[*] An editorialist recently posed the question, "Who, if anyone, should be trusted to take a human life? One judge, or a jury of 12 citizens?" Eroding the Role of Juries, ST. PETE. TIMES, Apr. 22, 1995, at A16. Return to text.

[**] Assistant United States Attorney for the Middle District of Florida. B.A., 1989, University of Florida; J.D., 1992, Stetson University. Former law clerk to the Honorable John H. Moore II, Chief Judge of the United States District Court for the Middle District of Florida. Return to text.

[1] See FLA. STAT. § 921.141(3) (1995) ("Notwithstanding the recommendation of a majority of the jury, the court, after weighing the aggravating and mitigating circumstances, shall enter a sentence of life imprisonment or death . . . ."). Although this provision authorizes, and was originally intended to permit, the judge to override a jury's recommendation of death and impose a life sentence, the controversy surrounding the statute centers on the overwhelming number of cases in which the judge has overriden a recommendation of life imprisonment and imposed a sentence of death. Return to text.

[2] These states are Alabama, Delaware, and Indiana. See ALA. CODE § 13A-5-47(e) (1994); DEL. CODE ANN. tit. 11, § 4209(d) (1994); IND. CODE § 35-50-2-9(e) (West 1995). Return to text.

[3] United States Supreme Court Justice John Paul Stevens has said: "Florida has adopted an unusual 'trifurcated' procedure for identifying the persons convicted of a capital felony who shall be sentenced to death. It consists of a determination of guilt or innocence by the jury, an advisory sentence by the jury, and an actual sentence by the trial judge." Spaziano v. Florida, 468 U.S. 447, 470 (1984) (Stevens, J., concurring in part and dissenting in part). Return to text.

[4] See, e.g., Michael A. Mello, The Jurisdiction To Do Justice: Florida's Jury Override and the State Constitution, 18 FLA. ST. U. L. REV. 923, 927-38 (1991) [hereinafter Mello, Jurisdiction To Do Justice]; Michael A. Mello, Taking Caldwell v. Mississippi Seriously: The Unconstitutionality of Capital Statutes That Divide Sentencing Responsibility Between Judge and Jury, 30 B.C. L.REV. 283, 286-90 (1989) [hereinafter Mello, Taking Caldwell Seriously]; Michael Mello & Ruthann Robson, Judge Over Jury: Florida's Practice of Imposing Death Over Life In Capital Cases, 13 FLA. ST. U. L. REV. 31, 35-40 (1985) [hereinafter Mello & Robson, Judge Over Jury]. Return to text.

[5] See, e.g., Harris v. Alabama, 115 S. Ct. 1031 (1995) (upholding the constitutionality of Alabama's capital sentencing scheme). Return to text.

[6] See Porter v. Singletary, 14 F.3d 554, 555 (11th Cir.), cert. denied, 115 S. Ct. 532 (1994); Porter v. State, 400 So. 2d 5, 6 (Fla. 1981). Return to text.

[7] Porter, 14 F.3d at 555-56; Florida Inmate to Die March 29, 1995; Jury Unanimously Says Life; Judge and Governor Say Death, BUS. WIRE, Mar. 9, 1995, available in LEXIS, News Library, WIRES file [hereinafter Florida Inmate to Die]. Return to text.

[8] See Porter v. Singletary, 49 F.3d 1483 (11th Cir. 1995); see also Florida Inmate To Die, supra note 7. Return to text.

[9] Porter, 49 F.3d at 1489. The trial judge allegedly made remarks to the clerk of court during trial, as well as more recent remarks to the media, suggesting that he was predisposed to sentence Porter to death before the penalty proceedings began:

The Clerk stated that either before or during Porter's trial, the judge presiding over the case, the Honorable Richard M. Stanley, stopped by the Clerk's Office early one morning, and the judge and the Clerk drank coffee together. The judge stated that he had changed the venue in the Porter trial from Charlotte County to Glades County because there had been a lot of publicity and Glades County "had good, fair minded people here who would listen and consider the evidence and then convict the son-of-a-bitch. Then, Judge Stanley said, he would send Porter to the chair."
Id. at 1487. Return to text.

[10] The history of the case involving Joseph "Crazy Joe" Spaziano is also instructive. See infra notes 53-63 and accompanying text. On June 15, 1995, Governor Chiles stayed the scheduled June 27 execution of Joseph "Crazy Joe" Spaziano for an "indefinite period of time." See Chiles Blocks Spaziano Execution, Pending Study, FLA. TIMES-UNION, June 16, 1995, at B1. Governor Chiles entered the stay to allow an investigation into the reliability of testimony given against Spaziano by a key prosecution witness under hypnosis. Id. Although Governor Chiles subsequently signed Spaziano's death warrant, the Florida Supreme Court granted Spaziano an indefinite stay of execution on September 12, 1995, and remanded the case to the trial court for an evidentiary hearing. See Spaziano v. State, 660 So. 2d 1363, 1365-66 (Fla. 1995). Spaziano was convicted of first degree murder in 1976 for the 1973 killing of Orlando nurse Laura Harberts. See Spaziano v. State, 433 So. 2d 508, 510 (Fla. 1983), aff'd, 468 U.S. 447 (1984); see also James Kilpatrick, Is Florida About to Execute an Innocent Man?, FLA. TIMES-UNION, June 8, 1995, at A17. Notwithstanding a jury recommendation of life imprisonment, the trial judge sentenced Spaziano to death. Spaziano, 433 So. 2d at 510. Return to text.

[11] Spaziano v. Florida, 468 U.S. 447, 481 (1984) (Stevens, J., dissenting in part and concurring in part) (citation omitted). Return to text.

[12] Furman v. Georgia, 408 U.S. 238, 290 (1972) (Brennan, J., concurring). Return to text.

[13] Id. (citation omitted). In contrast to a life sentence, where punishment is revocable, with a death sentence, the executed person loses the right to have rights and the finality of death precludes relief. Id. Return to text.

[14] See Harris v. Alabama, 115 S. Ct. 1031, 1039 (1995) (Stevens, J., concurring in part and dissenting in part) ("A jury verdict expresses a collective judgment that we may fairly presume to reflect the considered view of the community"); Spaziano, 468 U.S. at 461 (restating petitioner's argument that "[s]ince the jury serves as the voice of the community, the jury is in the best position to decide whether a particular crime is so heinous that the community's response must be death."). Return to text.

[15] See FLA. STAT. § 921.141 (1995). Return to text.

[16] State Ponders Changing Steps To Execution, MIAMI HERALD, Mar. 3, 1991, at 6B. See also This Death Penalty Bill Tramples On Morality, PALM BCH. POST, May 26, 1995, at 14A [hereinafter Bill Tramples On Morality]. Return to text.

[17] 408 U.S. 238 (1972) (per curiam) (holding that then-existing death penalty statutes constituted cruel and unusual punishment in violation of the Eighth Amendment). Return to text.

[18] See Fla. CS for HB 1319 (1995); Veto of Fla. HB 1319 (1995) (letter from Gov. Chiles to Sec'y of State Sandra B. Mortham, June 14, 1995) (on file with Sec'y of State, the Capitol, Tallahassee, Fla.) [hereinafter Governor's Veto]; see also Chiles Vetoes Jury Recommendation Bill, FLA. TIMES- UNION, June 15, 1995, at B5. Return to text.

[19] See 408 U.S. at 239-40. Return to text.

[20] Robert Weisberg originated the phrase "deregulating death." See Robert Weisberg, Deregulating Death, 1983 SUP. CT. REV. 305. Return to text.

[21] Mello, Jurisdiction To Do Justice, supra note 4, at 932 (citation omitted). Return to text.

[22] See Proffitt v. Florida, 428 U.S. 242, 259 (1976); Gregg v. Georgia, 428 U.S. 153, 206 (1976); Jurek v. Texas, 428 U.S. 262, 276 (1976). Return to text.

[23] Spaziano v. Florida, 468 U.S. 447, 464 (1984). Return to text.

[24] Harris v. Alabama, 115 S. Ct. 1031, 1035 (1995). Return to text.

[25] Furman v. Georgia, 408 U.S. 238, 239-40 (per curiam). The Eighth Amendment reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII.

The Florida Supreme Court said "[t]his is the only controlling law which Furman v. Georgia . . . provides, as no more specific statement of the law could garner a majority of the members of the high court." State v. Dixon, 283 So. 2d 1, 6 (Fla. 1973), cert. denied, 416 U.S. 943 (1974). Each of the five justices constituting the Furman majority wrote a separate opinion. See 408 U.S. at 238. Justice John Paul Stevens later reasoned that "[p]unishment may be 'cruel and unusual' because of its barbarity or because it is 'excessive' or 'disproportionate' to the offense." Spaziano, 468 U.S. at 477 (Stevens, J., concurring in part and dissenting in part). Return to text.

[26] See Gregg v. Georgia, 428 U.S. 153, 169 (1976). Return to text.

[27] See Raulerson v. State, 358 So. 2d 826, 829 (Fla.), cert. denied, 439 U.S. 959 (1978). Return to text.

[28] Dixon, 283 So. 2d at 7 ("[I]f the judicial discretion possible and neccessary under [the capitol sentencing scheme] can be shown to be reasonable adn controlled, rather than capricious and discriminatory, the test of Furman v. Georgia has been met."); see Gregg, 428 U.S. at 188 ("Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner."). Return to text.

[29] Furman, 408 U.S. at 313 (White, J., concurring). Return to text.

[30] Florida's pre-Furman capital sentencing scheme was codified at FLA. STAT. § 755.082(1) (1971). Return to text.

[31] See Dixon, 283 So. 2d at 12. If the jury recommended mercy, the defendant was sentenced to life imprisonment. Id. For a lengthy list of post- Furman per curiam opinions which invalidated unexecuted death sentences imposed under Florida's "mercy statute," see id. at 6n.2. Return to text.

[32] Id. at 13. Return to text.

[33] Id. Return to text.

[34] See 408 U.S. at 239-40 (per curiam). Return to text.

[35] See Dobbert v. Florida, 432 U.S. 282, 294-95 (1977); Proffitt, 428 U.S. 247; Dixon, 283 So. 2d at 13. The United States Supreme Court has described Florida's capital sentencing scheme as "patterned in large part on the Model Penal Code." Proffitt, 428 U.S. at 248. Return to text.

[36] Florida law presently provides for two capital offenses: first degree murder, and throwing or discharging any destructive device that results in the death of another person. FLA. STAT. §§ 782.04(1)(a), 790.161(4) (1995). Return to text.

[37] Id. § 921.141(1). If the capital defendant has waived jury trial, the trial court must impanel a jury for the sole purpose of providing an advisory sentence. Id. Return to text.

[38] Id. Return to text.

[39] Id. § 921.141(1)-(2). The advisory sentence should inform the trial judge of the jury's determination as to whether sufficient aggravating circumstances exist, whether sufficient mitigating circumstances exist which outweigh the aggravating circumstances found to exist, and whether, based upon these circumstances, the defendant should be sentenced to death or life imprisonment. Id. § 921.141(2). Return to text.

[40] Id. § 921.141(3). The Florida Supreme Court presumes that a sentence of death is appropriate when there is at least one aggravating circumstance, unless "overridden by one or more of the mitigating circumstances." State v. Dixon, 283 So. 2d 1, 9 (Fla. 1973), 416 U.S. 943 (1974). Return to text.

[41] 283 So. 2d 1 (1973), cert. denied, 416 U.S. 943 (1974). Return to text.

[42] Id. at 7-8. In addition, the defendant is permitted to present any relevant mitigating evidence at the separate sentencing hearing. See Dobbert v. Florida, 432 U.S. 282, 295 (1977). Although aggravating circumstances are limited to those specifically enumerated in the statute, the defendant may present both statutory and nonstatutory mitigating evidence. See Miller v. State, 373 So. 2d 882 (Fla. 1979). Return to text.

[43] Dixon, 283 So. 2d at 7. Return to text.

[44] Id. at 7. The Dixon court, interpreting Furman, rejected the argument that mere presence of discretion in the sentencing procedure rendered it unconstitutional. Id. at 6. The court noted that it is "the quality of discretion and the manner in which it was applied that dictated the rule of law which constitutes Furman v. Georgia." Id. Return to text.

[45] 428 U.S. 242 (1976). Return to text.

[46] Id. at 253-59. Return to text.

[47] Id. at 251. Return to text.

[48] Id. at 252. Return to text.

[49] In fact, the Court went on to state:

[I]t would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those imposed in analogous cases.
Id. Return to text.

[50] 322 So. 2d 908 (Fla. 1975). Return to text.

[51] Id. at 909. Return to text.

[52] Id. at 910.

The three aggravating circumstances identified by the trial judge were (1) that the defendant knowingly created a great risk of death to many persons, (2) that the crime was committed while the defendant was engaged in the commission of kidnapping, and (3) that the crime was especially heinous, atrocious, and cruel.
Id. Return to text.

[53] Id. Return to text.

[54] 468 U.S. 447 (1984). Return to text.

[55] Id. at 451. Return to text.

[56] Id. at 452. The trial judge found two aggravating circumstances and no mitigating circumstances " 'except, perhaps, the age [28] of the defendant.' " Id. The aggravating circumstances were that the homicide was especially heinous and atrocious, and that the defendant had prior felony convictions involving the use or threat of violence to the person. Id. Return to text.

[57] Spaziano v. State, 393 So. 2d 1119 (1981). The Florida Supreme Court found that the trial judge had erred by relying on confidential information in a presentence investigation report without giving prior notice to the defendant and an opportunity to respond. Id. at Return to text.

[58] Spaziano, 468 U.S. at 453. Based upon a new presentence investigation report and hearing at which the defendant presented no evidence, the trial judge reaffirmed his previous findings as to the aggravating circumstances. Id. Return to text.

[59] Spaziano v. Florida, 433 So. 2d 508, 511-12 (Fla. 1983), aff'd, 468 U.S. 447 (1984). In addition, the Florida Supreme Court found that "allowing the jury recommendation to be binding would violate Furman v. Georgia." Id. at 512. Return to text.

[60] Spaziano, 433 So. 2d at 511 (citing Tedder v. State, 322 So. 2d 908 (1975)). One justice dissented, finding "no compelling reason to override [the jury's] recommendation." Id. at 512 (McDonald, J., dissenting). Return to text.

[61] Spaziano, 468 U.S. at 457-67. The defendant argued that the jury override provision constituted cruel and unusual punishment in violation of the Eighth Amendment, and violated the Fifth Amendment's Double Jeopardy Clause, the Sixth Amendment right to trial by jury, and the Due Process Clause of the Fourteenth Amendment. Id. at 457-58. Return to text.

[62] Id. at 458-64. Return to text.

[63] Id. at 462-63. The Court reasoned that simply because a jury may sentence does not mean that they constitutionally must do so. Id. at 463 n.8. The Court also found unpersuasive the fact that thirty out of thirty-seven jurisdictions with a capital sentencing scheme vested capital sentencing power in the jury, while only three of the remaining seven permitted a judge to override a jury's recommendation of life. Id. at 463. Return to text.

[64] Id. at 465. Return to text.

[65] See DEL. CODE ANN. tit. 11, § 4209(d) (1994). The Delaware Supreme Court held that under Delaware's sentencing scheme the trial judge "bears the ultimate responsibility for imposition of the death sentence while the jury acts in an advisory capacity as the conscience of the community." Wright v. State, 633 A.2d 329, 335 (Del. 1993) (citation omitted). Return to text.

[66] 115 S. Ct. 1031 (1995). "Alabama's capital sentencing scheme is unique. In Alabama, unlike any other State in the Union, the trial judge has unbridled discretion to sentence the defendant to death . . . ." Id. at 1037 (Stevens, J., concurring in part and dissenting in part). Return to text.

[67] Id. at 1033. Return to text.

[68] Id. Return to text.

[69] Id. The trial judge found that the single aggravating circumstance of murder committed for pecuniary gain outweighed the statutory mitigating factor of no prior criminal record and the nonstatutory mitigating factor of being a hardworking, respected member of the church and community. Id. Return to text.

[70] Id. Return to text.

[71] Id.; see also Ex parte Jones, 456 So. 2d 380, 382 (Ala. 1984), cert. denied, 470 U.S. 1062 (1985) (holding that Alabama is not constitutionally required to adopt the Tedder standard); Harris v. Alabama, 632 So. 2d 503, 538 (Ala. Crim. App. 1992), aff'd, 632 So. 2d 543 (Ala. 1993), aff'd, 115 S. Ct. 1031 (1995). Return to text.

[72] Harris, 115 S. Ct. at 1037. Return to text.

[73] Id. at 1035. Return to text.

[74] Id. at 1037. Return to text.

[75] 472 U.S. 320 (1985). Return to text.

[76] Id. at 323-24. Return to text.

[77] Id. Return to text.

[78] Id. at 325. Return to text.

[79] Caldwell v. State, 443 So. 2d 806, 812 (Miss. 1983), rev'd, 472 U.S. 320 (1985). Although the Mississippi Supreme Court unanimously affirmed the conviction, it upheld the validity of the sentence by a divided vote of four to four. Id. at 808. Return to text.

[80] Id. at 328-29. Return to text.

[81] See id. Return to text.

[82] Combs v. State, 525 So. 2d 853, 856 (Fla. 1988). Return to text.

[83] Id. Return to text.

[84] Id. Return to text.

[85] 844 F.2d 1446 (11th Cir. 1988) (en banc), cert. denied, 489 U.S. 1071 (1989). Return to text.

[86] Id. at 1454. Return to text.

[87] Id. at 1453-54. Return to text.

[88] Id. at 1455. Return to text.

[89] Id. Return to text.

[90] Id. at 1454 n.10. Return to text.

[91] Id. Return to text.

[92] See Garcia v. State, 492 So. 2d 360, 367 (Fla.), cert. denied, 479 U.S. 1022 (1986) ("It is appropriate to stress to the jury the seriousness which it should attach to its recommendation and, when the recommendation is received, to give it weight. To do otherwise would be contrary to Caldwell v. Mississippi."). Return to text.

[93] See Mann, 844 F.2d at 1456; Davis v. Singletary, 853 F. Supp. 1492, 1556 (M.D. Fla. 1994). Return to text.

[94] Mann, 844 F.2d at 1456. Return to text.

[95] See Dugger v. Adams, 489 U.S. 401, 407 (1989) ("To establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law."). Return to text.

[96] Mann, 844 F.2d at 1456. Return to text.

[97] Id. Return to text.

[98] Harich v. Dugger, 844 F.2d 1464, 1475 (11th Cir. 1988) (en banc), cert. denied, 489 U.S. 1071 (1989). See also Stewart v. Dugger, 877 F.2d 851 (11th Cir. 1989), cert. denied, 495 U.S. 962 (1990) (finding no Caldwell violation where the defendant alleged the trial judge had instructed the jury "that the appropriateness of his execution had already been decided by the state legislature"). Return to text.

[99] See Sue Carlton, Juries Could Lose Court Clout, ST. PETERSBURG TIMES, May 22, 1995, at B9. Return to text.

[100] See Gerald B. Cope, Jr., Discretionary Review of the Decisions of Intermediate Appellate Courts: A Comparison of Florida's System With Those of the Other States and the Federal System, 45 FLA. L. REV. 21, 99 (1993). Return to text.

[101] Mello, Jurisdiction To Do Justice, supra note 4, at 926. During this period, 113 of 526 death sentences were overrides of life recommendations. Id. However, in 1994, only 4 of the 47 death sentences were overrides of life recommendations. See Bill Tramples On Morality, supra note 16, at A14. Return to text.

[102] See Mello, Jurisdiction To Do Justice, supra note 4, at 925-26. For example, a sentence of death in Florida only requires a majority vote of the jury. FLA. STAT. § 921.141(3) (1995). An evenly divided jury vote is considered to be a recommendation of life imprisonment. See Patten v. State, 467 So. 2d 975, 980 (Fla. 1985). Return to text.

[103] Study Finds Jurors Confused In Capital Trials, ST. LOUIS POST-DISPATCH, Mar. 26, 1995, at D11. Return to text.

[104] William J. Bowers, The Capital Jury Project: Rationale, Design, and Preview of Early Findings, 70 IND. L.J. 1043, 1043 (1995). Return to text.

[105] Id. Return to text.

[106] Id. at 1044. Return to text.

[107] Id. at 1094. The study concluded that eight out of ten jurors placed the most responsibility on the defendant or the law itself. Id. Return to text.

[108] Id. at 1095 n.233. Most capital jurors in jury override states viewed the judge as more responsible than the jury for the defendant's sentence, but still less responsible than the defendant and the law. Id. In contrast, virtually none of the capital jurors in the non-jury override states viewed the judge as the most responsible for the defendant's sentence. Id. Return to text.

[109] Cope, supra note 100, at 100. From 1986 through 1992, the Florida Supreme Court upheld only seven override sentences. See Gary Caldwell, Capital Crime Decisions: 1992 Survey of Florida Law, 17 NOVA L. REV. 31, 64 n.261 (1992). Return to text.

[110] Cope, supra note 100, at 100. Return to text.

[111] Id. at 101. Return to text.

[112] Id. at 100. Cope argues that "[i]n reality the override cases have little actual effect on the ultimate imposition of the death penalty, because the cases are so frequently reversed. As a practical matter, most such defendants wind up with a life sentence." Id. Return to text.

[113] See Governor's Veto, supra note 18, at 1-2. Return to text.

[114] See James Kilpatrick, Is Florida About to Execute an Innocent Man?, FLA. TIMES-UNION, June 8, 1995, at A17. Return to text.

[115] See Mello, Jurisdiction To Do Justice, supra note 4, at 927-38; Mello, Taking Caldwell Seriously, supra note 4, at 286-90. Return to text.

[116] Mello, Taking Caldwell Seriously, supra note 4, at 299-300. In Caldwell, the Supreme Court identified four ways in which a Florida jury could be biased in favor of a death sentence: (1) the jury may not understand the nature of appellate level review, where their recommended sentence and the judge's ultimate sentence are reviewed under a presumption of correctness; (2) the jury may render a death sentence despite being unconvinced that death is appropriate merely "in order to send a message of extreme disapproval"; (3) the jury may attempt to ensure reviewability by rendering a death sentence under the mistaken assumption that a life sentence is not subject to reversal; and (4) jurors reluctant to impose death might minimize the importance of their decision when told that the alternative decisionmaker is the state supreme court. Id. at 299 (citing Caldwell v. Mississippi, 472 U.S. 320, 330-33 (1985)). Return to text.

[117] See id. at 286. Return to text.

[118] Caldwell, 472 U.S. at 330. Return to text.

[119] Id. Return to text.

[120] Mello, Taking Caldwell Seriously, supra note 4, at 303. Return to text.

[121] Id. at 303. Return to text.

[122] Id. at 310. Return to text.

[123] See supra text accompanying notes 75-98. Return to text.

[124] Caldwell, 472 U.S. at 328-29. Return to text.

[125] See Dugger v. Adams, 489 U.S. 401, 407 (1989). Return to text.

[126] See Harich v. Dugger, 844 F.2d 1464, 1475 (11th Cir. 1988). Return to text.

[127] Mello, Jurisdiction To Do Justice, supra note 4, at 964-70. Return to text.

[128] Id. at 964. Return to text.

[129] Id. Return to text.

[130] Id. at 969. Return to text.

[131] Id.; see also supra text accompanying notes 30-34. Return to text.

[132] Spaziano v. Florida, 468 U.S. 447, 473 (1984) (Stevens, J., concurring in part and dissenting in part). Return to text.

[133] Mello, Jurisdiction to Do Justice, supra note 4, at 968. Return to text.

[134] Id. at 969. Return to text.

[135] See Blitch v. Buchanan, 131 So. 151, 157 (Fla. 1930) ("Capital punishment . . . is prescribed by statute [and] adjudged by the court."). Return to text.

[136] See id. Return to text.

[137] See Mello, Jurisdiction To Do Justice, supra note 4, at 968. Return to text.

[138] See Mello & Robson, Judge Over Jury, supra note 4, at 75. Return to text.

[139] See Harris v. Alabama, 115 S. Ct. 1031, 1038 (Stevens, J., dissenting); Spaziano v. Florida, 468 U.S. 447, 477-78 (1984) (Stevens, J. concurring in part and dissenting in part). The Supreme Court has concluded that deterrence cannot be used to support judicial as opposed to jury discretion in capital cases because it is within the legislature's domain to establish on which offenses the death penalty has a deterrent effect. See Gregg v. Georgia, 428 U.S. 153, 186 (1976). Return to text.

[140] Harris, 115 S. Ct. at 1038 (Stevens, J., dissenting) (citations omitted). Return to text.

[141] Id. at 1039. Return to text.

[142] Id. Return to text.

[143] See id. at 1037-43; Spaziano, 468 U.S. at 481-90 (Stevens, J., concurring in part and dissenting in part); see also Mello & Robson, Judge Over Jury, supra note 4, at 47-51. Return to text.

[144] Mello & Robson, Judge Over Jury, supra note 4, at 51. Return to text.

[145] State v. Dixon, 283 So. 2d 1, 8 (Fla. 1973), cert. denied, 416 U.S. 943 (1974). Return to text.

[146] Proffitt v. Florida, 428 U.S. 242, 252 (1976). Return to text.

[147] Id. Return to text.

[148] See Capital Jury Project, supra note 104, at 1050-52. After Gregg v. Georgia, the Court began to discount statutory guidelines and relax judicial scrutiny of capital sentencing discretion by (1) removing statutory mitigation from the jury's consideration, (2) relaxing the guidance of statutory aggravating considerations, (3) extending the scope of nonstatutory aggravating circumstances, and (4) no longer requiring that the jury's sentencing decision be monitored for compliance with state statutory guidelines through a proportionality review. Id. Return to text.

[149] Id. Return to text.

[150] See supra text accompanying notes 41-49, 54-74. Return to text.

[151] Mello & Robson,Judge Over Jury, supra note 4, at 44-45. Return to text.

[152] Id.; see also Cope, supra note 100, at 101 (suggesting that the "[a]doption of a unanimous jury requirement would automatically eliminate the override cases"). Return to text.

[153] See Governor's Veto, supra note 18, at 1. Return to text.

[154] See Fla. CS for HB 1319, § 3 (1995); see also Sue Carlton, Juries Could Lose Court Clout, ST. PETE. TIMES, May 22, 1995, at B9. Return to text.

[155] Governor's Veto, supra note 18, at 2. Return to text.

[156] See Mello,Taking Caldwell Seriously, supra note 4, at 310. Return to text.

[157] See Exec. Office of the Gov., Office of Planning and Budgeting, Legislative Bill Analysis, CS for HB 1319 (May 16, 1995) (on file with Exec. Office of the Gov., Office of Legis. Aff.) [hereinafter Legislative Bill Analysis]; Fla. H.R. Comm. on Crim. Just., CS for HB 1319 (1995) Staff Analysis 6 (final Apr. 11, 1995) (on file with comm.) [hereinafter Staff Analysis]; see also Bill Tramples On Morality, supra note 15, at A14. Return to text.

[158] Legislative Bill Analysis, supra note 157. Return to text.

[159] Fla. CS for HB 1319, § 3 (1995); see also Legislative Bill Analysis, supra note 157, at 2; Staff Analysis, supra note 157, at 7. Return to text.

[160] Fla. CS for HB 1319, § 3 (1995); see also Staff Analysis, supra note 157, at 7. Return to text.

[161] Fla. CS for HB 1319, § 3 (1995) (emphasis added). Return to text.

[162] Michael Griffin, Chiles Lets Prison Bill Become Law; The Next Fight: How To Pay for the New Prisons and Guards—Through Bonds or Tax Revenues, ORLANDO SENT., June 15, 1995, at C1. Return to text.

[163] Governor's Veto, supra note 18, at 2. Return to text.

[164] 115 S. Ct. 1031 (1995). Return to text.

[165] Id. at 1035. Return to text.

[166] Eroding the Role of Juries, ST. PETE. TIMES, Apr. 22, 1995, at A16 [hereinafter Eroding the Role of Juries]. Return to text.

[167] Legislative Bill Analysis, supra note 157, at 4. Ironically, Committee Substitute for House Bill 1319 was inconsistent with these suggestions. Id. Return to text.

[168] Governor's Veto, supra note 18, at 2. Return to text.

[169] See supra text accompanying notes 138-44. Return to text.

[170] See supra text accompanying notes 99-147. Return to text.

[171] The Florida Attorney General's Office believed that the bill would have significantly reduced the number of death row appeal cases; however, the Capital Collateral Representative disagreed. See Legislative Bill Analysis, supra note 157, at 5. Return to text.

[172] Governor Chiles declared that the bill would increase "the already untenable time that death cases languish in court." Governor's Veto, supra note 18, at 1. Return to text.

[173] See Harris v. Alabama, 115 S. Ct. 1031, 1035-37 (1995). Return to text.

[174] See Governor's Veto, supra note 18, at 1. Both proponents and opponents of the bill agreed that the provision would have "create[d] initial litigation for that offender to whom it first applie[d]," because the Florida Supreme Court would "need to reevaluate the 'great weight' standard it has assigned to the jury's 'advisory sentence.' " Legislative Bill Analysis, supra note 157, at 4. Return to text.

[175] Governor's Veto, supra note 18, at 1. Return to text.

[176] Id. at 2. Return to text.

[177] See supra text accompanying notes 93-98. Return to text.

[178] See supra text accompanying notes 135-137.2218 Return to text.

[179] See, e.g., Mello & Robson,Judge Over Jury, supra note 4, at 47-51. Return to text.

[180] Bill Diminishes Juries' Influence, FT. LAUD. SUN SENT., June 7, 1995, at 10A. Return to text.

[181] Bill Tramples On Morality, supra note 17, at A14. In his veto, Governor Chiles remarked that the bill's sponsors "have made a good faith effort to address the most difficult and complex problem of deciding which convicted criminal should be put to death. However, the problems I have noted outweigh any improvements they, or I, might find in the bill." Governor's Veto, supra note 18, at 2. Return to text.

[182] See supra text accompanying notes 50-53. Return to text.

[183] See supra text accompanying notes 54-74. Return to text.

[184] Governor's Veto, supra note 18, at 1-2. Return to text.

[185] Eroding the Role of Juries, supra note 166. Return to text.

[186] See supra text accompanying notes 19-24. Return to text.

[187] See Mello, Jurisdiction To Do Justice, supra note 4, at 932. Return to text.

[188] Viewed in this light, and notwithstanding the Supreme Court's decision in Harris v. Alabama, perhaps the Alabama Supreme Court should reconsider its refusal to adopt the Tedder standard in its capital sentencing scheme. Return to text.

[189] See supra text accompanying notes 157-66. Return to text.

[190] Governor's Veto, supra note 18, at 2. Return to text.


Back to the Law Review home page | Adobe Acrobat (PDF) format