Continuing its look at death penalty, the Supreme Court will hear argument on Tuesday in Hurst v. Florida1 to decide whether Florida’s practices in capital trials are constitutional. At issue in Hurst is whether a judge properly imposed a death sentence without the necessary fact-finding by a jury. Florida is one of the few states that gives capital sentencing power to judges.
The Supreme Court specifically approved Florida’s death penalty law in 1976, along with those in Georgia and Texas.2 They were the first states to reinstate the death penalty after the 1972 Supreme Court decision in Furman v. Georgia3 declaring death penalty laws in violation of the Eighth Amendment. The Court gave the Florida law its blessing despite concerns that the ultimate sentencing authority was the judge. Several years later, the Court specifically rejected a challenge to a death sentence imposed by a Florida judge even though a jury had recommended a life sentence.4
In order to understand what is happening in the Hurst case, we must look back at two other Supreme Court cases, Apprendi v. New Jersey5 and Ring v. Arizona6.
In 1994, Charles Apprendi fired several gunshots into the home of an African American neighbor. He pled guilty to possession of a firearm for an unlawful purpose, a charge carrying a maximum sentence of 10 years. At sentencing, prosecutors argued Apprendi should receive a harsher sentence because his intent in the shooting was to intimidate his neighbors because of their race, a violation of the state’s hate crime law. The judge agreed with the prosecution and sentenced him to 12 years.
When Apprendi v. New Jersey reached the Supreme Court, it determined that the State had violated the defendant’s Sixth Amendment right to due process because it failed to let a jury determine the facts necessary to justify the enhanced sentence. Justice Stevens, writing for the majority, said, “Other 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.”7
In 2002, the case of Timothy Stuart Ring reached the Supreme Court. Ring’s attorneys argued that, based on the Court’s decision in Apprendi, it must strike down a provision in Arizona’s death penalty law. The provision had allowed the judge in Ring’s case to decide whether there were aggravating factors in the case – aggravating factors that were necessary to authorize imposition of a death sentence.
Justice Scalia, in a concurrence in the Ring v. Arizona8 decision, wrote: “I believe that the fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives – whether the statute calls them elements of the offense, sentencing factors, or Mary Jane – must be found by the jury beyond a reasonable doubt.” In other words, the Court sided with Ring, saying factual findings that are needed to make a defendant eligible for the death penalty – which, in Arizona, included the presence of an aggravating factor – must be made by a jury, beyond a reasonable doubt, before a death sentence can be imposed.
Now, finally, we come to the case of Timothy Lee Hurst. Hurst was convicted of murder9, and a sentencing jury10 recommended the death penalty by a vote of 7 to 5. Although the jury was told they could not recommend the death penalty without finding an aggravating factor, they did not indicate which of the two aggravating factors presented by the prosecution, if any, they found to be established. Nonetheless, Hurst was sentenced to the death penalty by the judge, who found two aggravating circumstances to be present.
Hurst asserts that no aggravating factor was found by a jury, beyond a reasonable doubt, in violation of the Apprendi/Ring requirement. The State’s response argues first that the aggravating factor of a killing during a robbery was admitted by Hurst’s attorneys’ characterization of the death as a result of a “robbery gone bad”; second, that the jury’s recommendation of the death penalty included a finding of an aggravating factor, given that their instructions indicated they could not recommend the death penalty unless they found at least one aggravating factor. According to the State, it doesn’t matter whether the seven jurors agreed on which aggravating factor was present.
Hurst maintains that a lawyer’s off-hand statement about a robbery is in no way equivalent to a jury finding of that fact beyond a reasonable doubt. Moreover, the mere recommendation of a death sentence (by the slightest majority) fails to demonstrate that the jury found the necessary facts to make the defendant eligible for that sentence beyond a reasonable doubt, as required byRing v. Arizona. Amicus briefs filed on behalf of former Florida circuit and supreme court justices provide strong support for Hurst’s position that the Florida law is unconstitutional.
Interestingly, the Court has asked both Hurst and Florida to address the question: “Whether Florida’s death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court’s decision in Ring v. Arizona.” Given that Apprendi and Ring are both grounded exclusively in the Sixth Amendment and its guarantee of a jury trial, the Court’s reference to the Eighth Amendment is puzzling. Amicus briefs by the ACLU in support of Hurst and by Alabama and Montana in support of Florida address the issue of whether judges should be permitted to impose death sentences at all, under the Eighth Amendment. They also look at whether a jury’s recommendation of the death penalty must be unanimous. It remains to be seen whether the Court decides to tackle these additional questions.
This piece is one in a continuing series by our newest board member, Ursula Bentele. Ursula is a renowned Supreme Court scholar, who will look at some of the Court’s cases with a particular eye towards those with implications for the death penalty. Once the Court has heard oral arguments and delivers its opinions, she will reflect on those outcomes and comment on how the Court’s resolution of the issues might affect the future of the death penalty in this country.
- No. 14-7505.
- See Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976).
- 408 U.S. 238 (1972).
- Spaziano v. Florida, 468 U.S. 447 (1984).
- 530 U.S. 466 (2000). Apprendi was actually foreshadowed a year earlier by Jones v. United States, 526 U.S. 227 (1999), involving a federal car jacking statute presenting a similar issue, but the principle has generally been referred to as the Apprendi rule.
- 536 US 584 (2002).
- Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
- Ring, 536 U.S. at 610 (Scalia, J., concurring).
- Hurst was charged with both felony murder (based on a robbery) and intentional murder. The jury’s verdict did not specify which theory it accepted.
- It was actually the second sentencing jury. Hurst’s first death sentence was reversed by the Florida Supreme Court because defense counsel was ineffective, failing to investigate and present mitigating evidence.