A few (too) quick thoughts on the post-Hurst hydra

As reported in this post, the Supreme Court via Hurst finally clarified today what most sensible folks long argued, namely that Florida’s death penalty procedures have Sixth Amendment problems in light of the Supreme Court’s 2002 ruling striking down Arizona’s similar judge-dependent system in Ring v. Arizona.  Kent Schneidegger in this post at Crime & Consequences highlights why this was not really a surprise and why what’s next is the interesting issue now to follow:

Most of the states with similar systems went with jury verdicts on both the aggravating circumstance and the final sentencing decision, although Nebraska kept a hybrid system where the jury finds the circumstance and three judges find the sentence.

The Florida Legislature foolishly stuck with its system, hoping that the courts would find it distinguishable from the Arizona system struck down in Ring.  I tried to tell them that was insane.  They didn’t listen.  Today the U.S. Supreme Court decided 7-1-1 in Hurst v. Florida that the Florida system does indeed violate Ring.

How many of the existing judgments can be salvaged?  The Supreme Court said it left harmless error analysis to the state courts.  In many cases, a jury verdict on a concurrent or prior crime can establish an aggravating circumstance.  Today’s decision will be fully retroactive for cases on direct appeal, but its application to cases on collateral review is uncertain.

The first thing the Florida Legislature needs to do is fix its system.  And do it right this time.

Before turning to what Hurst may mean for the roughly 400 persons now on death row in Florida, I must first note that the two Floridians currently running to be US Prez should both be  held responsible for the capital mess Florida now finds itself in.  Jeb Bush was Gov of Florida when Ring was decided, and Marco Rubio was in the state legislature (and was not long thereafter to become Speaker of the Florida House).  I hope that anyone troubled by the mess that Hurst creates for Florida’s criminal justice system will direct some of their frustration to (and ask some hard questions of) this Sunshine State pair.

As for the mess that Hurst will create, I am coining the term “post-Hurst hydra” to describe what will likely be multi-headed, snake-like litigation that will grow and grow again in Florida’s courts (both state and federal).  Whether the Sixth Amendment can be deemed harmless in some cases on direct appeal and whether/how Hurst will be applied retroactively in collateral cases — e.g., is Hurst a new rule or just an application of Ring? — is sure to engender some interesting mythology-like discussions in state and federal courts in the months ahead.

Also, not to be overlooked as we take stock of the post-Hurst world, is whether any other states’ capital systems might be subject to another round of procedural attack now.  Alabama comes to mind because some of its nearly 200 death sentences were imposed via jury override by sentencing judges, though I am not sure if any of these are formally based on the judicial fact-finding found unconstitutional in Ring and Hurst.  Similarly, it seems likely that creative capital defense lawyers will find creative ways to attack other death sentences in other jurisdictions based on something in Hurst.

Prior related post:

• SCOTUS strikes down Florida’s capital sentencing scheme based on Sixth Amendment