Florida Gov. Ron DeSantis recently signaled an interest in making it easier for juries to hand down the death penalty. Florida lawmakers have responded with state legislation to make it happen. Currently, juries in Florida must unanimously recommend capital punishment, but House Bill 555 and Senate Bill 450 would lower the threshold to just eight out of 12 jurors. This would be a troubling development for justice in Florida.
In his recent remarks at the Florida Sheriffs Association’s Winter Conference, the governor commented on the trial of the Stoneman Douglas High School shooting perpetrator. He said that the mass murderer’s conviction was long overdue, but he was disappointed that the jury did not recommend capital punishment. Wrongly suggesting that the outcome was the result of a lone juror’s personal opposition to the death penalty, Gov. DeSantis argued:
I think it was really based on one person’s idiosyncratic views. Fine, have a supermajority, but you can’t just say one person. So maybe 8 out of 12 have to agree or something. But we can’t be in a situation where one person can just derail this.
The jury foreman in that decision told CBS News that three jurors voted against recommending the death penalty. One juror in question was reportedly a “hard no” because the juror believed that the gunman was mentally ill.
Setting aside the details of any particular case, Florida’s proposal stands in stark contrast to the growing number of states moving away from executions. Twenty-three other states have totally abolished the death penalty. Governors in three additional states have placed an indefinite moratorium on executions, and at least nine states are actively considering abolishing the death penalty.
Meanwhile, a group of conservative lawmakers and pastors in Oklahoma are calling for a moratorium on executions as the state presses forward with plans to execute Richard Glossip, a man widely believed to be innocent. Reason.com reported:
Glossip’s case has garnered attention from death penalty opponents, because he’s on death row for a murder he did not commit. Glossip was convicted and sentenced to death for allegedly masterminding the murder of Barry Van Treese, the owner of a hotel where Glossip worked, in 1997. Glossip allegedly convinced Justin Sneed, a 19-year-old maintenance man at the hotel at the time, to kill Van Treese, and in exchange the two would split the victim’s money.
Glossip has insisted on his innocence, and there is no corroborating evidence tying him to the crime. Once Sneed confessed to the killing and pointed the finger at Glossip, he was convicted and sentenced to death based upon the testimony of Sneed alone. Sneed avoided the death penalty. Since then, Glossip and his attorneys have been fighting to get the state to reconsider its plans to execute him.
Among the states that still allow the death penalty, all but three require juries to reach a unanimous decision. Alabama requires that 10 out of 12 jurors agree to recommend the death penalty. In Missouri and Indiana, judges can make the final decision if juries are unable to reach a unanimous vote.
Florida previously allowed trial judges to make the final determination regarding capital punishment, with juries only serving an advisory function. However, the U.S. Supreme Court’s 2016 ruling in Hurst v. Florida found that the state’s procedure violated defendants’ Sixth Amendment right to a trial by jury.
Initially, Florida lawmakers responded with legislation that would have required 10 out of 12 jurors to recommend capital punishment, but that law was quickly struck down by the Florida Supreme Court. The Florida legislature subsequently passed a law requiring unanimous jury recommendations for capital punishment. The Florida Supreme Court further complicated the issue in 2020 when it reversed its position on jury unanimity, opening the door for Gov. DeSantis’ proposal.
Regardless of whether unanimity is constitutionally required, it would be unwise to lower the threshold. In fact, Florida should put an end to executions altogether.
A wrongful conviction is perhaps the worst possible outcome in the justice system. It consistently deprives innocent people of their liberty and denies justice to victims. The National Registry of Exonerations shows over 80 exonerations in Florida since 1989—cases in which a person was wrongly convicted of a crime and later cleared of all the charges based on new evidence of innocence. Wrongful convictions are made immeasurably worse when they result in wrongful execution by the state.
Additionally, lengthy and costly series of appeals also typically precedes executions—more than half of all inmates on death row in the U.S. have been there for more than 18 years. Lengthy appeals are part of the reason why capital cases are so costly to taxpayers. It is estimated that capital punishment costs Florida about $51 million annually beyond what it would cost to sentence first-degree murderers to life in prison without parole. Thus, Florida would save about $24 million per inmate sentenced to life without parole rather than capital punishment.
However, the delay for appeals between conviction and execution is critically important. It serves as a bulwark against wrongful executions. According to the Death Penalty Information Center, 30 people in Florida are among the 191 people in the United States who have been exonerated while they were awaiting execution since 1972. That translates to roughly one exoneration for every 8.2 executions nationwide. Florida’s justice system is much worse than the average at convicting innocent people, with one person on death row being exonerated for every 3.3 executions since 1979. Eleven out of the 30 people exonerated in Florida had wrongly been on death row for more than 10 years before they were cleared.
Clifford Williams, a Florida man, was exonerated in 2019 after serving 43 years on death row––the longest time on record among exonerees nationwide. An appeal uncovered several weaknesses in Williams’s trial, including mistaken witness identification, official misconduct, and an inadequate legal defense. Williams was initially denied compensation due to a prior felony, but Gov. DeSantis later approved a $2 million award.
Proponents of the death penalty might argue that it serves as a deterrent, but there is no consistent evidence to support that claim. Empirical research on the subject is marked by intense methodological disagreements and has produced conflicting results. As a 2015 National Research Council report concluded:
[R]esearch to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates. Therefore, the committee recommends that these studies not be used to inform deliberations requiring judgments about the effect of the death penalty on homicide.
Even in the absence of evidence on deterrence, capital punishment involves significant tradeoffs when it comes to upholding justice. Capital punishment is a sentence reserved for the most heinous and depraved criminals. It is understandable that Gov. DeSantis and many others are frustrated when these individuals receive anything less than swift execution. However, the costs of error in capital cases is high, and Florida’s track record demonstrates that errors are not uncommon. Making it easier to send people to death row risks more cases like Clifford Williams’ experience of wrongly losing 43 years on death row while adding financial consequences on top of concerns about justice.
Jury unanimity doesn’t eliminate wrongful convictions and executions, but lowering the standard, as Gov. DeSantis has expressed he would like to see happen in Florida, would only increase the opportunity for errors that could result in wrongful executions by the state.
Instead of taking this misguided cue from Gov. DeSantis, Florida lawmakers should consider abolishing the death penalty altogether.