Florida is critical to understanding the modern application of the death penalty in the United States. It has the largest active death row. It sentences more people to death than any other state. It has the worst exoneration record and executes at a rate second only to Texas. The legislative appetite for the continued use of the death penalty has resulted in the re-writing and amending of the law with a haste that has created a state of legal chaos. Florida was the first state to pass a new statute following the finding in Furman v. Georgia that the application of the death penalty was unconstitutional. Forty years on, history repeated itself in response to the finding in Hurst v. Florida that Florida’s system of sentencing people to death was unconstitutional. In less than a year, history repeated once again when the Florida Supreme Court interpreted previous United States Supreme Court decisions by finding the requirement for jury unanimity in the penalty phase of a capital trial in Hurst v. State.
This Article examines Florida’s application of the death penalty today under its new 2016–17 statute. It highlights the dearth of empirical research into Florida’s capital charging and provides an insight into research undertaken by the authors to date. Provisional findings indicate that Florida is arbitrarily and capriciously imposing death sentences, and concludes that Furman remains relevant today in Florida. A review of 1051 first-degree murder cases, in which 347 death cases were identified, indicated significant geographical variance of the application of the death penalty across the state. The variance appears to be a product of prosecutorial discretion, whether that discretion be random and inconsistent, or discriminatory selection of cases in which to seek the death penalty. Similar patterns were identified in a review of 164 death sentences between 2006 and 2016. In addition, 126 of the death cases are resentencings as a result of Hurst retroactivity. A review of the remaining 249 cases on death row revealed the extent of the arbitrary line drawn by the Florida Supreme Court in its retroactivity decisions in Mosley v. State and Asay v. State: 75% of death row was sentenced on the basis of a non-unanimous jury recommendation, yet only 40% will have their death sentences vacated and new penalty phase trials granted. Finally, the authors reflect on the difficulties in data collection and lessons learned before proposing the next steps for future research.
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