The Washington PostDemocracy Dies in Darkness

Opinion Florida moves to revive a reckless approach to the death penalty

Florida state Sen. Blaise Ingoglia speaks with a colleague in Tallahassee on Feb 6. (AP Photo/Phil Sears)
4 min

The decision to sentence someone to death is profound and, typically, irreversible, leaving no room for error in a criminal justice system where errors abound.

Florida’s justice system is particularly good at making mistakes; so good that it leads the nation in the number of felons who faced the death penalty but were exonerated. Trying to make it easier to put more people on Florida’s death row might seem bizarre, but that is exactly what the state’s Republican-dominated legislature, working in tandem with Republican Gov. Ron DeSantis, seems intent on doing.

In a state that has executed 99 convicted murderers since the 1970s, 30 people on death row have seen their cases overturned during that period. There are 299 death row prisoners in Florida. Is it likely that not one will be exonerated?

Legislators are nonetheless forging ahead, prompted by outrage over the sentence of life without parole given in November to Nikolas Cruz, who shot to death 17 students and staff members at Marjory Stoneman Douglas High School in Parkland, Fla., in 2018, when Cruz was 19.

The jury in that case could not unanimously agree to sentence Cruz to death, so he instead received life in prison without parole.

“This is much-needed reform to ensure that evil scumbags like Nikolas Cruz do not escape with just a life sentence,” state Sen. Blaise Ingoglia said, introducing a bill on Jan. 31 that would make it easier for prosecutors to obtain a death sentence.

If the bill passes, Florida will revert to its old way of doing things — before pivotal 2016 capital punishment decisions by the U.S. Supreme Court and the Florida Supreme Court made death sentences more difficult to secure.

The bill would allow a judge to toss out a jury’s recommendation of life without parole and substitute the death penalty. No other state permits that, but it was the law in Florida until nearly seven years ago. That’s when the U.S. Supreme Court, in Hurst v. Florida, ruled that judges wielded too much power in death sentencing cases. The high court’s decision forced Florida to change its law.

But the proposed legislation would go further: It would also journey back in time and allow a jury to recommend a death sentence without unanimity — an 8-4 majority could impose it. Florida law did not require unanimous decisions in death sentencing until 2017.

Instead, a jury would need only to agree unanimously on one matter — that the defendant is eligible for the death penalty because at least one “aggravating factor” exists beyond a reasonable doubt.

That is a lamentably low bar; prosecutors can’t even seek the death penalty if there is no “aggravating factor.” They have 16 to choose from, including murdering for money, creating “a great risk of death to many persons” or killing in a “cold, calculated, and premeditated manner.”

Deciding to execute a human being — no matter how heinous the crime — is a grave matter. It should be the product of deep debate and contemplation. It legally requires careful consideration of mitigating factors, such as mental illness or trauma. It ought to result from the agreement, even after hard-fought debate, of a unanimous jury — jury unanimity is a bedrock value of American justice.

A jury’s lack of agreement on imposing the death penalty should be a red flag.

In the case of the Parkland massacre, three jurors could not dismiss mitigating factors: Cruz’s mother drank heavily during her pregnancy and witnesses testified that Cruz was mentally impaired and started acting violently at a young age.

The Florida law is likely to pass, since DeSantis supports it and the bills in the state House and Senate are identical. The authors meticulously followed a key part of the 2020 ruling issued by the conservative-packed Florida Supreme Court, which argued that unanimity in handing down a death sentence was not required under the U.S. Supreme Court’s Hurst decision. Any change to the law would be challenged by death-penalty opponents, but Republicans are wagering that higher courts will be on their side.

Almost two-thirds of Americans support the death penalty for murder cases, Pew Research Center said in 2021. I know many feel vehemently that executing a murderer is a fair and just response to an abominable crime. Others lean into “an eye for an eye” as an acceptable form of vengeance for victims’ families. Clear majorities acknowledge the risk of executing the innocent and doubt that the death penalty deters crime — but favor it nonetheless.

That reality is disheartening. Death sentences are sanctioned by the government. We, the people, are the jurors, the final arbiters of that crushing, irreversible decision. And no one should be comfortable with the possibility that maybe, just maybe, we got it wrong.