In 1976, the U.S. Supreme Court reviewed and approved the Florida system of capital punishment in Proffitt
. In that system, the jury enters the verdict of guilt of first-degree murder and makes a recommendation on sentence, but the trial judge makes the final decision on sentence and makes the essential finding that at least one "aggravating circumstance" exists.
The Florida Supreme Court added a gloss that the judge's "override" would, in practice, only work in one direction. A jury recommendation of life in prison was essentially final, while a jury's recommendation of death could be overridden. The Florida system is thus more favorable to the defendant than leaving the decision to the jury alone.
Over the years, the Supreme Court more than once rejected claims that this system or the similar systems of other states violated anything in the Constitution. Then in the 2002 case of Ring
, the Supreme Court stabbed the states and the people in the back and simply changed its collective mind, accepting the argument it had previously, unequivocally rejected. Stare decisis, the principle of observing precedent, was thrown overboard, and the decision did not even mention the massive reliance of the states on the earlier decisions.
Most of the states with similar systems went with jury verdicts on both the aggravating circumstance and the final sentencing decision, although Nebraska kept a hybrid system where the jury finds the circumstance and three judges find the sentence.
The Florida Legislature stuck with its system, hoping that the courts would find it distinguishable from the Arizona system struck down in Ring
, a foolish and unnecessary risk. In most capital cases the existence of at least one aggravating circumstances is perfectly obvious, and there is virtually no cost in having the jury go ahead and make the finding. Today the U.S. Supreme Court decided 7-1-1 in Hurst v. Florida
that the Florida system does indeed violate Ring
How many of the existing judgments can be salvaged? The Supreme Court said it left harmless error analysis to the state courts. In many cases, a jury verdict on a concurrent or prior crime can establish an aggravating circumstance. Today's decision will be fully retroactive for cases on direct appeal, but its application to cases on collateral review is uncertain.
The first thing the Florida Legislature needs to do is fix its system. And do it right this time.