On October 13, 2022, twelve jurors returned a life sentence verdict for Nikolas Cruz, the gunman who opened fire on students and staff at Marjory Stoneman Douglas High School in Parkland, Florida, in 2018—leaving seventeen dead and seventeen injured.[i] Approximately a year before the verdict was returned, Cruz pleaded guilty to seventeen counts of first-degree murder and seventeen counts of attempted first-degree murder.[ii]

Under Florida law, when a defendant has been convicted or adjudicated guilty of a capital felony, the trial court is to conduct a separate sentencing proceeding called a penalty phase trial.[iii] At this proceeding, a jury is impaneled for the sole purpose of determining whether the defendant should be sentenced to death or life imprisonment by weighing aggravating and mitigating factors.[iv] Unless the defendant waives his or her right to this proceeding, he or she is entitled to it.[v] Florida law also requires that the jury’s verdict be unanimous to impose the death penalty.[vi]

Since Cruz pleaded guilty and did not waive his right to this proceeding, his penalty phase trial was conducted before a jury impaneled for the sole purpose of determining whether Cruz should be sentenced to death or life imprisonment.[vii] The jury’s life verdict came as a result of the jury’s failure to reach a unanimous decision on whether Cruz should be sentenced to death.[viii] Three out of twelve jurors voted to spare Cruz’s life, which required the imposition of a life sentence.[ix]

The Parkland trial has been the subject of media scrutiny, and its verdict sparked a national wave of outrage—so much so that Florida Governor Ron DeSantis is calling for change. The Florida Legislature has just introduced two bills seeking to amend Florida Statute section 921.141, also known as Florida’s death penalty sentencing statute.[x] The bills are identical versions of each other, filed both in the House and the Senate.[xi] If passed, these bills will amend three significant aspects of section 921.141.

First, the bills seek to amend the statute’s current language, which states that the jury must “determine the issue of the imposition of the death penalty,” to the jury must “make a recommendation as to the imposition of the death penalty.”[xii] Second, the bills add that notwithstanding this jury recommendation, the trial judge, “after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death, but if the court imposes a sentence of death, it shall set forth in writing its findings upon which the sentence of death is based as to the facts . . . .”[xiii] These proposed changes are significant because they would make a jury’s findings in a penalty phase trial merely advisory and not binding. Further, they would allow a trial judge to override a jury’s recommendation for a life sentence and impose a sentence of death. If passed, these two amendments are unlikely to pass constitutional muster because they are precisely what the United States Supreme Court ruled unconstitutional in both Hurst v. Florida[xiv] (hereinafter referred to as Hurst I) and Apprendi v. New Jersey.[xv]

 In Hurst I, the Court struck down Florida’s previous death sentencing scheme, which required the trial court to weigh the aggravating and mitigating circumstances and enter a sentence of life imprisonment or death.[xvi] Under this sentencing scheme, the jury recommended a sentence, but it did not make specific factual findings regarding the existence of mitigating or aggravating circumstances.[xvii] Further, although the trial judge was required to give great weight to the jury’s recommendation, its recommendation was not binding on the trial judge.[xviii] The sentencing order had to reflect the trial judge’s independent judgment about the existence of aggravating and mitigating factors.[xix] The Court ultimately held that the Sixth Amendment to the United States Constitution requires that a jury—not a judge—find each element necessary to impose the death sentence.[xx]

The Court in Hurst I relied on its decision in Apprendi, in which it held that criminal sentences cannot be enhanced above the limits provided by statute unless the jury finds the existence of the specific aggravating factors giving rise to the enhancement beyond a reasonable doubt.[xxi] The Court also relied on its decision in Ring v. Arizona, in which it held that Arizona’s capital sentencing scheme violated Apprendi’s rule because the state allowed a trial judge to find the facts necessary to sentence a defendant to death.[xxii]

The proposed amendments to Florida’s death penalty sentencing statute seek to do more than change the jury’s “determination” to a “recommendation,” and allow the trial judge to override that recommendation. They also aim to dispose of Florida’s jury unanimity requirement in the imposition of the death penalty by allowing the jury to recommend the death penalty with only eight of the twelve jurors in favor, which would make Florida the only state to use that standard.[xxiii] This is the third significant aspect of the statute that the proposed bills seek to amend, and it is not the first time that Florida attempts to do so.

Until 2016, when Hurst I was decided, Florida law allowed trial judges to impose death sentences based on majority jury recommendations.[xxiv] After Hurst I was decided, the Florida Legislature quickly passed a measure that required ten jurors in favor before a death sentence could be imposed.[xxv] The 10-2 requirement was an attempt by the Florida Legislature to carry out the Hurst I ruling but did not last long.[xxvi] It was struck down by the Florida Supreme Court in Perry v. State in October of 2016.[xxvii] The same day that Perry was decided, and on remand from the United States Supreme Court, the Florida Supreme Court held in Hurst v. State (hereinafter known as Hurst II) that unanimous jury recommendations were required for the imposition of the death penalty.[xxviii] The Florida Legislature again responded to the Hurst II ruling and enacted the jury unanimity requirement into law.[xxix] Finally, in 2020, the Florida Supreme Court disposed of the unanimity requirement before a death sentence can be imposed in State v. Poole,[xxx] but the unanimity requirement has remained in law.[xxxi]

The next step for the bills is to be assigned to a committee. Each bill will be discussed in its respective chambers when the legislature convenes in March.[xxxii] The Parkland verdict is the likely catalyst for Florida’s move to amend its death penalty sentencing statute.[xxxiii] It is clear that the message behind the proposed bills is that the 8-4 requirement would ensure that Parkland never happens again and that if it had been in place at the time of Cruz’s penalty phase trial, his life would not have been spared. But abandoning the unanimity requirement will leave significant room for error, systematic unfairness, and the high costs associated with the death penalty in general. If Florida enacts this legislation, it will only make it much easier for the State to execute people, leaving far less room for deterrence and justice.

[i] See Mike Hayes & Aditi Sangal, Parkland shooter Nikolas Cruz formally sentenced, CNN, https://www.cnn.com/us/live-news/parkland-shooter-nikolas-cruz-sentencing-11-02-2022/index.html (last updated Nov. 2, 2022, 5:55 PM).

[ii] See id.

[iii] See Fla. Stat. § 921.141.

[iv] See id.

[v] See id.

[vi] See id.

[vii] See Dakin Andone, Here’s why the Parkland shooter is facing a jury even though he has already pleaded guilty, CNN (Apr. 10, 2022, 3:01 AM), https://www.cnn.com/2022/04/10/us/nikolas-cruz-penalty-phase-explainer/index.html.

[viii] See Non-Unanimous Florida Jury Sentences Nikolas Cruz to Life Without Parole for Parkland School Shootings, Death Penalty Info. Ctr.(Oct. 31, 2022), https://deathpenaltyinfo.org/news/non-unanimous-florida-jury-sentences-nikolas-cruz-to-life-without-parole-for-parkland-school-shootings.

[ix] See id.

[x] See Carissa Allen, Lawmakers propose making it easier to impose death penalty in Florida, WUFT News (Jan. 31, 2023), https://www.wuft.org/news/2023/01/31/lawmakers-propose-making-it-easier-to-impose-death-penalty-in-florida.

[xi] See id.

[xii] See H.R. 555, 125th Reg. Sess. (Fla. 2023); see also S. 450, 125th Reg. Sess. (Fla. 2023) (emphasis added).

[xiii] See id.

[xiv] See Hurst v. Florida, 577 U.S. 92 (2016).

[xv] See Apprendi v. New Jersey, 530 U.S. 466 (2000).

[xvi] See Hurst, 577 U.S. at 95–96.

[xvii] See id.

[xviii] See id. at 98–99.

[xix] See id. at 96.

[xx] See id. at 102.

[xxi] See Apprendi, 530 U.S. 466.

[xxii] See Ring v. Arizona, 536 U.S. 584 (2002).

[xxiii] See H.R. 555, 125th Reg. Sess. (Fla. 2023); see also S. 450, 125th Reg. Sess. (Fla. 2023).

[xxiv] See Colin Hackley, Florida may drop the unanimous jury requirement in death penalty cases, WFSU (Jan. 31, 2023, 10:27 AM), https://news.wfsu.org/state-news/2023-01-31/florida-may-drop-the-unanimous-jury-requirement-in-death-penalty-cases.

[xxv] See id.

[xxvi] See id.

[xxvii] See Perry v. State, 210 So. 3d 630 (Fla. 2016).

[xxviii] See Hurst v. State, 202 So. 3d 40 (Fla. 2016).

[xxix] See Hackley, supra note xxiv.

[xxx] See State v. Poole, 297 So. 3d 487 (Fla. 2020).

[xxxi] See Hackley, supra note xxiv.

[xxxii] See Amber Raub, Two new bills aim to change unanimous vote in death penalty cases, WPEC News (Feb. 1, 2023), https://cbs12.com/news/local/two-new-bills-aim-to-change-unanimous-vote-in-death-penalty-cases-february-1-2023.

[xxxiii] See Anthony Izaguirre & Terry Spencer, Florida could end unanimous jury requirement for executions, ABC News (Feb. 2, 2023, 1:51 AM), https://abcnews.go.com/US/wireStory/florida-end-unanimous-jury-requirement-executions-96840774.