By Gray Rohrer
Orlando Sentinel
TALLAHASSEE, Fla. — With the lowest threshold in the nation for death sentences, Florida juries are sentencing prisoners to death faster than Gov. Rick Scott can sign their death warrants. But a pending U.S. Supreme Court case and a proposal before the Legislature could change that.
The latest was Bessman Okafor after an Orange County jury voted 11-1 in September to sentence him to death for the 2012 murder of Alex Zaldivar. A judge accepted the recommendation last month.
If Okafor had been convicted in nearly any other state in the country, he wouldn’t be facing a death sentence.
Florida is the only state that requires a simple majority recommendation from a jury to sentence a prisoner to death. A judge makes the final determination of the sentence, but judges follow jury recommendations a majority of the time.
Most of the other 31 states that have the death penalty require a unanimous jury vote. Alabama requires at least a 10-2 vote, and Delaware requires jurors to find an aggravating circumstance.
But a ruling by the U.S. Supreme Court on whether the state’s majority vote is constitutional could go against Florida, and some state lawmakers are pushing bills to require a unanimous jury vote for the death penalty.
“I think it just makes sense,” said Sen. Thad Altman, R-Viera, who is sponsoring SB 330, which would mandate a unanimous jury vote. “If it requires a unanimous jury to convict in a capital death case, we should require the same for the sentencing phase.”
But Altman has filed similar bills in recent years that haven’t gained much traction. Prosecutors, including Attorney General Pam Bondi, have argued against changing the jury threshold in the past. They say some of Florida’s most notorious murderers who committed heinous crimes, including serial killer Ted Bundy, would have been spared the death penalty if the threshold were increased.
What could change things this year is the U.S. Supreme Court case and the timing of its ruling.
The court in October heard oral arguments in Timothy Lee Hurst v. State of Florida. Hurst was convicted of stabbing his fast-food restaurant manager to death in 1998. His jury voted 7-5 for the death penalty.
If the court overturns Florida’s death penalty threshold and issues a ruling before the legislative session ends in March, it gives lawmakers a chance to pass a bill requiring the unanimous jury. But if that decision isn’t rendered until after the session ends, lawmakers couldn’t do anything about it until 2017, unless they called a special session to deal with the matter.
That could create a “moment of chaos in the criminal justice system,” said Rep. Jose Javier Rodriguez, D-Miami, the sponsor of the House version of the bill.
“If we sit on our hands there’s a possibility we could have an unenforceable death penalty for up to a year,” Rodriguez said.
Rodriguez also said there will likely be a parade of appeals if the court rules against Florida. Any death row inmate who got a less than unanimous jury vote would have a brand new argument in court.
“That decision is out of our hands at this point,” Rodriguez said. “Whether we like it or not, we’re subject to the U.S. Supreme Court and its interpretation of the Constitution.”
The current threshold has helped add to the death row roster. According to a legislative analysis, from 2000-2012, only 60 out of 296 jury recommendations on death sentences — about 20 percent — were unanimous.
And although Scott has overseen 22 executions during his term and 63 prisoners have been sentenced to death, the death row roster has dropped by just four to 393 prisoners during that time, likely because of inmate deaths, a Department of Corrections spokeswoman said.
Last Tuesday, Scott signed the death warrant of Michael Ray Lambrix, who was convicted of killing two people in southwest Florida in 1983. A jury voted 10-2 to recommend the death penalty for one of the murders, and 8-4 for the other. He is scheduled to die by lethal injection Feb. 11.
When asked whether Scott takes jury votes into account when signing death warrants, his office didn’t answer the question.
“Signing death warrants is one of the governor’s most solemn duties,’’ Scott spokeswoman Jeri Bustamante stated in an email. “His foremost concerns are the families of the victims and the finality of judgments.”
Copyright 2015 The Orlando Sentinel