A bedrock principle of our Constitution is that those charged with a crime are guaranteed a trial by jury. This prudent provision restrains government power and guards against dangerous abuses of it.
Government officials cannot arbitrarily imprison or execute citizens, but first must prove their case to a jury of the defendant’s peers. Anything that undermines the legitimacy of jury verdicts necessarily poses a dangerous threat not only to our republic, but to the individuals who compose it.
Unfortunately, when it comes to perhaps the heaviest decision a jury can make – whether to sentence someone to death -- Florida law remains an outlier that increases the risk of fatal error and ultimately erodes trust in the state’s criminal justice system by not requiring a unanimous decision to invoke capital punishment.
Florida is the only state in the country that allows juries to sentence someone to death without a unanimous decision as well as an agreement by the majority on a single aggravating factor. In fact, only a simple majority – that is, 7 out of 12 jurors – have to agree on the sentence and find that an aggravator exists. The jurors don’t even have to agree on what the aggravator is.
As the former Florida chair of Young Americans for Liberty and recent college graduate composing the generation now taking the lead in politics, I am wary of this feature of Florida law that weakens the requirements for sentencing someone to death. Every other decision by a jury in a Florida court -- from a civil contract dispute to a traffic or misdemeanor trial –--requires unanimity. Given that the law requires unanimity when the stakes are not nearly as high, it makes no sense to lower the bar when a life hangs in the balance.
A complacent attitude to the current law is imprudent and dangerous. Too many unanimous juries, like those who convicted Henry Lee McCollum (and even the subsequent opinion reaffirming McCollum’s death sentence by Supreme Court Justice Scalia), have wrongfully sentenced the innocent or those with mental disability to death. The risk of such mistakes only increases when just a majority of jurors is necessary to approve the ultimate penalty. In fact, Florida has the dubious distinction of leading the nation in the number of individuals, 25 thus far, who have been sentenced to death and later released from death row after evidence of their wrongful conviction came to light.
Florida’s dysfunctional death penalty has gained the attention of the United States Supreme Court, which will consider in an upcoming case whether Florida’s current scheme for sentencing individuals to death is constitutional. There are good reasons why both the courts and Florida legislators are raising concerns about the state’s lack of a unanimous jury requirement for death sentences.
If a jury’s decision does not have to be unanimous, a jury simply can take a vote and decide to give a death sentence without discussing and wrestling with the reasons why some jurors object to a death sentence. How the State can sanction such haphazard mechanisms that facilitate the murder of an individual is astonishing to me. I must admit I was not aware of this process until someone educated me about it -- and every person I relay this information to is equally outraged, whether a college student, adult, colleague or teenager.
The data shows that a hastened deliberation process characterizes the way that juries in Florida operate when considering a death sentence. A study of jurors serving on death penalty cases in a number of states, including Florida, found that Florida had the highest percentage of juries to decide the sentence in an hour or less. When deliberation is cut short, the unfortunate consequence is that jurors spend less time considering all aspects of the case and clarifying important – but sometimes confusing – jury instructions.
It should come as no surprise that non-unanimous jury decisions in Florida death penalty cases have proven to be less reliable than unanimous decisions. Since 2006, the Florida Supreme Court has not overturned any 12-0 decisions by a jury to give a death sentence.
If Florida pushes ahead with death penalty prosecutions and trials, and then its statute is overturned the state will be forced to try each of these cases again. That will mean double the tax dollars spent to fund this already expensive program, which costs taxpayers millions of dollars a year.
The government already wastes enough tax dollars as it is -- let’s not waste even more on cases with a good chance of being overturned by a pending case.
Katharine Orr is the former Chair of the Florida Young Americans for Liberty and a 2015 graduate of the University of South Florida in Tampa.