Florida poised to become the most death-penalty friendly state | Opinion

Last week, Gov. DeSantis signed Florida’s second death warrant of 2023, scheduling the execution of Louis Gaskin for April 12. The warrant comes less than a month after the state executed Donald Dillbeck — the state’s 100th execution since modern capital sentencing was instituted.

Of the nearly 150 inmates on Florida’s death row who are eligible for execution, Gaskin seems to have been chosen on purpose because of the jury’s vote to recommend a sentence of death. In 1990, the 12-member jury voted 8-4 to sentence Gaskin to death on two counts of first-degree murder. Dillbeck, who was executed on February 23, also was sentenced to death after the jury voted for it 8-4.

The connection? Bills pending in the Florida Legislature (SB 450/HB 555) would lower the jury vote necessary to impose a sentence of death from 12-0 to 8-4.

Had Dillbeck and Gaskin been convicted today, they would not have been sentenced to death because Florida currently requires a jury’s unanimous recommendation for death. But Dillbeck and Gaskin were sentenced to death under Florida’s prior statute, which the U.S. Supreme Court determined violated defendants’ right to jury trial under the Sixth Amendment in 2016 in Hurst v. Florida.

As a result of that decision, Florida’s statute was amended in 2017 to require unanimity. Both Dillbeck and Gaskin were denied relief under Hurst merely because their sentences of death had been final for too long when Hurst was decided. Gaskin was denied relief despite the fact that he, through his attorneys, had argued since the beginning of his case that Florida’s capital sentencing statute was unconstitutional — an argument that was validated by the U.S. Supreme Court years later.

Currently, only one state does not require a jury’s unanimous recommendation for death — Alabama, where the current threshold is a jury’s vote of 10-2 and proposed legislation would require unanimity. Therefore, Florida would be an extreme outlier under the proposed legislation.

The acceptance of non-unanimous jury verdicts is rooted in racism, as Justice Neil Gorsuch explained in the U.S. Supreme Court’s majority opinion in Ramos v. Louisiana (2020): “Louisiana first endorsed non-unanimous verdicts for serious crimes at a constitutional convention in 1898. According to one committee chairman, the avowed purpose of that convention was to ‘establish the supremacy of the white race.’ ” Striking down the Louisiana law at issue in Ramos, Justice Gorsuch wrote on the significance of the Sixth Amendment’s guarantee of a trial by jury: “At the time of the Sixth Amendment’s adoption, the right to trial by jury included a right to a unanimous verdict. When the American people chose to enshrine that right in the Constitution, they weren’t suggesting fruitful topics for future cost-benefit analyses.”

The racial history of Florida’s death penalty is similarly concerning. Of the 30 defendants who have been exonerated from Florida’s death row (the highest in the country), 22 were of racial minority.

In August 2017, the state executed Mark Asay. He was the first person executed in the State of Florida after Hurst and the 93rd person executed by the state since 1976. As Justice James E.C. Perry wrote in a dissenting opinion in Asay’s case in late 2016, Asay was “the first white person executed for the murder of a Black person in this State.” Mr. Gaskin is a Black male who was sentenced to death by an all-white jury for the murders of white victims.

Despite the chaos that ensued in 2016 after Hurst, the Legislature is headed down the same path again with the proposed legislation. If passed, defendants will inevitably raise challenges to the constitutionality of the new statute. Both the Florida and federal courts will have an opportunity to directly address the constitutionality of the new statute as it applies to each defendant sentenced to death under it. It is almost certain this proposed law will fall on the wrong side of constitutionality — again subjecting defendants and victims’ families to uncertainty and years of litigation.

In the meantime, it seems Florida’s government is set on seeking out and executing defendants who were sentenced to death by non-unanimous juries under the state’s prior unconstitutional statute in an apparent political effort to convince the court of public opinion that 8-4 is constitutionally sufficient to support a sentence of death.

Melanie Kalmanson, a graduate of the Florida State University College of Law, has been a member of The Florida Bar since 2016. She serves on the steering committee for the American Bar Association’s Death Penalty Representation Project.

Maria DeLiberato is a capital defense lawyer in Tampa and the executive director of Floridians for Alternatives to the Death Penalty. She has served as an assistant state attorney in Miami-Dade County and spent 13 years representing death row prisoners, including Clemente Aguirre-Jarquin, Florida’s 28th death row to be exonerates.