BY ZACHARY D. LUDENS — In the closing issue of the University of Miami Law Review’s 67th Volume, Brendan Ryan offered a thoughtful analysis of Florida’s capital punishment regime and one United States District Judge’s determination that this regime was no longer constitutional. Although the Supreme Court of the United States ultimately declined to address the question, Mr. Ryan argued that, regardless of the result, it would be in Florida’s best interest to readdress its death penalty procedures. Now, a recent dissent from a denial of certiorari by Justice Sotomayor drives Mr. Ryan’s point home.
In Evans v. McNeil, No. 08-14402-CIV, 2011 WL 9717450 (S.D. Fla. June 20, 2011), United States District Judge Jose E. Martinez of the Southern District of Florida struck down Florida’s capital punishment statute for violating the Sixth Amendment’s jury trial guarantee. Although the Eleventh Circuit would eventually reverse his determination in light of a Supreme Court opinion that had not been overruled, Judge Martinez questioned whether Ring v. Arizona, 536 U.S. 584 (2002), rendered Florida’s death penalty statute constitutionally deficient. Now, in her dissent from the denial of certiorari in Woodward v. Alabama, No. 13-5380 (U.S. Nov. 18, 2013), Justice Sotomayor has hinted that she believes that Judge Martinez—and Mr. Ryan—may have hit the nail on the head.
Florida’s death penalty statute, like most other states, provides for a bifurcated proceeding. During the guilt-phase, the jury must unanimously determine whether the defendant is guilty of first-degree murder. Then, during the sentencing phase, the jury hears evidence about aggravating and mitigating factors and decides, through a majority vote, whether the defendant should be sentenced to life without parole or death. However, unlike the vast majority of the thirty-two states that still have the death penalty, Florida does not require that a judge follow the jury’s recommendation of life or death. Under the statute, a jury could unanimously find that the defendant should live, but the judge can still sentence the defendant to death. (In practice, this has not happened since August of 1999, when a jury recommended a life sentence for Jeffrey Weaver, but the trial judge sentenced him to death. Ultimately, the Florida Supreme Court reduced the death sentence to life, finding that the judge had erred when he ignored the jury’s finding.)
In Spaziano v. Florida, 468 U.S. 447 (1984), the Supreme Court of the United States upheld Florida’s current death penalty regime against an Eighth Amendment challenge of arbitrariness. In Hildwin v. Florida, 490 U.S. 638 (1989), the Court rebuffed a Sixth Amendment challenge to Florida’s statute under the now defunct sentencing-factors/elements-of-the-offense dichotomy. Since Hildwin, the Court has declined every opportunity to address the Sixth and Eighth Amendment issues in Florida’s capital- sentencing procedures.
The focus in Evans v. McNeil was on the Sixth Amendment. Because the jury’s sentencing recommendation did not specify which aggravating factors existed that justified the death penalty, Judge Martinez held that Florida’s death penalty regime contravened the Sixth Amendment’s jury trial guarantee. His decision largely followed the Court’s analysis in Apprendi v. New Jersey, 530 U.S. 466 (2000), where the Court, per Justice Stevens, held that a judge could not increase a sentence past a statutory maximum unless a jury made a finding of fact that made the defendant eligible for a higher sentence. This was extended in Ring v. Arizona, where Justice Ginsburg’s majority opinion held that the Sixth Amendment requires that a jury find the aggravating factors necessary for imposing the death penalty.
Enter Justice Sotomayor’s dissent from the denial of certiorari in Woodward. Like Florida’s death penalty statute, Alabama’s statute allows for a defendant to be sentenced to death where the jury finds that the defendant should live. Also like Florida, Alabama’s death penalty statute was upheld before Apprendi and Ring, in Harris v. Alabama, 513 U.S. 504 (1995). But unlike Florida, Alabama judges often reverse a jury’s recommendation of life—even where that recommendation is unanimous (as recently as May 2011, where a jury recommended 12-0 that Courtney Lockhart should live, and the judge disagreed). According to Justice Sotomayor, joined by Justice Breyer, “a sentencing scheme that permits such a result is constitutionally suspect.”
To reach this conclusion, Justice Sotomayor looked at both the Sixth Amendment’s jury trial guarantee and the Eighth Amendment’s guarantee against cruel and unusual punishment. Beginning with the Eighth Amendment analysis, Justice Sotomayor noted that Furman v. Georgia, 408 U.S. 238, 286–91 (1972), and Gregg v. Georgia, 428 U.S. 153, 188 (1976), require that “States  apply special procedural safeguards to ‘minimize the risk of wholly arbitrary and capricious action’ in imposing the death penalty.” Because the jury trial guarantee helps to protect against arbitrary impositions of the death penalty, Justice Sotomayor reasoned that it is fundamental that a judge not be able to just override the jury’s recommendation of mercy.
Justice Sotomayor also included some interesting statistics in justifying her opinion. Since 2000, she noted, judges have overridden a jury’s recommendation of life in favor of death twenty-seven times. Twenty-six of those times were in Alabama. The only other judicial override occurred in Delaware—but was eventually reduced back to a life sentence. And only one other state’s death penalty regime allows for a judicial override in this way: Florida, where it has not been done since 1999. Justice Sotomayor commented that this may be a product of judicial elections in Alabama, pointing to a judge who, “[w]ith admirable candor . . . admitted that voter reaction does ‘have some impact, especially in high-profile cases.’” This led Justice Sotomayor to conclude that “[b]y permitting a single trial judge’s view to displace that of a jury representing a cross-section of the community, Alabama’s sentencing scheme has led to curious and potentially arbitrary outcomes.”
Then, Justice Sotomayor—speaking alone—undertook a Sixth Amendment analysis in which she largely used the same analysis that Judge Martinez and Mr. Ryan applied to Florida’s death penalty regime. The lone Justice noted that Ring “made clear that ‘[c]apital defendants, no less than noncapital defendants, . . . are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.’” She concluded that “the judge imposed the death penalty on Woodward only because he disagreed with the jury’s assessment of the facts.”
In finding that Alabama’s sentencing scheme, which closely mirrors Florida’s, may violate both the Sixth and Eighth Amendments, Justice Sotomayor made it explicit that “in [her] view, the time has come for [the Court] to reconsider” its constitutionality. And regardless of the fact that Justice Sotomayor used both the Sixth and Eighth Amendment to come to this conclusion, while Judge Martinez and Mr. Ryan focused primarily on the Sixth Amendment, her dissent from denial of certiorari serves as a ringing indictment of both the Alabama and Florida death penalty regimes. She closed by saying, “Given these developments, we owe the validity of Alabama’s system a fresh look.” Given these developments, maybe it is time for the Florida legislature to give its death penalty procedures a fresh look as well. Otherwise, that same legislature may be left scrambling when this line of thought wins out and Florida’s death penalty regime is struck down. Then again, maybe that would not be such a bad thing.
It is worth noting that the author of this piece, Mr. Ludens, interned with the Honorable United States District Judge Jose E. Martinez during the summer of 2012, after the Evans case had already been decided.