Originally published in the New York Law Journal, an ALM Media publication, on June 4, 2018.
By: Michael Booth
A U.S. Supreme Court ruling that led to an overhaul of Florida’s death-penalty sentencing process has put financial and workload pressure on prosecutors, public defenders and courts.
The government lawyers are grappling with fallout from the 2016 ruling, in a case known as Hurst v. Florida, that said the state’s system of allowing judges, instead of juries, to find the facts necessary to impose the death penalty was an unconstitutional violation of the Sixth Amendment right to trial by jury.
The ruling set off a string of court decisions that effectively put Florida’s death penalty in limbo for 18 months and resulted in a new law requiring unanimous jury recommendations for death sentences to be imposed.
The federal Hurst ruling affected about 180 of the state’s 349 death row inmates. The Florida Supreme Court last year began sending back some of the cases to lower courts for resentencing, a process that is taxing the resources of prosecutors and public defenders.
The impact on the judicial circuits is varied, depending on the number of cases sent back for new sentencing hearings. The Florida Senate’s chief budget writer said Wednesday he is looking for data to determine whether the resentencings are having a financial impact.
In circuits revisiting multiple cases that are sometimes decades old, prosecutors have to “start from scratch,” according to State Attorney Bill Cervone of the Eighth Judicial Circuit, which includes Alachua, Baker, Bradford, Gilchrist, Levy and Union counties.
“Every one of them requires that you start over and that you reassess the viability of the case,” Cervone said. “It’s a dollar and a time workload issue for us that will not go away for many years.”
The costs include locating witnesses who may have moved or died, hiring experts and finding victims, whose wishes must be considered when making decisions about prosecutions.
It’s unclear how many prosecutors are again seeking death sentences and how many are instead opting for life sentences without parole.
“Those decisions are being made probably on a daily basis, but I don’t think we have even guesswork on how many might not be pursued for whatever reason,” Cervone said.
The costs will vary depending on how the cases are litigated, said Pete Mills, an assistant public defender in the Tenth Judicial Circuit who also serves as chairman of the Florida Public Defenders Association Death Penalty Steering Committee.
“Some will have a great deal more investigation than others,” Mills said. “Furthermore, science has come a long way in the analysis and understanding of how the brain works.”
The evolution of brain science will almost certainly translate into additional expert witness costs and analysis for both sides.
It’s also too soon to interpret the impact of the unanimous jury requirement on whether prosecutors seek death or life in prison, Mills and Cervone said.
Under Florida’s old death penalty law, a simple majority of jurors could recommend death in capital cases. But the law passed last year required unanimous jury decisions for the sentence to be imposed by judges.
The Florida Supreme Court has been sending back cases for resentencing if juries were not unanimous and the sentencing occurred after June 2002. That is when the U.S. Supreme Court issued a ruling known as Ring v. Arizona that served as a key premise for the 2016 ruling in Hurst.
Prosecutors who once were confident about their chances of getting a majority of jurors to agree to a death-sentence recommendation are less certain about whether all 12 jurors will reach consensus. Juries have produced mixed results on the resentencings so far.
“[The unanimity requirement] has had a big impact. We are still trying to assess individually in our communities how that will play out,” Cervone said, adding that “it’s hard for us to project it” until prosecutors have a history of how juries voted in capital cases.
Failing to seek the death penalty could be problematic for elected state attorneys, especially in more conservative regions of the state.
“It would be foolish to ignore the political dynamic of it. That is a reality to a greater or lesser extent in different communities across the state. We’re constitutionally bound to consider the wishes of survivors. It’s to me so grossly unfair to drag those people back in and put them through this again, but we’ve got to go through that process,” Cervone said.
State lawmakers haven’t specifically earmarked any funds to address the Hurst-related cases, but public defenders in some circuits will get additional resources.
And Senate budget chief Rob Bradley, a Fleming Island Republican who is a former prosecutor, indicated he needs more information to determine whether the resentencings are straining resources.
“I would expect the judges working with the state attorneys and defense counsel to use their time wisely to address these issues. If there is some expert witness or discovery costs that are above and beyond, I would like to see some specific data on that point,” Bradley said.
The Senate has included $14 million in its proposed budget for state attorneys and public defenders to deal with employee turnover, an issue they say has hampered their agencies.
“The good news is that in the Senate budget, we’re going to be addressing some long-standing requests with regard to retention pay. That is going to be the focus of the Senate for the criminal justice system,” Bradley said.