On Monday, a judge in Miami-Dade County found Florida’s death penalty statute, which allows non-unanimous juries to impose a death sentence, to be unconstitutional. Circuit Court Judge Milton Hirsch struck down the recently-amended Florida statute that allows for death sentences based on affirmative votes of 10 out of 12 jurors. The new statute was enacted in response to a January 2016 Supreme Court decision, Hurst v. Florida, which declared an older Florida death penalty statute to be unconstitutional. Under Florida’s pre-Hurst law, a majority jury vote was sufficient for an “advisory opinion” in favor of death, and judges had the final say on sentencing. The amended statute eliminated the possibility of judicial override but did not add a requirement that the jury be unanimous.

In the recent opinion, which relied exclusively on Florida law, Judge Hirsch, ruling in favor of Karon Gaiter, wrote, “We cannot accede, we will not accede, we have never acceded, to outcomes as to which no more can be said than that some jurors have spoken … Every verdict in every criminal case in Florida requires the concurrence, not of some, not of most, but of all jurors in Florida — every single one of them.”

In the pretrial ruling, the court noted that the current law not only erodes the perceived legitimacy of death verdicts but also allows for racial bias and for silencing of minority voices on juries. Under this scheme, for example, an unscrupulous prosecutor might be able to avoid a reversal under Batson (which prohibits racial discrimination in jury selection) by allowing two, but no more than two, African-American jurors to be seated on an otherwise all-white jury. With only ten votes required for a death sentence, if the ten white jurors voted for death, the votes of the African-American jurors wouldn’t make any difference to the outcome.

In Gaiter’s case, Miami-Dade prosecutors say that they will appeal the court’s ruling.

Non-unanimous jury votes can occur in cases where some jurors have reservations about the appropriateness of a death sentence. In many of these cases, jurors are swayed by mitigation factors, which may include the defendant’s IQ score, a history of serious mental illness, the offender’s age at the time of the crime, or a history of childhood abuse and trauma.  For instance, a Miami-Dade County jury recommended that Victor Caraballo be sent to death by a non-unanimous vote of 9 to 3.  Evidence was introduced indicating that Caraballo was “mentally disabled, and the product of child abuse, incest and neglect.”  In another case, a Miami jury that recommended Sebert Connor be sent to death by a vote of 8-4. Connor suffered from chronic paranoid delusions and organic brain damage, and two experts opined that his ability to appreciate the criminality of his conduct was impaired.”

Three hundred and ninety people sentenced under the old law remain on death row in Florida. Of those people, about 75% were sentenced by non-unanimous juries. The fate of all 390 remains to be determined. The Florida Supreme Court will now have to decide whether all or some of the death sentences issued under the unconstitutional law should be reconsidered. 

Along with Alabama and Delaware, Florida is one of only three states that imposes death sentences based on non-unanimous jury votes. After Hurst, Delaware put its 39 pending death penalty cases on hold. Now Delaware’s State Supreme Court will have to decide on the constitutionality of that state’s death penalty statute. The defense brief in that case was filed in February.

Earlier this month, a trial judge in Jefferson County, Alabama ruled that, in light of Hurst, Alabama’s death penalty statute is unconstitutional because the use of judicial override in the state is applied unfairly, and in an “arbitrary and capricious manner.” Nearly 20% of the death verdicts in that state are a result of judicial override, a practice whereby a judge disregards a jury’s recommendation for a life without parole sentence and instead imposes a death sentence.

These rulings follow a national trend of dramatically reduced use of the death penalty. Every year, the nation’s courts impose fewer sentences of death, and these sentences are disproportionately imposed in a small number of outlier counties. Between 2010 and 2015, only sixteen out of 3,143 counties nationwide imposed five or more death sentences. Four of those sixteen counties, including Miami-Dade, are located in Florida. Two are in Alabama. It remains to be seen if these recent reversals will inspire a broad change in Florida’s out-of-step sentencing practices.