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Understanding Why Florida’s Death Penalty is Unconstitutional

Screen Shot 2016-01-12 at 2.28.07 PMFor very basic reasons that any first year law student could appreciate, Florida’s death penalty has been declared unconstitutional. Now before you jump out of your seat, understand what this means – not that capital punishment is unconstitutional, but rather the manner in which it is obtained by prosecutors.

No, we are not talking about the method of execution.  This has nothing to do with lethal injection, electric chairs, hanging, or throwing momma from the train.  Instead, it is about a sentence imposed by a single person, a judge, instead of an impartial jury of the defendant’s peers.

This article will explain the one single issue that makes Florida’s death penalty laws unconstitutional and what needs to change to get them into compliance.


On May 2, 1988, Cynthia Harrison’s body was found in a freezer at the restaurant where she worked.  She was bound, gagged, and stabbed more than 60 times. The restaurant safe was found open and hundreds of dollars were missing.

Timothy Lee Hurst, who was Harrison’s co-worker, was eventually charged with her murder. According to Judge Sotomayor’s opinion, substantial forensic evidence was admitted at trial that linked Hurst to the murder.

Witnesses also testified that Hurst said he had planned to rob the restaurant, that he and Harrison were the only ones scheduled to work on the day of the murder, that Hurst had disposed of blood stained evidence, and that he had also used stolen money to buy shoes and rings.

Even though Hurst claims his car broke down and he was far away from the restaurant at the time of the murder, it appears, at least superficially, that evidence of guilt is certainly present.  Whether the jury verdict was correct or incorrect is not a subject we will take up here.

Following his conviction at trial, a penalty phase jury came back with a recommendation of death. The trial judge then imposed a death sentence. For reasons unrelated to the issues here, the death penalty sentence was later overturned on appeal and remanded for a new hearing.

After a second penalty phase trial, the second jury recommended the death penalty in a 7-5 vote.  The presiding judge then sentenced Hurst to death a second time. That imposition of death is the subject of today’s ruling.

You can read a copy of Justice Sotomayor’s opinion here: Hurst v. Florida


The singular most frustrating thing I encounter as a criminal trial lawyer is the public’s misconception of our legal system. People simply do not understand the bedrock ethics seeded in the Constitution that trickle down to create all the laws that define how our justice system works in every case.

Take the 6th Amendment for example.

Screen Shot 2016-01-12 at 1.04.46 PMThe 6th Amendment outlines many of the most fundamental rights we have in all of American civilization. It guarantees your right to a lawyer, your right to speedy trial (so you don’t languish in prison indefinitely as they did in old England), your right to confront your accusers and challenge their so-called evidence, your right to compel witnesses to physically show up in court and answer your questions (whether they like it or not), and most importantly as it relates to Florida’s death penalty – your right to trial by impartial jury.

In Florida, the death penalty goes something like this: A person is arrested and accused of murder. A jury trial is had where prosecutors have the burden of proving the defendant is guilty beyond a reasonable doubt.

If prosecutors get a conviction for 1st Degree Murder, then the next step is to proceed to the penalty phase.

During the penalty phase, prosecutors put on evidence in support of imposition of the death penalty. The defense obviously challenges those claims and will also offer evidence as to why Life should be imposed.

Ultimately the jury votes on what to do. Unlike a jury verdict during the first trial phase where guilt is determined, a penalty phase jury’s verdict does not have to be unanimous. Majority wins. In Hurst’s case, majority won 7-5.

However, the majority vote does not decide the final outcome. Rather, the jury’s vote for either Life or Death results in nothing more than a mere recommendation to the trial judge… a recommendation that the judge is free to follow or disregard.

This is where Florida goes rogue.

The imposition of a sentence of death is NOT done by a jury – even though the 6th Amendment says a person is entitled to trial by impartial jury. 

Instead, the death penalty is meted out by a single human being: The trial judge.

Screen Shot 2016-01-12 at 12.58.26 PMNot only does this violate the concept of impartial jury, but it upends the check and balance on governmental power that the concept of an impartial jury is intended to accomplish.

In old England, the King by himself could sentence someone to death. The power to snuff out a citizen’s life was enthroned in a single person.

By placing that power in the hands of an impartial jury, the Founding Fathers put a check and balance on governmental power to curb its abuse and to throw yet another roadblock on the pathway to tyranny.

This is the greatness of the Founding Fathers.

They saw for themselves and through the study of history that tyrants do in fact rise and they cause the suffering and death of millions and millions. When the Founders broke away from old England, they took a step back and thought of ways to devise a new system that would prevent the rise of tyrants and the murder and abuse that ensues.

The key thing they understood is that tyranny has its seedlings in government. With the exception of military defeat to a foreign invader, a tyrant must inherently rise domestically. To do so, means he/she must rise through the political establishment and take power incrementally, one step at a time.  Hitler and Stalin are great examples.

When it comes to criminal justice, wrongful prosecution for political gain is a common theme throughout history. In fact, it is a common theme in modern times.

By taking the power of conviction away from a governmental agent called a judge and placing it in the hands of the citizenry in the form of an impartial jury, the Founding Fathers wrote kevlar vests into the law.  They aren’t bullet proof, but in many cases they act as a barrier that saves lives.

Florida’s death penalty is unconstitutional because it violates this very concept. It shirks the check and balance on governmental power by placing the ultimate sentencing decision in the hands of one single person who is an agent of the government: A judge.

According to the 6th Amendment, that power can only be had in the hands of the People the government is supposed to serve: An impartial jury.

Thus, the U.S. Supreme Court ruled today that Florida’s death penalty scheme violates the 6th Amendment and must be changed forthwith.


Regardless of whether you are pro death penalty or against it, I have to believe you are a red blooded American who believes in the Constitution. If that is true, then you ought to celebrate today’s opinion.

While some may view this change as a nuance in the law, keep in mind that it is a fundamental change in how the fourth busiest death penalty state handles one of the most important and sensitive matters regarding human life and civil rights.

The decision to execute a citizen is not the same as an enemy combatant in war.  A citizen is one of us.

Today’s ruling took the awesome responsibility and power of that decision and clarified that is has been firmly rooted in the People and not in the government since it was written into the Bill of Rights.

To comply with the U.S. Supreme Court’s ruling in Hurst v. Florida, the power to sentence someone to death will be taken away from judges and placed strictly in the hands of juries. This means, the jury recommendation at the end of a penalty phase trial will be the sentence and not just a recommendation.