After the break is my first cut at a post-Hurst fix for Florida's capital sentencing statute.
The usual conventions apply. Added language is in italics. Deleted language is in strikeout. Regular roman type is unchanged language.
921.141 Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.--
(1) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.--Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by s. 775.082. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge may summon a special juror or jurors as provided in chapter 913 to determine the issue of the imposition of the penalty. If the trial jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose, unless waived by the defendant. In the proceeding, evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (5) and (6). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the Constitution of the State of Florida. The state and the defendant or the defendant's counsel shall be permitted to present argument for or against sentence of death.
(2)ADVISORY SENTENCE VERDICT BY THE JURY.--
After hearing all the evidence, the jury shall deliberate and render a verdictan advisory sentence to the court, based upon the following matters:
(a) Whethersufficient one or more aggravating circumstances exist as enumerated in subsection (5) have been proved beyond a reasonable doubt;
(b) Whether sufficient aggravating circumstances exist to warrant a punishment of death;
(bc) Whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist; and
(cd) Based on these considerations, whether the defendant should be sentenced to life imprisonment or death.
(3) FINDINGSIN SUPPORT OF SENTENCE OF DEATH IN THE PENALTY PHASE.
(a) The jury's decision regarding whether one or more aggravating circumstances have been proved beyond a reasonable doubt must be unanimous. In making the determinations required by paragraphs (b) and (c) of subsection (2), each juror may consider any aggravating or mitigating circumstance he or she has individually found to exist by a preponderance of the evidence and may assign it as much or as little weight as he or she believes is appropriate. The jury's decision regarding whether the defendant should be sentenced to life imprisonment or death must be unanimous.
(b) If the jury unanimously finds that no aggravating circumstance has been proved beyond a reasonable doubt, the defendant shall be sentence to life imprisonment.
(c) If the jury is unable to agree unanimously on whether one or more aggravating circumstances has been proved beyond a reasonable doubt, the court shall dismiss the jury and impanel a new jury to retry the penalty phase.
(d) If the jury agrees unanimously that one or more aggravating circumstances has been proved beyond a reasonable doubt but is unable to agree unanimously on the penalty, the court shall receive the verdict as to aggravating circumstances, dismiss the jury, and impanel a new jury to hear evidence and make determinations according to paragraphs (b), (c), and (d) of subsection (2). If a second jury is unable to unanimously agree on the penalty, the jury shall report to the court how many jurors recommend a sentence of death and how many recommend a sentence of life imprisonment, and the court shall independently make the determinations required by paragraphs (b), (c), and (d) of subsection (2).
(e) Except as provided in paragraph (b) of this subdivision, the court may overturn the jury's verdict in the penalty phase if the facts suggesting a contrary verdict are so clear and convincing that virtually no reasonable person may differ. This standard applies equally whether the jury's final penalty determination was death or life imprisonment.
Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts:
(a) That sufficient aggravating circumstances exist as enumerated in subsection (5), and
(b) That there are insufficient mitigating circumstances to outweigh the aggravating circumstances.
In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact based upon the circumstances in subsections (5) and (6) and upon the records of the trial and the sentencing proceedings. If the court does not make the findings requiring the death sentence within 30 days after the rendition of the judgment and sentence, the court shall impose sentence of life imprisonment in accordance with s. 775.082.
(4) REVIEW OF JUDGMENT AND SENTENCE.--The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Florida and disposition rendered within 2 years after the filing of a notice of appeal. Such review by the Supreme Court shall have priority over all other cases and shall be heard in accordance with rules promulgated by the Supreme Court.
(5) AGGRAVATING CIRCUMSTANCES.--Aggravating circumstances shall be limited to the following:
(a) The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation.
(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.
(c) The defendant knowingly created a great risk of death to many persons.
(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any: robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disability, or permanent disfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing, or discharging of a destructive device or bomb.
(e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
(f) The capital felony was committed for pecuniary gain.
(g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
(h) The capital felony was especially heinous, atrocious, or cruel.
(i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.
(j) The victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties.
(k) The victim of the capital felony was an elected or appointed public official engaged in the performance of his or her official duties if the motive for the capital felony was related, in whole or in part, to the victim's official capacity.
(l) The victim of the capital felony was a person less than 12 years of age.
(m) The victim of the capital felony was particularly vulnerable due to advanced age or disability, or because
the defendant stood in a position of familial or custodial authority over the victim.
(n) The capital felony was committed by a criminal gang member, as defined in s. 874.03.
(o) The capital felony was committed by a person designated as a sexual predator pursuant to s. 775.21 or a person previously designated as a sexual predator who had the sexual predator designation removed.
(p) The capital felony was committed by a person subject to an injunction issued pursuant to s. 741.30 or s. 784.046, or a foreign protection order accorded full faith and credit pursuant to s. 741.315, and was committed against the petitioner who obtained the injunction or protection order or any spouse, child, sibling, or parent of the petitioner.
(6) MITIGATING CIRCUMSTANCES.--Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior criminal activity.
(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant's conduct or consented to the act.
(d) The defendant was an accomplice in the capital felony committed by another person and his or her participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination of another person.
(f) The capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the crime.
(h) The existence of any other factors in the defendant's background that would mitigate against imposition of the death penalty.
(7) VICTIM IMPACT EVIDENCE.--Once the prosecution has provided evidence of the existence of one or more aggravating circumstances as described in subsection (5), the prosecution may introduce, and subsequently argue, victim impact evidence to the jury. Such evidence shall be designed to demonstrate the victim's uniqueness as an individual human being and the resultant loss to the community's members by the victim's death. Characterizations and opinions about the crime, the defendant, and the appropriate sentence shall not be permitted as a part of victim impact evidence.
(8) APPLICABILITY.--This section does not apply to a person convicted or adjudicated guilty of a capital drug trafficking felony under s. 893.135.
921.141 Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.--
(1) SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.--Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by s. 775.082. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge may summon a special juror or jurors as provided in chapter 913 to determine the issue of the imposition of the penalty. If the trial jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose, unless waived by the defendant. In the proceeding, evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (5) and (6). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the Constitution of the State of Florida. The state and the defendant or the defendant's counsel shall be permitted to present argument for or against sentence of death.
(2)
After hearing all the evidence, the jury shall deliberate and render a verdict
(a) Whether
(b) Whether sufficient aggravating circumstances exist to warrant a punishment of death;
(
(
(3) FINDINGS
(a) The jury's decision regarding whether one or more aggravating circumstances have been proved beyond a reasonable doubt must be unanimous. In making the determinations required by paragraphs (b) and (c) of subsection (2), each juror may consider any aggravating or mitigating circumstance he or she has individually found to exist by a preponderance of the evidence and may assign it as much or as little weight as he or she believes is appropriate. The jury's decision regarding whether the defendant should be sentenced to life imprisonment or death must be unanimous.
(b) If the jury unanimously finds that no aggravating circumstance has been proved beyond a reasonable doubt, the defendant shall be sentence to life imprisonment.
(c) If the jury is unable to agree unanimously on whether one or more aggravating circumstances has been proved beyond a reasonable doubt, the court shall dismiss the jury and impanel a new jury to retry the penalty phase.
(d) If the jury agrees unanimously that one or more aggravating circumstances has been proved beyond a reasonable doubt but is unable to agree unanimously on the penalty, the court shall receive the verdict as to aggravating circumstances, dismiss the jury, and impanel a new jury to hear evidence and make determinations according to paragraphs (b), (c), and (d) of subsection (2). If a second jury is unable to unanimously agree on the penalty, the jury shall report to the court how many jurors recommend a sentence of death and how many recommend a sentence of life imprisonment, and the court shall independently make the determinations required by paragraphs (b), (c), and (d) of subsection (2).
(e) Except as provided in paragraph (b) of this subdivision, the court may overturn the jury's verdict in the penalty phase if the facts suggesting a contrary verdict are so clear and convincing that virtually no reasonable person may differ. This standard applies equally whether the jury's final penalty determination was death or life imprisonment.
(a) That sufficient aggravating circumstances exist as enumerated in subsection (5), and
(b) That there are insufficient mitigating circumstances to outweigh the aggravating circumstances.
In each case in which the court imposes the death sentence, the determination of the court shall be supported by specific written findings of fact based upon the circumstances in subsections (5) and (6) and upon the records of the trial and the sentencing proceedings. If the court does not make the findings requiring the death sentence within 30 days after the rendition of the judgment and sentence, the court shall impose sentence of life imprisonment in accordance with s. 775.082.
(4) REVIEW OF JUDGMENT AND SENTENCE.--The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Florida and disposition rendered within 2 years after the filing of a notice of appeal. Such review by the Supreme Court shall have priority over all other cases and shall be heard in accordance with rules promulgated by the Supreme Court.
(5) AGGRAVATING CIRCUMSTANCES.--Aggravating circumstances shall be limited to the following:
(a) The capital felony was committed by a person previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation.
(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.
(c) The defendant knowingly created a great risk of death to many persons.
(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any: robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disability, or permanent disfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing, or discharging of a destructive device or bomb.
(e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
(f) The capital felony was committed for pecuniary gain.
(g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
(h) The capital felony was especially heinous, atrocious, or cruel.
(i) The capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.
(j) The victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties.
(k) The victim of the capital felony was an elected or appointed public official engaged in the performance of his or her official duties if the motive for the capital felony was related, in whole or in part, to the victim's official capacity.
(l) The victim of the capital felony was a person less than 12 years of age.
(m) The victim of the capital felony was particularly vulnerable due to advanced age or disability, or because
the defendant stood in a position of familial or custodial authority over the victim.
(n) The capital felony was committed by a criminal gang member, as defined in s. 874.03.
(o) The capital felony was committed by a person designated as a sexual predator pursuant to s. 775.21 or a person previously designated as a sexual predator who had the sexual predator designation removed.
(p) The capital felony was committed by a person subject to an injunction issued pursuant to s. 741.30 or s. 784.046, or a foreign protection order accorded full faith and credit pursuant to s. 741.315, and was committed against the petitioner who obtained the injunction or protection order or any spouse, child, sibling, or parent of the petitioner.
(6) MITIGATING CIRCUMSTANCES.--Mitigating circumstances shall be the following:
(a) The defendant has no significant history of prior criminal activity.
(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant's conduct or consented to the act.
(d) The defendant was an accomplice in the capital felony committed by another person and his or her participation was relatively minor.
(e) The defendant acted under extreme duress or under the substantial domination of another person.
(f) The capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired.
(g) The age of the defendant at the time of the crime.
(h) The existence of any other factors in the defendant's background that would mitigate against imposition of the death penalty.
(7) VICTIM IMPACT EVIDENCE.--Once the prosecution has provided evidence of the existence of one or more aggravating circumstances as described in subsection (5), the prosecution may introduce, and subsequently argue, victim impact evidence to the jury. Such evidence shall be designed to demonstrate the victim's uniqueness as an individual human being and the resultant loss to the community's members by the victim's death. Characterizations and opinions about the crime, the defendant, and the appropriate sentence shall not be permitted as a part of victim impact evidence.
(8) APPLICABILITY.--This section does not apply to a person convicted or adjudicated guilty of a capital drug trafficking felony under s. 893.135.
I would add a preamble:
"WHEREAS, it is the sense of the people of Florida that the US Supreme Court is responsible for the deplorable state of capital punishment law in the United States with its constant revisions;
WHEREAS, it is the sense of the people of Florida that the constant revisions demonstrate the lawlessness of the US Supreme Court;
WHEREAS, the opinion in Hurst is poorly drafted and insulting to the people of Florida; and
WHEREAS, the people of Florida, wish to retain the ability to impose the highest punishment on capital murderers;
IT IS THEREFORE ENACTED . . . .
Unfortunately, I believe that, thus far, only one bill has been filed in Florida to correct this. That, by (state) Sen Thad Altman (R), who is a death penalty opponent, would require a unanimous jury verdict, and further, would require each aggravating circumstance to be found by the jury a) beyond a reasonable doubt b) by unanimous verdict c) each aggravating circumstance be specified on the jury form and that jury form specify that the listed aggravating circumstances outweigh those mitigating circumstances "found to exist."
His bill was introduced prior to the decision in Hurst, but he has indicated he intends to modify the language to comply with the USSC decision. However, the key components remain as stated.
Sen Altman is quite open in suggesting that, while public opinion supports capital punishment, because his personal belief opposes it, he has constructed his bill in such a way as to minimize the application of the death penalty in Florida.
Sen Altman holds very liberal positions on a number of issues, and is term limited for the state senate after the current cycle. He plans to run for the U S House in 2018.