Execution chamber in a Florida prison. Photo: Florida Department of Corrections/Doug Smith

A November 23 ruling by the Florida Supreme Court could mean the re-sentencing of close to 300 prisoners currently on death row in the state, as well as its possible implication of unconstitutional sentencing schemes in three other states.

Last week, the Florida Supreme Court overturned the death sentence imposed by a judge on Richard Franklin after his jury split 9-3 in recommending the death penalty for a 2012 murder. The court reasoned that the sentence violated Franklin’s right to have a unanimous jury determine all facts necessary to impose the death penalty.

The court described Franklin’s case as a Ring-Hurst claim, referencing two previous U.S. Supreme Court cases.

In Hurst v. Florida (January 2016), the U.S. Supreme Court found Florida’s capital sentencing scheme to be in violation of the Sixth Amendment if there was not a unanimous finding by jurors that aggravating circumstances outweighed mitigating circumstances. The Court based its decision largely on Ring v. Arizona, a 2002 decision that struck down the state’s sentencing scheme because a judge, rather than a jury, determined the facts necessary to impose a death sentence.

In essence, these rulings make clear that a jury must find every and all facts that are a prerequisite of a death penalty sentence, including but not limited to aggravating circumstances, mitigating circumstances and the weight of each.

So, if the Florida Supreme Court remains true to its new Franklin ruling, it will order new sentencing hearings for all prisoners whose non-unanimous death sentence was still pending on direct appeal at the time of the U.S. Supreme Court’s ruling in Hurst v. Florida. That number has been determined to be between 30 and 40.

But, the state’s highest court could rule that Hurst be applied to all cases that were pending on direct appeal at the time of Ring in 2002. If that is the case, Florida is looking at about 200 cases, with about 170 new sentencing hearings required.

Another possibility is that the Florida Supreme Court decides the ruling is wholly retroactive, thereby involving all nearly 400 people currently on the state’s death row.

“The Florida Supreme Court could decide that the Constitution is the Constitution and they will not arbitrarily distinguish between who gets the Constitutional right enforced in their case and who doesn’t,” Robert Dunham, executive director of the Death Penalty Information Center, explained to Forensic Magazine. “So they could, applying Florida law as opposed to federal habitus corpus standards, say they will apply the Constitutional protections set forth in Hurst to everyone that is currently on death row. In that circumstance, we’re looking at about 380 people, with estimates of high 200s to 300 prisoners who had non-unanimous jury recommendations for death. At a minimum, we’re looking at dozens of re-sentences, but we could be looking at several hundred.”

An influx of even several dozen cases would swamp the courts, according to Dunham; hundreds would be disastrous. There are not enough prosecutors, judges, court personnel, court dates or even qualified defense lawyers to handle a sudden flood of capital sentencing proceedings.

“People have a right to speedy trials,” Dunham pointed out. “And their right to speedy trials is not affected by an onslaught of old cases that also need to be tried. Even assuming there was enough [personnel], who is going to pay for them and how much?”


The Delaware Supreme Court has already ruled that the Delaware death penalty statute is unconstitutional under Hurst; and the state of Alabama is under orders from the U.S. Supreme Court to reconsider the question of if their death penalty law violates Hurst. The nation’s highest court recently overturned four decisions of the Alabama court of criminal appeals, and sent the cases back to reconsider the issue.

“If Hurst means what the Florida and Delaware Supreme Courts have concluded it means, then three other state statutes are probably unconstitutional,” Dunham said. “If Hurst requires all facts necessary to impose a death penalty to be decided by a jury in the first instance, then the statutes of [Nebraska, Montana and Indiana] violate Hurst.

In Montana and Nebraska, the jury finds an aggravating circumstance; but the judge finds if it is of sufficient weight for a death penalty sentence. In addition, aggravating circumstances must outweigh mitigating circumstances—a fact only a judge or judges find in these two states.

In Indiana, if there is a unanimous jury decision that aggravating circumstances outweigh mitigating, the court must follow that recommendation; but if the jury is not unanimous, the judge has the power to find the fact and determine the sentence.

But that’s not all. According to Dunham, on appeal, Hurst could have an effect on every single death penalty state.

On appeal, defendants often challenge the aggravating circumstances in their case—whether that be the validity of the circumstance or improper prosecutorial conduct. If an aggravated circumstance is found to be invalid or improperly found, in the past, the appellate courts have looked at the remaining evidence and reweighed it to determine if a death sentence was still constitutionally sustainable.

But, if Hurst establishes that all defendants have a right to a jury-determination of all the facts, the appellate court would not be able to reweigh the evidence.

“The appellate court would not be able to cure an 8th or 14th amendment violation by conducting an appellate fact-finding process that violates the 6th amendment,” Dunham explained.


Ultimately, the retroactivity determination the Florida Supreme Court is going to make will be based on Florida law. The court has not been exactly dodging the issue, but it has taken cases that have clearer answers, thus far.

“The Franklin case addressed the question, ‘does it apply to cases pending on direct appeal?’ and the obvious answer to that was yes,” said Dunham.

“The legal issue then simply becomes, are you going to enforce the Constitution consistently, or are you going to arbitrarily protect the rights of some people who were unconstitutionally sentenced to death?”