Non-unanimous Florida juries have sent nearly 300 people to death row.

Nearly 300 People Have Been Sent to Florida’s Death Row by Non-Unanimous Juries

Nearly 300 People Have Been Sent to Florida’s Death Row by Non-Unanimous Juries

The truth about the criminal justice system.
March 16 2017 6:48 PM
FROM SLATE AND THE FAIR PUNISHMENT PROJECT

Death by Non-Unanimous Jury

In Florida, nearly 300 people have been sent to death row despite dissenting votes. It’s up to state prosecutors to right that wrong.

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Orange-Osceola State Attorney Aramis Ayala.

Aramis Ayala for State Attorney

On Thursday, the newly elected state attorney representing Florida’s Orange and Osceola counties spoke out publicly against the death penalty, promising not to seek it in future cases. It was a momentous stance for a prosecutor to take in a state that has long been extremely aggressive in sentencing people to death.

“While I have discretion to pursue the death penalty, I have determined that doing so is not in the best interest of the community or the best interest of justice,” Aramis Ayala said in a press conference. “Florida’s death penalty has been the cause of considerable legal chaos, uncertainty, and turmoil.”

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Ayala, Florida’s first black elected state attorney, presides over the judicial circuit that includes Orlando. She is thus far the only prosecutor in the state to categorically refuse to seek the death penalty. Yet her pronouncement isn’t the only reason Florida’s death penalty is in a state of uncertainty. Other prosecutors in the state are now facing a serious dilemma about how to deal with the roughly 285 people on death row whose death sentences are in limbo.

Consider the case of Emilia Carr. In 2011, by a vote of 7–5, a Florida jury sentenced Carr to death. She had been in a tumultuous on-and-off relationship with a man named Joshua Fulgham when Fulgham’s wife was murdered. Fulgham was notoriously abusive—police had previously arrested him for assaulting his wife and threatening to kill her—and evidence indicated that he hatched the plan. Still, the jury in his trial recommended a life sentence. A narrow majority of Carr’s jurors, on the other hand, recommended execution, despite a total absence of forensic evidence linking her to the murder.

Carr had led a difficult life. She was sexually abused by her father, who went to prison for the abuse. Carr’s father also pleaded guilty to solicitation to commit murder against Carr and two other women.

Carr married young and had children—she was eight months pregnant with her fourth when she was sentenced to death—and by all accounts, she was a devoted mother. But Fulgham was dominating and cruel, and Carr’s past made her an easy target. The jury at her trial never got to hear much detail about the trauma she had endured throughout her life. Still, even without the full picture of abuse and trauma, five jurors did not believe she should be sentenced to death.

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Today, the 32-year-old Carr is one of the youngest women in America on death row. She lives in a solitary cell, where she spends nearly 24 hours a day. She does not see her four children.

Until recently, Florida was one of the only states that allowed a non-unanimous jury to sentence someone to death. But last October, the Florida Supreme Court ruled it unconstitutional to sentence someone to death without unanimous jury support. This week, Gov. Rick Scott signed a bill requiring jury unanimity in death row cases.

Unaddressed in the new legislation were inmates such as Carr, whose death row sentences were decided under the old law. Now, Florida’s 20 elected prosecutors must decide what to do about the 75 percent of death row inmates who were sentenced by non-unanimous juries. Should they be resentenced to life without parole, or should the state spend time and money trying to get unanimous juries to sentence them to death?

The prosecutors’ predicament is a problem of their own making. They should have seen this sea change coming 15 years ago. The first clue came in 2002, when the U.S. Supreme Court ruled in Ring v. Arizona that under the Sixth Amendment, a jury, not a judge, had to determine that someone should be sentenced to death.

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Immediately after Ring, lawyers in Florida began to challenge the constitutionality of the state’s non-unanimous jury rule, which permitted defendants such as Carr to be sentenced to death by a vote of 7–5. At that time, only two other states permitted a death penalty sentence by such a slim margin, and the Florida Supreme Court was clearly concerned by Florida’s outlier position. (In August, the Delaware Supreme Court found that the state’s law violated the Constitution, while the Alabama Supreme Court ruled four months later that its state law did not.) In a 2005 case, Justice Raoul Cantero wrote that he “wholeheartedly” supported a “reevaluation of Florida’s capital sentencing scheme to determine whether jurors should be required to unanimously decide whether death should be imposed.”

Despite these challenges, Florida’s prosecutors waved off concerns, continuing to sentence people to death even when up to five jurors believed that was the wrong decision. A month after the Ring decision, a lawyer for the Florida Prosecuting Attorneys Association told the St. Petersburg Times that his conversations with prosecutors had led him to believe there was nothing to worry about. “Overall,” he said, “everyone feels the Florida system is in good shape.”

Then, in January 2016, the U.S. Supreme Court tightened the reins again. In Hurst v. Florida, the court found that a jury cannot have a mere advisory role in determining the mitigation or aggravating factors necessary to sentence a person to death. The inevitability of the unanimous jury requirement loomed closer.

Yet the Florida Prosecuting Attorneys Association still refused to support any move toward unanimous jury verdicts. As Florida legislators worked to draft a new law that would pass Supreme Court muster, prosecutors kept fighting to keep the non-unanimous death sentence alive, pushing for a 9–3 “supermajority” jury vote to impose the death penalty.

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Their protests carried weight. The legislature once again failed to implement a unanimous jury requirement, hastily passing a bill in May that instead required a 10–2 vote in favor of death. “Prosecutors made it clear that they didn’t want it to be unanimous, and the legislature went along,” said Florida Sen. Randolph Bracy, a Democrat from Orlando who fought against the bill.

But for Florida prosecutors, this legislative win was temporary. In October, the Florida Supreme Court ruled that only a unanimous jury can impose the death penalty. Since then, the death penalty has remained in moratorium until the state legislative session begins.

All eyes are now on Florida’s 20 elected state attorneys, who must decide what to do with the hundreds of cases in which people were sent to death row by non-unanimous juries. They must consider how expensive and time-consuming retrials would be, and they must consider the emotional toll they would take on victims’ loved ones, who already had to sit through the harrowing sentencing process once and were promised that the death sentence would mean justice. Now, they must live through the possibility of these sentences being discarded. As Ayala stated in her press conference on Thursday, “There is no justice when victims are being misled about an end that I doubt will occur.”

Florida prosecutors must also consider the decreasing appetite—both in Florida and in the country—for the death penalty. In 1996, America doled out 315 death sentences. Last year, that number plummeted to 30. Capital punishment has become so rare and geographically isolated that two sitting U.S. Supreme Court justices, Stephen Breyer and Ruth Bader Ginsburg, have urged the full court to reconsider the constitutionality of the death penalty. In Florida, three prosecutors—Jacksonville’s Angela Corey, Tampa’s Mark Ober, and Orlando’s Jeff Ashton (who was defeated by Ayala)—were voted out of office last year partly as a consequence of their rabid support for the death penalty.

Prosecutors could have avoided this chaos if they had acknowledged what was all but certain 15 years ago—that Florida’s sentencing scheme was unconstitutional. But prosecutors chose to ignore this and stick with a system that was broken beyond repair.

While those prosecutors took the easy route, Ayala has refused to do the same. The decision to abandon the death penalty “has not been easy,” she said on Thursday. “But I believe that this decision is necessary for the proper administration of justice.”