On Tuesday, October 13, the United States Supreme Court will consider whether Florida’s death penalty statute is unconstitutional in Hurst v. Florida. In almost every other state, unanimous juries are required to sentence an individual to death. However, Florida only requires a simple majority of jurors to make a sentencing recommendation to the judge, who then makes the final decision on the existence of aggravating factors and the actual sentence. A majority of jurors need not agree on which aggravating factors exist or whether they found them beyond a reasonable doubt.
Justice John Roberts recently wrote: “The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among jurors themselves.” Blueford v. Arkansas, 132 S. Ct. 2044, 2051 (2012). Similarly, Justice Anthony Kennedy wrote (while still a federal circuit judge): “The dynamics of the jury process are such that often only one or two members express doubt as to [the] view held by a majority at the outset of deliberations … A rule which insists on unanimity furthers the deliberative process by requiring the minority view to be examined and, if possible, accepted or rejected by the entire jury.” United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir. 1978).
By not requiring unanimous death verdicts, which are required in every state that uses the death penalty except three, Florida returns an unusually high number of death sentences. By looking only at unanimous jury verdicts in the last 5.5 years, you can see that the use of the death penalty is much more geographically isolated in the state than it would appear at first glance. If the state had required unanimity, between January 2010 and June 2015, there would have been 70% fewer death verdicts, in less than half as many counties. Only four counties out of 67 returned more than one unanimous death sentence in the last 5.5 years.