Florida Supreme Court Limits Retroactive Scope of Its Ruling Permitting Death Sentences After Non-Unanimous Jury Votes

In two long-awaited decisions that will alter the landscape of Florida’s death row, the Florida Supreme Court has limited the reach of a landmark ruling that overturned the state’s constitutional prohibition against death sentences imposed after a non-unanimous jury vote for death. The court’s January 2020 decision in State v. Poole had raised the specter that the court might rescind orders that had overturned the death sentences of more than 100 Florida death-row prisoners and granted them new sentencing trials.

However, on November 25, the court decided the cases of two defendants sentenced to death by non-unanimous juries who had been awaiting resentencing under the court’s 2016 decision, Hurst v. State. In those cases, the court unanimously rebuffed state prosecutors’ efforts to reinstate the death sentences of Bessman Okafor and Michael James Jackson without affording them the capital resentencing hearings previously ordered by the court.

In January 2020, after state trial and appellate courts had overturned the death sentences of numerous death-row prisoners, the Florida Supreme Court receded from its decision in Hurst and reinstated Mark Anthony Poole’s non-unanimous death sentence. The court subsequently applied that change in the law to other cases in which prosecutors had appealed lower court decisions that had relied on Hurst in granting death-row prisoners new sentencing trials. Prosecutors across the state then attempted to cancel the penalty-phase trials and reinstate the death sentences of prisoners who had been granted relief under Hurst but had not yet completed the resentencing process.

Rejecting the prosecutors’ position, the court stated that once an order vacating a death sentence has become final, “neither we nor the trial court can lawfully reinstate that sentence.”

Department of Justice Issues Lame-Duck Regulations to Broaden the Range of Available Federal Execution Methods

The range of methods available to the federal government to carry out executions could be expanded under a new Department of Justice regulation published on November 27, 2020.

The regulation, one of numerous last-minute changes in federal practices adopted in the lame-duck period of the Trump Administration, permits the federal government to perform executions using any form of lethal injection “or by any other manner prescribed by the law of the state in which the sentence was imposed or which has been designated by a court” in accordance with federal death penalty statutes. The three-dozen new federal regulations encumber the incoming Biden administrations with policy changes affecting such areas as nuclear proliferation, international trade, immigration, worker safety, pollution, and oil drilling in the Arctic.

The new rule provides the Federal Bureau of Prisons with flexibility in carrying out executions by lethal injection by broadening the set of available lethal-injection protocols. In theory, it could allow the federal government to conduct executions by electrocution, lethal gas, or firing squad, though the use of any of those methods without the consent of the death-row prisoner would be highly unlikely as a practical matter. The rule does not expand federal power regarding methods of execution, but formalizes through regulation the holding of an April 2020 federal appeals court decision requiring the federal government to follow "those execution procedures enacted or promulgated by states as part of their binding law."

The rule goes into effect 30 days after publication, rather than the customary 60 days, meaning it could apply to the three federal executions currently scheduled for January 2021, but not to the two scheduled for December 10 and 11, 2020. Announcements for the five pending federal executions specified lethal injection as the method of execution for four of the prisoners but did not specify the intended method for the scheduled January 15, 2021 execution of Dustin Higgs. Higgs was sentenced to death for an offense committed in Maryland, which does not have the death penalty.

The new execution procedures will likely be rendered moot under the administration of President-elect Joe Biden, who said during the campaign that he opposes capital punishment and will work to end the federal death penalty. A transition team spokesperson reiterated the President-elect’s opposition to the death penalty.

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