Florida Supreme Court Gives Itself the Power to Shred Liberal Precedent, Starting With Death Penalty Limits

Everything is up for grabs.

A white hearse drives by a sign for the Florida Department of Corrections
A hearse leaves a Florida state prison following an execution. Chris Livingston/Getty Images

The Florida Supreme Court has become a laboratory of judicial conservativism since 2019, and now the justices have given themselves a new tool to clear away remaining obstacles. On Thursday, they issued a decision of extraordinary breadth, overturning a landmark precedent and letting judges once again impose the death penalty without the unanimous recommendation of a jury. Their decision authorizes the legislature to revive a scheme that empowers judges to issue a death sentence when the jury does not recommend it.

At the same time, the court effectively overruled precedents that limited its ability to reverse past decisions. In all, the decision announces an aggressive new campaign to toss out liberal precedents and move the court far rightward.

Thursday’s decision in State v. Poole overturns a momentous ruling, State v. Hurst, handed down in October 2016. Hurst dealt with Florida’s capital sentencing scheme, a notorious outlier even among states that retained the death penalty. Like these other states, Florida required a jury to determine whether “aggravating circumstances” exist that justify a sentence of death.

Unlike almost every other state, however, the jury’s determination was not binding. Instead, jurors issued an “advisory verdict”—approved by a bare majority—for the judge to consider. But the judge could then hold a separate hearing, analyze the facts independently, and issue a sentence regardless of the jury’s advice.

The U.S. Supreme Court invalidated this system in January 2016. It reiterated that the Sixth Amendment requires a jury, not a judge, to find all facts that increase the maximum punishment. Since Florida allowed a judge to find “aggravating circumstances” that justified a capital sentence, it ran afoul of this rule. The justices returned the case to the Florida Supreme Court to implement their decision, which, at that point, had a 5–2 liberal majority.

But the Florida Supreme Court did more than apply Hurst. The court also considered its state constitution, which declares that the “right of trial by jury shall be secure to all and remain inviolate.” Interpreting this guarantee, the majority expanded the role of the jury in capital trials beyond the federal minimum. It declared that a judge may not impose death unless the jury unanimously found all aggravating factors to be proven beyond a reasonable doubt, “sufficient to impose death,” and not outweighed by any “mitigating factors.” Moreover, the majority held that a jury must “unanimously recommend a sentence of death” before a judge “may consider imposing” it.

The Florida legislature begrudgingly updated state law to reflect these new rules and bring Florida in line with other death penalty states, which placed these decisions in the hands of the jury long ago. Their revisions left just one state, Alabama, that allowed a non-unanimous jury to impose capital punishment.

On Thursday, though, a reconstituted court gave the legislature the greenlight to repeal these reforms and expand judges’ control over death sentences. In a caustic opinion, the majority blithely threw Hurst—a 5–2 decision—out the window.

A lot has changed since October 2016: Four justices in the Hurst majority were forced to step down under Florida’s mandatory retirement law. Former Republican Gov. Rick Scott replaced one with the ultra-conservative C. Alan Lawson, who previously served as a lower court judge. Current Republican Gov. Ron DeSantis replaced the other three with conservatives selected by Leonard Leo, head of the Federalist Society, a partisan organization that elevates Republicans to the judiciary. Donald Trump has already placed two of  DeSantis’ three justices on the 11th U.S. Circuit Court of Appeals. So Thursday’s decision in Poole was decided by a five-member court that split 4–1. The one remaining liberal was the lone dissenter.

Why did the Florida Supreme Court overturn its prior decision in Hurst? Because the new conservative majority didn’t like it. Drawing a distinction between “facts” and “sentencing recommendations,” the court held that juries need only find one “aggravating circumstance” to render a defendant eligible for death. It must do so unanimously. But a jury need not decide this factor is “sufficient to impose death,” and whether it is outweighed by “mitigating factors.” And it need not recommend a death sentence, unanimously or otherwise, for a judge to impose one. In short, the court rejected Hurst’s holding that a jury must decide “all the findings necessary for imposition of a death sentence.”

The Florida Supreme Court has, in the past, declined to overrule past decisions without some special justification. It asked if a precedent was “unworkable,” if many people had come to rely on it, and if the “factual premises” had “changed so drastically as to leave the decision’s central holding utterly without legal justification.” On Thursday, the court threw out those rules, as well. From now on, the majority declared, “when we are convinced that a precedent clearly conflicts with the law we are sworn to uphold,” it will overturn that precedent. The majority favorably cited a concurrence by Justice Clarence Thomas scorning faithful adherence to precedent.

This portion of Poole may be just as consequential as its central holding. The new majority has already been casually scrapping minor precedents it disliked. Now it has given itself permission to go after bigger targets. Most notably, the court’s former liberal majority had protected abortion rights—by, for instance, forbidding the state from forcing minors to get permission from their parents before terminating a pregnancy. Republican lawmakers are already preparing to reinstate that requirement, hoping the court will uphold it this time around. The former court also upheld the state’s gun control laws, including a ban on open carry, over the conservatives’ dissent; that decision now appears ripe for reversal. While the court previously enforced a state constitutional amendment barring partisan gerrymandering, GOP legislators now assume that the reconstituted court will abandon this duty.

In other words, the Florida Supreme Court is coming to look like SCOTUS in miniature: Personnel changes are leading to a legal avalanche that will smother progressive precedent. Capital defendants may be the first to feel the effects. But the court’s conservatives—emboldened by their new “strike it if we dislike it” doctrine—appears ready to go after any weighty and controversial decision they detest. Everything is up for grabs.