In January 2016, in a case called Hurst v. Florida, the United States Supreme Court held that Florida’s death penalty scheme was unconstitutional and violated the Sixth Amendment, pursuant to its decision in Ring v. Arizona.
The Court held that Florida’s statutory scheme was flawed because it failed to require the jury, rather than the sentencing judge, to make findings of aggravating circumstances relied upon by the state to justify imposition of the death penalty. Ring first established that principle in 2002.
On remand in Hurst, the Florida Supreme Court followed the Supreme Court’s mandate and further held that to be constitutional under both the federal and state constitutions, the death penalty statutory scheme must require unanimous findings by a jury on aggravators, as well as to a recommendation of death. Because the Florida high court relied upon the Florida Constitution, its decision on unanimity is not reviewable by the U.S. Supreme Court. State high courts have the final say on state constitutions.
What may be overlooked in the aftermath of these decisions is the shocking fact that after the decision in Ring v. Arizona in 2002, some 47 persons have been put to death in Florida under an unconstitutional process. And while many may assess the blame as falling on Florida’s three branches of government for not acting after Ring to correct Florida’s statute, it is apparent that a large share of the blame rests with the discretionary review procedures of the U.S. Supreme Court.
Let me explain. Following the decision in Ring, many Florida death row inmates petitioned the Florida courts, including the Florida Supreme Court, to apply Ring and invalidate Florida’s death penalty scheme. However, relying on prior U.S. Supreme Court decisions generally upholding Florida’s scheme, Florida’s high court denied relief.
But many of these disappointed death row inmates sought further relief in the U.S. Supreme Court. Surprisingly, despite the clear holding in Ring, the Court inexplicably rejected these appeals, until finally, the Court accepted review in Hurst and specifically held Florida’s scheme unconstitutional under Ring. These many unexplained denials also sent a false signal that despite Ring, Florida’s scheme might be valid.
Tragically, in the 13 years since Ring, some 47 persons have been executed in Florida under an unconstitutional statute. Had the U.S. Supreme Court accepted review of a Florida case soon after Ring, those executions may arguably not have occurred – at least not until further review for harmless error, waiver or some other possible argument by the state was first evaluated. But none of that took place.
Of course, the U.S. Supreme Court has absolute discretion in deciding what cases to review. And ordinarily those decisions cannot be challenged. But, surely the exercise of this discretionary review authority should take into account the fact that lives hang in the balance.
As the high court itself has observed, “death is different.” Or is it?
Harry Lee Antstead is a retired justice and Chief Justice of the Florida Supreme Court.