By Noreen Marcus, FloridaBulldog.org
With the Donald Dillbeck execution on Feb. 23, another one set for April 12 and many more inmates he can condemn at will, Gov. Ron DeSantis is using his death warrant power to brand himself as Florida’s chief avenger.
The presidential aspirant is channeling popular outrage at the November life sentence for Parkland high school killer Nikolas Cruz because three jurors on a 12-member panel thwarted the executioner by voting that Cruz should spend the rest of his life in prison.
At the moment in Florida – but probably not for long – the ultimate punishment that so many wanted for Cruz requires a unanimous jury vote.
“I don’t think justice was served in that case,” DeSantis said after the Cruz trial. “If you’re going to have capital [punishment], you have to administer it to the worst of the worst crimes.” In a meeting with sheriff’s officials he suggested a “super-majority” of eight out of 12 jurors should suffice to determine a capital convict’s fate.
Now the Republican Legislature is turning DeSantis’ idea into law. It is expected to pass a bill requiring only an 8-4 vote for a death sentence.
And the conservative Florida Supreme Court appears poised to reject any challenge to the new law out of deference to the Legislature.
The justices have already set the stage for a radical change in capital sentencing. In 2020 the court reversed its own “erroneous” decisions that required unanimous death sentences. “Under these circumstances, it would be unreasonable for us not to recede” from bad rulings, the court’s 6-1 majority opinion in State v. Poole says.
EXECUTION ON FAST TRACK
What’s at stake is the importance of a jury’s role in deciding whether someone convicted of a capital offense should live or die. The smaller the jury’s scope, the greater the judge’s and the weaker the bedrock principle of trial by jury, according to decisions from the U.S. Supreme Court.
That philosophy inspired the high court’s opinion in the case of Hurst v. Florida, the 2016 landmark that ordered Florida to clean up its act in death penalty sentencing. The court rejected Florida’s approach because it didn’t give jurors enough of a say in determining all the factors that go into sentencing or in recommending the sentence itself.
The Florida Supreme Court assented and the Legislature responded by changing the law to require unanimity.
Then came the Poole decision in 2020, with its indignant dissent from Justice Jorge Labarga. No one questions the rule that a jury’s guilty verdict in a capital case must be unanimous, he wrote.
“It defies reason to require unanimous juries for the conviction of a capital offense but to then reduce the jury’s collective obligation when determining whether the defendant’s life should be taken as punishment for that offense,” Labarga wrote. “In the strongest possible terms, I dissent.”
There may be more death warrants in the near future like the one DeSantis issued March 13 for convicted double murderer Louis Gaskin. His appeal is on a fast track in the Florida Supreme Court, with briefs from both sides due by 3 p.m. Friday, March 31.
There are 296 men and three women on Florida’s Death Row. Gaskin is one of dozens of inmates who were sent there on 8-4 jury votes before the Hurst decision forced Florida to rework its sentencing procedure. That’s the group DeSantis seems to be targeting with warrants this year, as if laying the groundwork for the new law.
FLORIDA AN ‘OUTLIER’ AGAIN?
More DeSantis warrants and executions in quick succession “would not surprise me. I think that’s the plan,” said Richard Dieter, executive director of the nonprofit Death Penalty Information Center in Washington, D.C.
He said the governor’s presidential ambitions seem to be driving his death penalty strategy. DeSantis isn’t an announced candidate yet, but he’s running a national campaign supported by anti-Donald Trump Republicans.
“It’s amping up the death penalty prior to the nominations and elections because DeSantis feels that’s a badge he wants to wear,” Dieter said.
“Laws are being changed in drastic ways just as DeSantis is starting up executions. It does smack of manipulation of the issue rather than due process,” he said.
Before the 2016 course correction, Florida was an “outlier” in its capital sentencing scheme; the new 8-4 law would be even looser than Alabama’s unique 10-2 requirement. Since all other states mandate unanimity in capital sentencing, it appears Florida is on track to reclaim its rogue status.
The sentencing change and other proposed revisions of death penalty law are deeply regressive, according to Dieter. “Florida is about to take a step backwards to the way the death penalty used to be in the 1940s,” he said.
The new sentencing rules would have negative consequences not only for convicted murderers but for victims’ survivors, said Edith Georgi. During 35 years with the Miami-Dade Public Defender’s Office, she litigated many death penalty cases.
“A step backwards will just muck up appeals for death-sentenced people and thus exacerbate the trauma to victims’ families for more years to come,” Georgi said, adding that it will waste money and other resources.
“Going back to non-unanimity, especially in view of the national trends, will make Florida’s death penalty law even more arbitrary and aberrant,” she said.
“This may even create a new category of people eligible for appeal – ‘yo-yos,’ folks who were eligible (after a non-unanimous vote) then not eligible (after Hurst) and are now eligible again,” Georgi said.
JUSTICE POLSTON’S ABRUPT EXIT
While the Supreme Court deals with the Gaskin execution appeal, it’s experiencing some internal drama. After almost 15 years on the court, Justice Ricky Polston resigned on March 20.
Polston, 67, could have served until the mandatory retirement age of 75. He offered no explanation for his departure in a brief note that gave only 10 days’ notice. The justice did not respond to an email from Florida Bulldog asking why he’s leaving.
“I’m shocked,” said Florida Supreme Court historian Neil Skene. “I can’t think of any case, outside of the impeachment investigations of 1973, where there was a sudden departure.”
Polston, who was chief justice from July 2012 to July 2014, was regarded as a reliable conservative, generally joining forces with Justice Charles Canady. Both voted in the Poole case to reverse death penalty opinions written by liberal justices, for example.
So it was noteworthy when Canady and Polston took opposing sides in the case of Alvin Davis, a convicted felon who had been sentenced to 15 years for firearms possession. The trial judge increased Davis’ sentence because he failed to express remorse, a ruling Canady approved in his opinion for the 5-2 majority.
Along with Labarga, Polston dissented. “Showing remorse is admitting you did something wrong—an admission of guilt. And increasing a defendant’s sentence based on the failure to show remorse is punishing a defendant for failing to admit guilt,” he wrote in his Dec. 2, 2021 dissent.
Polston concluded, “Punishing someone unless they confess guilt of a crime is a violation of due process and the right against self-incrimination.”