The Supreme Sanction In Florida

The Supreme Court this week made a rare 8-1 decision that the practice of Florida trial judges being the sole arbiter of death penalty punishment without a trial by jury violates the Sixth Amendment and is unconstitutional.

In an 8-1 de­cision, the court said Flor­ida vi­ol­ated the Sixth Amend­ment by al­low­ing judges, rather than jur­ies, to de­term­ine wheth­er cer­tain cri­ter­ia for a death sen­tence had been met.

Timothy Lee Hurst was sen­tenced to death more than a dec­ade ago for the bru­tal murder of a wo­man he worked with at a fast-food res­taur­ant. Un­der Flor­ida law, murder is nor­mally pun­ish­able by life im­pris­on­ment; a death sen­tence can be im­posed only if a judge de­term­ines that “ag­grav­at­ing cir­cum­stances” war­rant the tough­er sen­tence.

But that de­term­in­a­tion ought to be­long to a jury, not a judge, the Su­preme Court ruled.

“The Sixth Amend­ment pro­tects a de­fend­ant’s right to an im­par­tial jury. This right re­quired Flor­ida to base Timothy Hurst’s death sen­tence on a jury’s ver­dict, not a judge’s fact­find­ing,” Justice So­nia So­to­may­or wrote for the ma­jor­ity. “Flor­ida’s sen­ten­cing scheme, which re­quired the judge alone to find the ex­ist­ence of an ag­grav­at­ing cir­cum­stance, is there­fore un­con­sti­tu­tion­al.”

Flor­ida’s sys­tem re­quired jur­ies to make an “ad­vis­ory sen­tence,” which judges are sup­posed to take in­to ac­count when they make the fi­nal de­term­in­a­tion about wheth­er to ap­ply the death pen­alty. The state’s law­yers ar­gued that was enough, and Justice Samuel Alito—the only dis­sent­ing vote—agreed.

“Un­der the Flor­ida sys­tem, the jury plays a crit­ic­ally im­port­ant role,” Alito wrote.

In last summer's Glossip v Gross death penalty ruling on the constitutionality of lethal injection, it was Alito that wrote the opinion for the 5-4 majority that the method of administering capital punishment had to itself be Constitutional, prompting dissent from Justice Steven Breyer that there was no way to do that.

In the 41 pages that followed, Breyer explained why he believed it was “highly likely” that the death penalty violated the Eighth Amendment. “At the very least, the Court should call for full briefing on the basic question.” Two weeks later, in the first capital case after Glossip, David Zink offered them the means to do so. In his last-minute petition to the Court, Zink presented a question that the Court had not heard in over four decades:

Whether the death penalty today violates evolving standards of decency and concepts of human dignity embodied in the prohibition against cruel and unusual punishment and the Eighth Amendment as applied to the states by the Fourteenth Amendment?

So again, this makes sense, Alito has been the hard-hearted one here on the death penalty.  But the question of the practice amounting to cruel and unusual punishment is looking like an opinion looking for a case, and hopefully such a case will come soon.