No One Should Die When the Jury Votes for Life

No One Should Die When the Jury Votes for Life

Florida

Capital punishment

Newspaper article written by Michael A. Mello, discussing Florida's capital sentencing statute in 1985.

Mello, Michael A.

The Post

HIST 298, University of Mary Washington

1985-06-05

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Florida

Florida's capital sentencing statute provides for a three-step trial procedure in the administration of the death penalty. After a defendant is found guilty of a capital felony, a sentencing hearing is conducted before a jury which renders an advisory verdict; the judge, however, determines the actual sentence.

The statute thus permits a trial court to impose a sentence of death despite the jury’s conclusion that the defendant deserves to live. That has happened 87 times in Florida. Legislation is presently pending before the House and Senate of the Florida Legislature providing that a jury recommendation of Life imprisonment in capital cases be binding on the court.

The reasons for supporting this legislation are, I think, straightforward. First, the jury override degrades the jury on the very issue that has at its core an ethical and moral judgment of the community. The sentencer’s principal task in a capital case is to determine where that defendant and his crime are located on the scale of community outrage. Given that the purpose of a death sentence is to reflect community standards it follows that the representatives of the community should decide who dies.                     

Second, the jury override wastes judicial and fiscal resources. The Florida Supreme Court reverses three-quarters of override cases. That alone is strong evidence that the system is not working.

Third, the jury override increases the possibility of executing an innocent person. Jurors are instructed to determine the guilt of an accused beyond a reasonable doubt. There is, however, another type of doubt, often called “whimsical doubt,” i.e., doubt not rising to the level of reasonable doubt. If a juror entertains such a “whimsical doubt,” he or she would still be duty-bound to convict the defendant.

But such a doubt is an important consideration in deciding whether to impose an irrevocable penalty. The judge, who does not take part in the jury’s deliberations, will not know if such whimsical doubt was a factor in the jury’s recommendation of a life sentence.

Equally important is what this bill is not about.  First, it is not about abolishing the death penalty. I recognize the right of the state to exact its ultimate penalty against the ultimate wrongdoers. But the issue here is not whether some will dies; the question is who is going to decide which of those wrongdoers are in fact the most heinous.

Second, this legislation is not about commuting the death sentences of anyone presently on Death Row. The bill expressly provides that it would apply “only to offenses committed on or after Jan. 1, 1986” and that  “persons who committed a capital felony prior to such date shall be sentenced in accordance with law in effect at the time” the offense was committed. The amendment would be prospective only.

Third, it is sometimes argued that we should just leave the statute alone: We have something that works; let’s let it be and not risk creating any new issues for appeal. The problem with this position is that it insulates the statute from any progress or reform. The statute can be changed and in fact has been changed several times in the past.

In 1979, for example, the Legislature added an aggravating circumstance and changed the language concerning mitigating circumstances.

Finally, it has been argued that if a jury recommendation of life should be binding upon the trial court, then a jury recommendation of death should also be binding. This argument possesses a symmetry which is superficially attractive. The difficulty is that is would create more problems than it would solve.

In essence, a “both ways binding” statute means a statute providing for jury sentencing. Thirty of the 37 American states with the the death penalty do have jury sentencing, but for Florida to adopt such a system would require several other changes to our statute: the jury’s verdict should be unanimous, and the jury should be required to give reasons for imposing the death sentence. Such changes could raise questions about the continued constitutional validity of the statute as a whole.

And it would simply not be worth the effort, since judge overrides in favor of life seem to be relatively rare. During the 13-year tenure of Florida’s modern death statute, judges have imposed death, following jury verdicts of life, in 87 cases.

The sort of asymmetry embodied in the present legislation is already fundamental to our system of criminal justice. At the guilt-innocence phase of a criminal trial, for example, a judge may enter a judgment of acquittal despite the jury’s rendition of a guilty verdict. But a jury’s rendition of a not guilty verdict is inviolate and not subject to judicial scrutiny, no matter how contrary to the weight of the evidence. The bill would do no more than extend this principle to the penalty phase of the trial.

In sum, the system is not working. The system degrades the role of the jury, and this, in effect, that of the community in our criminal justice system. Three-quarters of the jury overrides are overturned on appeal anyway. The override places Florida in the company of only two other American states with the death penalty. The Legislature should change this situation.

• Michael A. Mello is an assistant public defender for Palm Beach County. This article is adapted from his testimony before the Senate Judiciary Committee this spring.

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