The Constitutional Catch-22 of Florida’s Capital Sentencing Scheme

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Sturm College of Law


Florida, Capital sentencing, Death penalty, Hurst


During argument in Hurst v. Florida, the United States Supreme Court grappled with the constitutionality of the Florida death penalty statute. In doing so, it revealed what many of us have long argued—that the Florida capital scheme is spectacularly, flamboyantly unconstitutional and that Florida seems not much to care. As former United States Solicitor General Seth Waxman argued to the Court on Monday on behalf of condemned inmate Timothy Lee Hurst, the problem lies in the unique structure of Florida’s death penalty statute. Like most states, Florida requires that the jury find an aggravating factor before a defendant can be sentenced to death. The proven aggravating factor or factors are then weighed against any mitigating evidence to arrive at the appropriate sentence for each capital defendant. It is here, however, that Florida’s statute diverges from those of other states. Florida law instructs capital juries that their decision-making with regard to life or death is merely advisory and that the judge will have the ultimate say with regard to whether the defendant lives or dies.

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