DeSantis Pushes for Tougher Laws in Florida

February 8, 2023 Don Pumphrey, Jr. Criminal Defense Social Share

Florida State Governor Ron DeSantis addressed that the state should become tougher on crimes. While giving a news conference at the Miami Police Benevolent Association, DeSantis stated that Florida is a “law and order state.” DeSantis is now proposing several laws to be reformed to crack down on crime in the state.

This article will provide information on DeSantis’ proposal for law reform, along with information on the death penalty and responses to the possible change to a supermajority capital punishment vote.

Governor’s Plan for Florida

The following is a list of potential amendments to Florida’s laws that Gov. DeSantis plans to present to the Florida Legislature:

• Fentanyl – DeSantis plans to propose making it a first-degree felony offense for any person caught in the possession of, the possession with the intent to sell, or the manufacturing of fentanyl that looks like candy. DeSantis wants to the implement a mandatory life sentence and a $1 million penalty for potential drug dealers who are targeting children and young adults. In addition, DeSantis’ office plans to allocate $20 million for law enforcement agencies to increase efforts to stop the illicit sale and trafficking of fentanyl.
• Sexual Predators and Capital Punishment – Florida’s capital punishment is usually only implemented in homicides or other extremely severe cases. However, the Governor is now “exploring ways” to “facilitate some capital trials if you have the worst of the worst [sex predators].” When speaking of sexual predators in Florida DeSantis said, “I believe the only appropriate punishment that would be commensurate to that would be capital.” At the very least, DeSantis is suggesting life in prison, because, “[sexual predators] will re-offend if you put them back on the street.” Note. Florida does already have a capital sexual battery offense, capital sexual battery is charged when the offender is over 18 years old, and the offender commits a sexual battery upon a victim who is less than 12 years old.
• Supermajority for Capital Punishment – After the sentencing of the Parkland shooter trial, DeSantis is pushing for abolishing the unanimous vote Florida currently requires to implement the death penalty. This will be addressed further in the following section.

Supermajority for Capital Punishment

While visiting with the Florida Sheriff’s Association in January 2023, Gov. DeSantis discussed his desire to change the regulations for the death penalty. Currently, the state of Florida requires several steps before considering the death penalty for a criminal offense.

First, the alleged offense must be considered a capital crime. The following are examples of capital crimes in Florida:

• First-degree Murder
• Capital Drug Trafficking
• Armed Kidnapping
• Felony crimes with especially heinous death or sexual components

According to Florida Statute Section 921.141, once a defendant has been convicted of a capital felony, there shall be a separate sentencing from the court to determine if the defendant shall receive life in prison without parole, or capital punishment.

Currently, the jury must find aggravating factors (also referred to as aggravating circumstances) before the jury can recommend the death penalty. Aggravating factors are the circumstances surrounding a crime which is sufficient to raise its severity and punishment to the aggravated version of the offense. Under Florida Statue Section 921.141, aggravating factors shall be limited to the following:

• The capital felony was committed by a person who was previously convicted of a felony and under sentence of imprisonment or placed on community control or on felony probation;
• The defendant was previously convicted of another felony involving the use or threat of violence, or of another capital felony;
• The defendant knowingly created a great risk of death for many people;
• The capital felony was especially heinous or cruel;
• The capital felony was committed during the commission or attempt to commit any: robbery, sexual battery, aggravated child abuse, abuse of an elderly or disabled person resulting in great bodily harm, arson, burglary, kidnapping, aircraft privacy, or the unlawful placing, throwing, or discharging of a bomb;
• The capital felony was committed to avoid or prevent a lawful arrest or in the escape from custody;
• The capital felony was committed for pecuniary gain—meaning to gain monetary value;
• The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or enforcement of laws;
• The capital felony was considered, cold, calculated, and premeditated manner without any pretense or moral or legal justification;
• The victim of the capital offense was either a law enforcement officer, was under the age of 12, an elected or appointed official, or was considered especially vulnerable due to age or disability; and/or
• The capital felony was committed by someone in a criminal gang, or someone considered a sexual predator.

Florida has a complex history with the death penalty. There has been a lot of back and forth between the Florida Supreme Court and the United State Supreme Court on the constitutionality of Florida’s capital punishment process. Prior to 2016’s Hurst v Florida, Florida was one of only three states which allowed judges to impose the death penalty even with a non-unanimous vote by the jury. The majority vote only required a 7-5 in favor of capital punishment by the jury. In addition, the judge only needed to consider the recommendation of the jury. The judge could weigh the possible aggravating circumstances and mitigating factors before giving their sentence.

The judge did not have to follow the recommendation of the jury. If the jury recommended life, the judge could still impose the death penalty by finding aggravating circumstances in the case. This law was held to be unconstitutional by the United States Supreme Court in Hurst v. Florida. The Court in Hurst held that the judge-sentencing requirement violated the Sixth Amendment, which guarantees the right to trial by jury. Specially the Court held: “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.”

In March 2016, the death penalty statute was amended to require that the jurors unanimously find any aggravating circumstances. These aggravating circumstances make the defendant eligible for the death penalty. Under the 2016 amended law, at least 10 jurors need to recommend the death.

Later in 2016, the Florida Supreme Court heard Hurst v. State again and struck down the death penalty amendment, because the statute did not require a unanimous jury recommendation of death before the trial judge could consider imposing a death sentence.

The law was amended again in 2017, changing the jury vote requirement to a unanimous vote by the jury. The jury currently has to unanimously vote to find aggravating circumstances in the case, and the just must unanimously vote for the  death penalty to be imposed. A judge can decide to not impose the death penalty, but a judge cannot impose the death penalty when the jury does not unanimously recommend the death penalty.  

Three years later in 2020, the Florida Supreme Court revoked the decision to require a unanimous verdict from the jury in favor of the death penalty, State v. Poole. The Florida Supreme Court in Poole ruled that their decision in Hurst was flawed. The Court explained that there was a difference between eligibility for the death penalty (the finding of aggravating factors) and the selection decision (the recommendation of the death penalty). The Florida Supreme court held that the Sixth Amendment only requires that the eligibility requirement be made by a unanimous vote. The selection decision does not have to be a unanimous jury vote.  

During the Parkland trial which took place in 2022, DeSantis addressed his disbelief that Nikolas Cruz, the confessed mass shooter from Marjory Stonewall Douglas, was not granted capital punishment. Instead, the jury’s vote was 9-3 in favor of the death penalty. Due to Florida’s requirement for a unanimous vote, even just one juror voting against capital punishment can prevent the death penalty from being imposed.

“I don’t think justice was served in that case,” DeSantis said on Thursday. “If you’re going to have capital [punishment], you have to administer it to the worst of the worst crimes.”

Now DeSantis is looking to constitute a “supermajority” which is sufficient grounds for capital punishment. The Florida Governor claimed the justice system has been delayed by the “slow wheels of justice.” He argued that one person’s ability to holdout  during jury delibration goes against the consensus.

“If you will never administer the punishment, you just can’t be on the jury,” DeSantis argued. “Our law authorizes it. But you’re in a situation where you have 12 jurors, and just one juror vetoes it, then you end up not getting the sentence.”

With DeSantis’ urging, Republicans are trying to introduce legislation that would require only eight out of the 12 jurors in favor of the death penalty to sentence capital punishment. Florida is currently one of three out of the 27 states which require unanimity for capital punishment.

You can read more about non-unanimous death penalty sentences here.

Responses

When Nikolas Cruz was not given the death penalty sentence during his sentencing trial, the families and friends of the victims were shocked. Tony Montalto, father of Gina Montalto who was killed in the 2018 massacre, stated that changing the sentencing to an 8-4 majority vote would prevent “an activist juror from denying the victims’ families justice.”

“The people subject to the death penalty are already convicted murderers, they are not people picked off the street,” Montalto said.

Kathleen Passidomo, the Republican State Senate President, claimed that she is open to reconsidering the unanimous requirement Florida implements for capital punishment.

“The looks on the faces of the victims’ families were heartbreaking,” Passidomo said in a statement. “In my view, the case raises a number of issues related to Florida’s laws regarding sentencing in capital felonies, and I understand that many Floridians feel that justice was denied.”

The support for capital punishment in the U.S. has fallen over the last few decades. According to the Death Penalty Information Center, the database indicated that 1,558 people have been executed since the 1970s, when the death penalty was first reinstated. Out of those people, 99 of them were in Florida. However, recent polls indicate that the national support for capital punishment is only around 50-60%.

On the other hand, President Biden had campaigned on the pledge to abolish capital punishment. However, there has not been any major action toward ending the practice. In federal cases, the death penalty can be a resulting sentence in more severe cases, but there is a moratorium in place, which makes federal executions unlikely.

The executive director of the Death Penalty Information Center, Richard Dieter, stated his understanding of people being upset with the Cruz sentencing. Despite this, Dieter says he took an issue with the possible upending of the unanimous voting standard based on the Cruz case.

“It’s a big deal sort of going back on something so fundamental as our jury system in the country. It’s not just changing from 9-3 to 10-2,” Dieter said. “That might not be a big deal, but doing away with unanimity, I think a lot of caution should be practiced in that change. And in the sense that this is happening in response to one case is a concern.”

Finding a Defense Attorney in Tallahassee, Florida

While none of the Governor’s plans have been put into action just yet, this can have an impact on those accused of criminal offenses in Florida. More severe penalties for drug possession and trafficking, along with the possibility of changing the capital punishment sentencing requirements means it is especially important for any person accused of a crime to seek out legal assistance.

If you or someone you know has been accused of a crime in Florida, your first step should be contacting an criminal defense attorney near you. A skilled defense attorney will work tirelessly on your case while ensuring all of your rights are protected. Don Pumphrey and his team will help build a strong defense for your case. Contact Pumphrey Law Firm today and receive a free consultation regarding your case. Call us at (850) 681-7777 or leave an online message on our website.

Written by Karissa Key

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