If the Supreme Court invalidates Florida's DP scheme, how will that impact Oregon?

This wikilog article is a draft, it was not published yet.

by: Ryan • March 9, 2015 • no comments

The answer to the question that makes up the title of this post is, no one knows. And the reason know one knows is that no one really knows what issues SCOTUS is interested in. As noted in my previous post, SCOTUS re-wrote the question presented. At the blog Crime & Consequences, the potential significance of this was noted as follows:

The U.S. Supreme Court only rarely specifies the question for review itself and that often occurs when the Court wants the latitude to consider overruling prior precedent. This case is on direct appeal from a re-sentencing trial at which Hurst challenged the constitutionality of Florida's capital sentencing procedure. Therefore, there is no limitation on the Court's authority to create new law in this case.

However, the blog also noted:

The Florida capital sentencing procedure is substantially different from the procedure employed by most death penalty States. Therefore, the Court's ruling in this case is not likely to affect death penalty cases in those other States. However, we can expect that attorneys representing prisoners in capital cases will argue the contrary.

How is Florida's death penalty scheme different than most other states?

The Florida capital sentencing process is discussed and explained in the opinion of Justice Shaw, concurring the result in Bottoson v. Moore, 833 So.2d 693, 712-713 (Fla. 2002). Under the Florida capital sentencing procedure, at least seven of twelve jurors are required to vote for a death sentence, but six of twelve may recommend a prison sentence. . . . However, the U.S. Supreme Court has held that States are not constitutionally required to adopt a unanimous jury verdict law, see Apodaca v. Oregon, 406 U.S. 404 (1972)(upholding a state law that permitted a 9-3 jury verdict of guilty in a criminal case).

The U.S. Supreme Court has never addressed the number of jurors required to agree on a sentence enhancement factor, but since Apprendi held that most sentencing enhancement factors are the same as elements of the crime, the Apodaca ruling that apparently requires at least a 3/4 majority would apply to findings of aggravating circumstances.

If you're an Oregon criminal defense lawyer, you know that Apodaca was a plurality opinion, making it potentially ripe for reversal. But you also know that SCOTUS has repeatedly passed on numerous opportunities to overrule Apodaca.

Is it possible that the Supremes could rule that the Florida death penalty scheme is unconstitutional because it allows for less than a unanimous verdict in capital sentencing? And if so, would that start us down the road to a decision where non-capital nonunanimous verdicts were deemed unconstitutional? Your guess is as good as mine.