Florida has a unique chance to change the calculus on the death penalty, to make it more fair, and to allow it to withstand constitutional scrutiny in the future. Here are my suggestions
- Keep it so that there is no unanimity requirement. Nothing fosters arbitrariness greater than a single juror veto. Require that the verdict be at least 10-2 in favor of death.
- Eliminate simple robbery and felony murder aggravating circumstances. This alone would virtually eliminate any racial or economic disparities.
- In addition to concrete aggravating circumstances, specific motives proven beyond a reasonable doubt should make a killer eligible for death. Examples of this being if the killer enjoyed the crime, if the killer was motivated by racial/ethnic/religious/gender bias, or if someone in the course of a robbery kills an unresisting victim or a witness to the robbery. For more on this, read the model death penalty statute by Professor Robert Blecker
- In a mirror of the Pennsylvania law, if the jury finds that there is at least one aggravating circumstance and no mitigating circumstances, the deliberations cease and the penalty must be death. In the same manner, if the jury finds that there are mitigating circumstances present but the aggravating circumstances outweigh them, the deliberations cease and the penalty must be death. The Supreme Court found this to be constitutional in Blystone v. Pennsylvania
- In the event that non-unanimous verdicts of death are found to be unconstitutional, in a mirror of the Arizona law, the failure to achieve unanimity gives the prosecution the option to impanel a second sentencing jury. If that jury is unable to reach a verdict, the penalty shall be life without parole. In addition, if a majority of the first jury does not vote for death, then the sentence shall be life without parole.
- Any appellate claim that is not related to actual innocence is defaulted at the conclusion of the inmate's state collateral appeals.
- A six month time limit from the conclusion of briefing of an appeal or oral argument in said appeal to the time that an appellate decision must be reached. If the court fails to issue a decision in that time frame, the decision of the lower court is automatically affirmed. If the appeal is in the trial court, then the sentence is automatically affirmed and it is moved along to the state appellate court.
I think these could dramatically improve the death penalty while truly limiting it to the worst of the worst and neutralize arguments against it. If anyone has any questions, I'd be happy to clarify.
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