by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. Last fall, Harvard University Press published his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.
The American death penalty is an outlier phenomenon. Fewer states are sentencing fewer people to death. Fewer counties are sentencing people to death within those states. But as outliers go, in the American death penalty world, Florida is in a class of its own. Florida allows, unlike any other state, a jury to be split, unexplained, and non-unanimous in its mere recommendation that the death penalty be imposed. Unlike any other state, Florida allows the judge then to make the actual factual determination that death should be imposed, not the jury. Now the Supreme Court is poised to decide whether this is constitutional.
The Court heard arguments last month in Hurst v. Florida, one of several death penalty cases on its docket this term. Timothy Hurst was charged with the murder of his co-worker at a Popeye's chicken restaurant. His conviction had already been reversed once because of the ineffective assistance his lawyer provided at his first trial. And the Court is apparently not entertaining the question whether he is intellectually disabled and, as a result, categorically ineligible for the death penalty, another important issue in the case.
Instead, there is a fundamental question whether the jury in his case really sentenced him to death. Formally, the judge did it. As former Solicitor General Seth Waxman put it at the oral arguments, “Under Florida law, Timothy Lee Hurst will go to his death despite the fact that a judge, not a jury, made the factual finding that rendered him eligible for death.” In Ring v. Arizona, in 2002, the Supreme Court overturned its earlier ruling in the 1990 case Walton v. Arizona, holding that the Sixth Amendment right to a jury trial entitles a defendant facing the death penalty to have the key aggravating factors making the case eligible for the death penalty found by a jury and not a trial judge. Just about every death penalty state readily complied with that ruling—except Florida.