Under proposed legislation to recraft the state’s capital punishment system, Florida could soon become the only state where a judge will possess the power to override a jury’s recommendation for a life sentence and give the death penalty instead. Gov. Ron DeSantis along with Florida lawmakers’ proposed legislation that would facilitate sending convicts to death row by eliminating a unanimous jury requirement.  

The language of the bill and identical bills filed by Republicans, Rep. Barny Jacques and Sen. Blaise Ingoglia, states that “notwithstanding the recommendation of the jury,” the court can “enter a sentence of life imprisonment or death.” Similar terms were used in Florida’s previous statute, permitting judicial override until 2016 when the legislature rewrote the statute following the United States Supreme Court ruling that stated judges had too much power when it came to the death penalty. 

Not only does the bill open the door for a supreme judicial override, but it also proposes doing away with requiring a unanimous jury verdict for a death penalty sentence — lowering the threshold to an 8-4 majority. 

The proposal formed after a divided 9-3 jury spared Marjory Stoneman Douglas High School shooter Nikolas Cruz in Nov. 2022 from capital punishment after killing 17 people at the school in 2018. The Parkland school shooter alternatively received a life sentence. The Cruz decision outraged many and served as a catalyst for Florida’s effort to drop its unanimity requirement for capital punishment.

Republican legislators introduced legislation to allow the jury to choose the death penalty with only eight of the 12 jurors in favor, which would make Florida the first and sole state to employ that standard.

Only three states out of the 27 that impose the death penalty do not require unanimity. Alabama allows a 10-2 decision and Missouri and Indiana permit a judge to decide in the case of a divided jury. Alabama, the only state that currently has a nonunanimous jury sentencing requirement, abolished its judicial override provision in 2017.

Since 1972, Florida has witnessed 166 cases where a judge sentenced someone to death following a jury recommendation of life in prison. The last time a Florida judge overruled a jury’s suggestion for a life sentence instead of death was in 1999. 

A database on the website of the anti-execution Death Penalty Information Center shows 1,558 people have been executed since the death penalty’s reinstatement in the mid-1970s, including 99 in Florida. National support for capital punishment declined in recent decades, with most polls finding between 50% and 60% of people now back the death penalty.

President Joe Biden campaigned on a pledge to work toward abolishing the death penalty but has not taken major action to end the practice. The U.S. Justice Department still presses for the death penalty in certain cases but has a moratorium in place, making federal executions unlikely.

Issuing a death sentence is a two-step process in the state where the prosecution must first prove beyond a reasonable doubt through a ​​unanimous vote of at least one of 16 offensive factors under Florida law; the murder of a law enforcement officer or government official, heinous, atrocious or cruel homicides, the killing of a child under 12 years old and murders that are calculated and premeditated, or committed during an act that created a great risk of death to many people.

The new proposition would alter the second step where under the current law, jurors also must unanimously agree the aggravating factors “outweigh” any pacifying circumstances the defense might offer, such as the killer’s mental health, intellect or upbringing. The proposals would change that standard to eight out of 12 jurors.