By Christopher Zoukis

The U.S. Supreme Court’s 8-1 mid-January decision in Hurst v. Florida overturned the way Florida decides on imposing the death penalty, saying it was unconstitutional because juries weren’t allowed to make the ultimate decision. Now, the high court has recently told Alabama’s Court of Criminal Appeals to review whether that Florida case means Alabama must also revise its death-sentencing law.

Before the Hurst decision, after a felony conviction for which the death penalty might be imposed, Florida had required a separate hearing to consider if the death sentence was appropriate. In that proceeding, overseen by the sentencing judge, the jury gave a non-binding “advisory sentence,” but left it to the judge to decide if the death sentence was warranted.

In Hurst, the majority opinion from Justice Sonia Sotomayor (Justice Samuel Alito was the only dissenter) declared the Sixth Amendment’s guarantee of due process “requires a jury, not a judge” to determine every fact required for imposing a death sentence. Allowing the jury to make a recommendation, but not the ultimate decision, was insufficient, she wrote.

To address Hurst, Florida suspended executions, and its legislature handily passed, and the governor signed, a bill revising death-penalty sentencing. A major question not addressed by the new law, however, is whether the decision will be read to require new trials or a change of sentence to life imprisonment for nearly 400 prisoners in Florida earlier sentenced to death under the law rejected by the Supreme Court.

Only a day before issuing the Hurst decision, the Supreme Court dismissed a death penalty appeal from Bart Johnson, an Alabama convict on death row for fatally shooting a policeman during a traffic stop in 2009. But after Hurst, Johnson’s lawyers refiled their appeal, claiming Alabama’s death penalty law has the same flaw as the Florida law.

Like Florida, Alabama only called for a recommendation, not a decision, from jurors on the death penalty; judges could ignore a jury’s recommendation for life without parole, and instead hand down a death sentence. The high court’s May 2 order in Johnson v. Alabama directs the state to determine what effect the Florida case has on the Alabama’s law, and potentially sets the path for a further high court review.

Alabama, with almost 200 prisoners sentenced to death, has not suspended executions; as reported in our recent blog, days after its Hurst decision, the high court refused to stop the execution of an Alabama prisoner. In that case, however, three Justices said they saw Hurst as invalidating Alabama’s capital-sentencing law. And defense lawyers in Alabama capital cases are asking judges to rule the death penalty cannot be imposed under the current state law (only one state judge has accepted that argument, and the state is appealing her ruling).

Meanwhile, the same day it sent its order to Alabama, the Supreme Court decided against hearing a challenge to the death penalty in California; that case (Boyer v. Davis) argued decades- long delays in carrying out execution made death sentence unconstitutional. Justice Stephen Breyer filed a brief but sharp dissent to the dismissal, arguing the death penalty had become so unreliable, arbitrary and delayed that it likely violated the Eighth Amendment’s ban on cruel and unusual punishment.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, https://www.prisonerresource.com and https://www.prisonerresource.com 

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).