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U.S. Supreme Court will review Florida capital sentencing procedure

Guest post by Ian:

Today the U.S. Supreme Court granted review to determine the constitutionality of Florida's capital sentencing procedure because that procedure involves findings as to aggravating circumstances by the court after a majority of the jury recommends a sentence in a capital case. The U.S. Supreme Court specified the question for review as: "Whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U.S. 584 (2002)." Hurst v. Florida, 2015 WL 998606 (no. 14-7505) (March 9, 2015); opinion below, 147 So.2d 435 (Fla. 2014).

The U.S. Supreme Court only rarely specifies the question for review itself and that often occurs when the Court wants the latitude to consider overruling prior precedent. This case is on direct appeal from a re-sentencing trial at which Hurst challenged the constitutionality of Florida's capital sentencing procedure. Therefore, there is no limitation on the Court's authority to create new law in this case. The Florida capital sentencing procedure is substantially different from the procedure employed by most death penalty States. Therefore, the Court's ruling in this case is not likely to affect death penalty cases in those other States. However, we can expect that attorneys representing prisoners in capital cases will argue the contrary.
Ring v. Arizona declared Arizona's pure judge sentencing in capital cases unconstitutional and overruled a prior case upholding the Arizona capital sentencing procedure and held that a jury must find the existence of an aggravating circumstance beyond a reasonable doubt, but did not expressly overrule pre-Ring cases upholding Florida's mixed jury and judge capital sentencing, e.g., Hildwin v. Florida, 490 U.S. 638 (1989)(per curiam), and Spaziano v. Florida, 468 U.S. 447 (1984). It seemed to me that Hildwin was implicitly overruled, but the U.S. Supreme Court itself has cautioned against viewing its precedents as implicitly overruled, especially when cases are on collateral attack.

The Ring ruling would allow a State to direct that the court determine whether to impose a death sentence after the jury found the aggravating circumstance beyond a reasonable doubt. The Ring ruling does NOT require a jury to decide the actual sentence. I doubt whether the question presented will allow the U.S. Supreme Court to address the Florida inconsistency in requiring a unanimous jury verdict on some sentencing enhancement factors in non-capital cases but not aggravating circumstances because that would appear to be an issue under the Due Process Clause or Equal Protection Clause. The U.S. Supreme Court has held that the Ring ruling is not retroactive as to those cases already final on direct appeal when Ring was decided, i.e., does not apply to cases on collateral attack under the non-retroactivity doctrine per Teague v. Lane, 489 U.S. 288 (1989), in Schriro v. Summerlin, 542 U.S. 348 (2004).

The Florida capital sentencing process is discussed and explained in the opinion of Justice Shaw, concurring the result in Bottoson v. Moore, 833 So.2d 693, 712-713 (Fla. 2002). Under the Florida capital sentencing procedure, at least seven of twelve jurors are required to vote for a death sentence, but six of twelve may recommend a prison sentence. The trial court must issue findings on the existence of aggravating circumstances beyond a reasonable doubt and must issue findings on mitigating circumstances found to exist by preponderance of the evidence, and then must determine whether aggravating circumstances outweigh mitigating circumstances. Florida prohibits consideration of non-statutory aggravating circumstances. However, in non-capital cases, Florida law requires that the jury unanimously determine the existence of sentence enhancement factors beyond a reasonable doubt. However, the U.S. Supreme Court has held that States are not constitutionally required to adopt a unanimous jury verdict law, see Apodaca v. Oregon, 406 U.S. 404 (1972)(upholding a state law that permitted a 9-3 jury verdict of guilty in a criminal case).

The U.S. Supreme Court has never addressed the number of jurors required to agree on a sentence enhancement factor, but since Apprendi held that most sentencing enhancement factors are the same as elements of the crime, the Apodaca ruling that apparently requires at least a 3/4 majority would apply to findings of aggravating circumstances.

The Florida Supreme Court held that the Ring ruling did not make the Florida capital sentencing procedure unconstitutional in Bottoson v. Moore, 833 So.2d 693 (Fla. 2002)(per curiam), and King v. Moore, 831 So.2d 143 (Fla. 2002)(per curiam). These cases were on collateral attack in state court, and a majority of the Justices filed separate opinions explaining why each declined to invalidate the death sentences in those cases (in some opinions relying upon non-retroactivity per Teague v. Lane, 489 U.S. 288 (1989), and in some opinions explaining that the particular justice declined to declare the Florida procedure unconstitutional because Hildwin v. Florida was not expressly overruled). The Eleventh Circuit applying the limitation under 28 U.S.C. Section 2254(d)(1) that prohibited applying or creating new constitutional law on federal habeas review refused to declare the Florida capital sentencing procedure unconstitutional in light of the failure by the U.S. Supreme Court to expressly overrule its prior rulings that upheld the Florida capital sentencing procedure. Evans v. Secretary, Florida DOC, 699 F.3d 1249 (11th Cir. 2012).

In some Florida capital cases, the aggravating circumstance is based upon the defendant's prior criminal record of felony convictions for violent crimes. Under Apprendi v. New Jersey, 530 U.S. 466 (2000), a sentencing court may determine the existence of the defendant's prior criminal record of convictions as a sentence enhancement factor, which is the only type of sentence enhancement factor exempt from jury fact finding. The Ring ruling was based upon the Apprendi ruling; so in theory that same exemption applies to an aggravating circumstance for the death penalty. However, in Hurst's case, there was no finding based upon a criminal conviction as a sentencing factor. Therefore, the State cannot make that argument in Hurst's case.

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