For Florida’s Troubled Death Penalty, Prosecutor’s Refusal to Enforce It Is Latest Challenge

Florida’s death penalty has been roiled by controversy for decades, marred in the past by botched executions — including one that resulted in the retirement of “Old Sparky” — and, more recently, by court rulings condemning the way defendants were sentenced to death.

It’s been more than a year since a U.S. Supreme Court ruling, in a case known as Hurst v. Florida, put executions on hold and sent the death penalty into a state of limbo.

The latest controversy over a Central Florida prosecutor’s decision not to seek death sentences in capital cases — and Gov. Rick Scott’s swift removal of her from a high-profile case involving an accused cop-killer — has quickly galvanized longtime opponents of the death penalty.

“This could be the spark that sets it off for a real conversation nationwide, not just in Florida,” retired Florida Supreme Court Justice James E.C. Perry, an outspoken critic of the state’s death penalty system, told The News Service of Florida in a telephone interview. “Most transformative acts did not take a majority of the people. Only a few people started it, and it gained momentum. This could be one of those moments.”

But Senate President Joe Negron said the controversy swirling around the death penalty almost certainly will not diminish lawmakers’ support.

“There’s a strong consensus that the death penalty is an appropriate sanction for certain horrific murders that are committed,” Negron, R-Stuart, said. “I think that when the state is seeking to potentially execute a citizen for his crimes, there should be a very high level of scrutiny and due process. I also think that our current system provides that. I think it’s important that in certain egregious cases the judge and jury should be given the legal option of the death penalty.”

More than a decade ago, the American Bar Association called for a moratorium on Florida executions, based on a study that said the system was dogged by problems involving racial disparities, fairness and a lack of oversight.

More recent studies have provided additional evidence to bolster criticism of the death penalty in Florida, which leads the nation in Death Row exonerations.

Florida opponents of the death penalty, including many Democratic legislators, have renewed calls for a moratorium, seeking further review of geographic and racial inequities regarding who is charged with the death penalty and eventually executed.

But with Scott and Republican legislative leaders strongly supporting the death penalty, such a moratorium is unlikely.

“There’s no doubt, if you look at national trends, that the Florida Legislature’s and governor’s office insistence place them in a handful of states that are actively trying to devise a system which is going to produce death sentences,” said University of Miami law professor Scott Sundby, who has researched the behavior of juries in death penalty cases.

The U.S. Supreme Court 8-1 ruling in the Hurst case in January 2016 found that Florida’s system of allowing judges to find the facts necessary to impose the death penalty was an unconstitutional violation of the Sixth Amendment right to trial by jury.

That decision prompted the state Supreme Court to put an indefinite hold on two executions scheduled by Scott and spurred the Legislature last year to hurriedly pass a measure aimed at addressing the constitutional problems. The law also required at least 10 jurors — instead of the old law’s requirement of a simple majority of jurors — to recommend death.

Of the nearly three dozen states with the death penalty, Florida was then one of only three — including Delaware and Alabama — that did not require unanimous jury recommendations for the sentence. Delaware has since abandoned the death penalty.

The Florida Supreme Court last fall struck down the revised statute, saying that, as in every other type of case, unanimous jury recommendations are required in death-penalty sentencing.

Once again, lawmakers rushed to address the court decision during this year’s legislative session and sent a measure requiring unanimous jury recommendations — the first bill to pass both chambers — to Scott. He signed the legislation on March 13.

But, while the governor and the Republican-dominated Legislature may believe the new law resolved Florida’s court-related problems, 9th Judicial Circuit State Attorney Aramis Ayala focused a new spotlight on the death penalty when she announced days later that she would not seek death sentences in any cases during her time in office.

Ayala, whose circuit includes Orange and Osceola counties and who is the first black state attorney elected in Florida, said she reached her conclusion after deciding that “doing so is not in the best interest of this community or the best interest of justice.”

She cited research showing death sentences are not a deterrent to crime, are prohibitively costly and do a disservice to victims’ families, who may wait decades without seeing those convicted of killing their loved ones finally executed.

But Ayala’s decision not to pursue the death penalty for Markeith Loyd — accused of killing his pregnant ex-girlfriend, Sade Dixon, and the execution-style killing of Orlando Police Lt. Debra Clayton — sparked outrage from Republican lawmakers, Scott and Attorney General Pam Bondi and resulted in calls for the state attorney’s ouster.

Ayala is challenging Scott’s removal of her from the Loyd case. The governor reassigned it to Brad King, an Ocala-area state attorney who is an outspoken proponent of the death penalty. Meanwhile, more than 100 law professors and legal experts — including two former state Supreme Court chief justices and onetime Florida State University President Talbot “Sandy” D’Alemberte – have accused Scott of overstepping his authority by ousting Ayala as prosecutor in the case.

For many blacks, especially in Southern states like Florida, the death penalty is rooted in a history of discrimination and remains a stark reminder of lynch mobs. Adding to racial tensions, Florida has never executed a white defendant whose victim was black, something critics are quick to highlight.

“Race has always been an issue in the death penalty, whether it’s Florida or anyplace,” said Florida International University law professor Stephen Harper, who runs the school’s Death Penalty Clinic.

A University of North Carolina study released last year that examined executions in Florida between 1976 when the death penalty was reinstated, and 2014, found that, while about 56 percent of Florida victims were white, nearly three-fourths of all executions involved white victims. More than 70 percent of the black defendants executed in Florida had been convicted of murdering white victims, the study found.

Of the 396 inmates on Death Row, 154 — or nearly 40 percent — are black, according to the Death Penalty Information Center. The ratio of African-Americans awaiting execution is more than double the percentage of blacks in the state’s overall population.

Few believe that the controversy swirling around Ayala, Scott and inequities in the administration of the death penalty in Florida will spur significant changes, at least in the short run.

“I don’t think it will have any impact that way,” said Bernie McCabe, the state attorney in the 6th Judicial Circuit in Pasco and Pinellas counties.

But Scott’s removal of Ayala from the Loyd case and her arguments against the death penalty — that it is unfair to victims and that its implementation discriminates against minorities — have injected newfound enthusiasm into the opposition.

“I think this is a defining moment in the struggle to end the death penalty in Florida. I really do,” said Mark Elliott, director of Floridians Against the Death Penalty, which is among a number of organizations that have planned a rally Thursday at the Capitol to call attention to the issue.

–Dara Kam, News Service of Florida