Criminal defense attorneys and other legal experts have opined that the manner in which the bill was passed undermines principles of due process and transparency in our justice system.

Enacting legislation because of a single case, regardless of the horrific nature of the case, is a short-sighted and dangerous overreaction. Unfortunately, it appears that DeSantis’ presidential aspirations may have contributed to the hasty enactment of this legislation.

I am confident the new law will face legal challenges due to similar laws having previously been ruled unconstitutional. However, the new law poses significant short-term issues, including more people being sent to death row and a stark increase in wrongful convictions.

Third, there are widespread concerns about racial bias and the fairness with the imposition of the death penalty in Florida. Studies have shown that there is a troubling correlation between race and the imposition of death sentences, with black defendants being disproportionately sentenced to death compared to their white counterparts. Eliminating the unanimity requirement before imposing the death penalty would undoubtedly exacerbate the racial disparities.

One of the first lines of defense against miscarriages of justice is a diverse, representative jury. Black jurors are often excluded from death penalty cases because many Blacks are unwilling to impose a death sentence. The new law would permit a White eight-person majority to effectively silence the Black or Brown voices on a jury.

As a citizen, a black man who happens to be a criminal defense trial lawyer of more than 40 years, I am concerned about the impact of the new law which eliminates the unanimity requirement in death penalty cases in favor of a “super majority” jury vote. We, as a community, must exercise our right to vote and remove those elected public officials who seek to establish and impose laws that are arbitrary, aberrant, have a disparate impact on persons of color, are a step backward, and compromise fairness. Deciding to execute a human being — no matter how heinous the crime — is a grave matter. It should be the product of deep debate and contemplation. It legally requires careful consideration of mitigating factors, such as mental illness or trauma. It ought to result from the agreement, even after hard-fought debate, of a unanimous jury — jury unanimity is an entrenched value of American justice.

Johnny L. McCray, Jr., Esq. Is a licensed member of the Florida Bar since 1982 and practices major felony trial work. His office is Pompano Beach.