Sentencing: taking Florida further into "Apprendi-land".

• Author: Batey, Robert
• Position: Apprendi v. New Jersey

When the U.S. Supreme Court handed down its opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000), there was much speculation about its meaning, both nationwide and for Florida. (2) With the Court's recent decisions in Ring v. Arizona, 122 S. Ct. 2428 (2002), and Harris v. United States, 122 S. Ct. 2406 (2002), we now know a bit more about what Apprendi signifies. (3) This article discusses how Ring and Harris impact Florida law, including the changes they will necessitate.

The critical holding in Apprendi was that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (4) Ring considered how this holding applied to capital sentencing proceedings, and Harris, to the use of mandatory minimums in noncapital sentencing. As developed more fully below, Ring portends important charges for Florida, requiring a rewriting of Florida's death penalty statute, while Harris promises far less significant impacts on sentencing to terms of imprisonment.

Capital Sentencing

In Ring, the Court evaluated Arizona's death penalty procedure, under which the trial judge alone determines the existence of any aggravating circumstance--which is necessary before a capital sentence may be imposed--and makes the ultimate choice between death and life imprisonment. By a vote of seven to two, the Court held that this procedure violated Apprendi because "[c]apital defendants, no less than non-capital defendants, ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." (5) Thus, juries must participate in the capital sentencing process.

This decision clearly casts constitutional doubts on Florida's death penalty procedure. (6) Under F.S. [section] 921.141, the jury participates in the death penalty proceedings, but its role is explicitly labeled "advisory." Rather, it is the trial judge who makes the final decision, "[n]otwithstanding the recommendation of ... the jury." (7) Accordingly, under Florida law, a judge may sentence a defendant to death over the objection of the jury, which clearly violates the rule laid down in Ring.

Thus, at a minimum, Ring requires amendment of [section] 921.141 to remove the language allowing the judge to override the decision of the jury. (8) But further changes will be necessary. Because a fundamental requirement of the U.S. Supreme Court's death penalty jurisprudence is that the capital decision-making process must provide a framework that guides the exercise of sentencing discretion, (9) the statute must spell out how the jury is to make its decision regarding the death penalty. In making the necessary changes, however, the Florida Legislature will probably want to deviate as little as possible from the current statute, in order to discourage the new challenges that wholesale changes might spark.

The statute currently requires the following decision-making process. The jury should consider "(a) Whether sufficient aggravating circumstances exist ...; (b) Whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist; and (c) Based on these considerations, whether the defendant should be sentenced to life imprisonment or death." (10) Pursuant to Ring, specific jury findings with regard to subsections (a), (b), and (c) should be required. Otherwise, we will never know which aggravators and mitigators the jury found. Without that knowledge, proportionality review of individual death sentences--which the Florida Supreme Court considers an integral part of its statutorily mandated review of every death case (11)--would be nearly impossible.

So at the end of each capital sentencing proceeding, the jury should receive a verdict form (12) listing each of the aggravating and mitigating circumstances propounded by the state and the defense, and asking for a specific finding from the jury regarding each factor. As its final finding, the form should ask the jury to balance the factors found and thereby determine whether the penalty should be death or life imprisonment. Any procedure that contemplates less specific findings by the jury would seem to disable meaningful proportionality review. (13)

In addition to these required changes in Florida's death penalty statute, there is the further question of the level of agreement the jury must reach with regard to each of these findings. Section 921.141 currently provides that the jury may render its advisory opinion by "majority" vote. (14) Except for jury findings regarding mitigating circumstances, (15) this will surely not pass constitutional muster. As the U.S. Supreme Court has strongly implied, any vote by a 12-person jury in a criminal case that is less than nine-to-three in favor of the state fails to satisfy the Sixth Amendment's right to trial by jury. (16) And more may be required in a capital case, because of the Court's continuing recognition that "death is different," that death penalty cases require what some have called "super due process." (17) And yet more may be required in Florida, with its long history of requiring unanimous jury verdicts in criminal cases. (18)

Consequently, it seems safest to require jury unanimity regarding any proposed aggravating circumstance and the final choice of death over life imprisonment. Unanimity is the norm among those jurisdictions in which the jury makes the capital punishment decision, (19) and Florida should join this group. (20)

Even with these changes, the current statutory language regarding the judge's role in the death penalty decision should largely remain in force, thus minimizing the changes in [section] 921.141. The statute requires that the judge make written findings tracking the jury...