Conventional wisdom suggests that Florida loves the death penalty. The state currently has 390 inmates awaiting execution, more than any other state but California (which has 20 million more residents). They were the first state to pass a law reinstating the death penalty after the Supreme Court struck down state death penalty laws in 1972. In 1999 Howard Simon, executive director of the ACLU of Florida argued that the state’s legislature had an “obsession with electrocution as a method of execution.” Current Governor Rick Scott has seen more inmates executed during his tenure than any other modern Florida governor and signed a bill to speed up the execution process. Just last month, Florida State Senator Thad Altman, a Republican who has pushed to revise the death sentencing procedure for years, told the New York Times that his state’s legislature is “very pro-death penalty” and averse to being perceived as “being soft on crime in any way.” Florida has been at the forefront of some of the death penalty’s more gruesome innovations including a custom electric chair for a 344 pound inmate, and the use of “purple moon suits” to disguise the identity of doctors assisting with executions from the American Medical Association, whose code of ethics forbids their participation. The custom electric chair was widely criticized in part because a large blood stain appeared on the inmate’s chest during the execution. A spokesman for then Governor Jeb Bush defended the procedure saying “We are absolutely, 100 percent comfortable that the chair performed flawlessly…Everybody’s getting all worked up about a nosebleed.”
But earlier this year, the state encountered a serious obstacle to its favorite form of punishment. In January, The Supreme Court declared Florida’s death-sentencing procedure unconstitutional. This left lawmakers in a state with “one of the nation’s most crowded death rows” scrambling to establish a new procedure. The court’s ruling hinged on the role Florida gave judges in determining whether prosecutors had proven the existence of aggravating factors required for a death sentence, but the case has opened up a broader conversation about Florida’s much-criticized, and expedited, death-sentencing process. Florida is currently one of two states to require only a simple majority (7 members of a 12 person jury) to recommend a death sentence. Every other death penalty state requires a unanimous verdict or, in the case of Alabama, a supermajority. Work by Florida’s Village Daily Sun recently found that juries did not agree unanimously on the death sentence in 75% of cases against current death row inmates. That means that if those 291 individuals had committed their crimes in any other state (but Alabama) they would not be facing death.
Geography isn’t the only concerning disparity at work in Florida. As in the rest of the country, Florida’s implementation of the death penalty has been profoundly marked by race and gender disparities. Just how profoundly marked? For that we can look to UNC Chapel Hill Professor Frank Baumgartner’s recently published report on Florida executions. Generally, crimes against Whites are more likely to result in the death penalty than crimes against Blacks. This trend holds in Florida. According to Baumgartner 72% of Florida’s executions since 1976 have been for crimes involving White victims, “despite the fact that 56% of all homicide victims are White.” This means that White homicide victims are overrepresented among victims of the executed – their killers are more likely than killers of Blacks to receive the harshest form of punishment deployed by the state. Similarly, 43% of executions carried out in Florida have been for homicides with female victims, but only 26% of all homicide victims are female. Unsurprisingly then, Baumgartner finds that homicides involving White female victims are 6.5 times more likely to result in an execution than homicides in involving Black male victims.
The majority (over 80%) of all homicides occur intra-racially, meaning that the perpetrator and victim are of the same race. So in the absence of some kind of racial bias we would expect convictions and executions for inter-racial homicides to be relatively rare, and convictions and executions for intra-racial homicides to be the norm. In Florida however, 71% of the executions carried out against Black inmates were for homicides involving White victims. Florida has never executed a White person for a homicide involving a Black victim. In the absence of systematic race and gender bias, these figures are incomprehensible.
Florida has also has seen 26 individuals exonerated from its death row – more than any other state. The rise of death row exonerations (thanks largely to advances in DNA technology) has been associated with national shifts away from support for capital punishment. And similar shifts are being seen in Florida. According to a February poll by Public Policy Polling, a majority (62%) of Floridians prefer life in prison over the death penalty as a punishment for murder. An even greater majority (73%) support requiring unanimous jury decisions to apply the death penalty.
Across the United States, executions are at their lowest rate in 20 years. In 2015, Nebraska joined 19 other states by abolishing the death penalty, and a year after voting to revive the firing squad, Utah’s Republican legislature just came up one vote short on a bill abolishing the death penalty. Lethal injection drugs are increasingly difficult to acquire since the European Union banned their export a decade ago, forcing some states to forestall or reconsider executions. And scholarship continues to demonstrate significant race and gender disparities determining who is executed and whose killers are executed. Since their procedure was struck down, two Florida executions were stayed and in one case a judge told prosecutors that they could not seek a death sentence since “there currently exists no death penalty in the state of Florida.” So, will these historic shifts in public opinion and this taste of a world without the death penalty lead Florida to join the rest of the civilized world?
No. Or at least not anytime soon.
On March 7th, Governor Rick Scott (of most-executions infamy) signed a bill revamping death-sentencing procedures, and allowing the state to resume executions. Under the new law, at least 10 of 12 jurors have to agree that a case involves aggravating circumstances in order to recommend a death sentence. It’s unclear what the SCOTUS ruling will mean for those already on death row. Could the almost 400 inmates who were sentenced through an unconstitutional procedure be retroactively saved?
Not if Florida has anything to say about it. The Supreme Court heard arguments about the retroactive application of their ruling in February. The state’s representatives argued against retroactive application.
Florida has 3 executions scheduled in March.