Supreme Court confronts Florida death sentence challenge | McClatchy Washington Bureau

Florida death-row inmate Timothy Lee Hurst could be closer to successfully challenging his sentence following arguments Tuesday before a divided Supreme Court.

Amid an accelerating debate over crime and punishment, justices confronted how Florida imposes the death penalty and how states like Missouri and Pennsylvania keep certain juvenile offenders locked up for life.

Though unrelated, both cases heard Tuesday morning began with gruesome facts. Both emphasized subtle, if not arid, legal questions. Both could prove consequential; at the very least, for the individuals directly involved.

Hurst, in particular, seemed to fare well, as justices sharply questioned Florida’s system by which juries make death penalty recommendations and judges impose the sentence. Uniquely, Florida allows juries to recommend death based on a bare majority of the 12 jurors.

“Where the question is death, the jury should be unanimous,” Hurst’s attorney, Seth P. Waxman, told the justices. “I mean, there is no other state that permits anyone to be sentenced to death other than (by) a unanimous determination by the jury.”

Formerly U.S. solicitor general in the Clinton administration, Waxman found a sympathetic audience in liberal justices Elena Kagan and Sonia Sotomayor. Both pressed Florida Solicitor General Allen Winsor about the uncertainties inherent in a non-unanimous jury vote.

“What’s the jury finding when it says, ‘seven to five?’” Sotomayor asked skeptically, adding that “we don’t have a unanimous jury, even a functionally equivalent unanimous jury.”

Justice Anthony Kennedy, frequently a swing vote, likewise hinted at doubts about Florida’s system, pointedly asking about a judge who “could go right ahead and impose the death penalty” despite reaching different conclusions than the jury.

Winsor stressed what he called the “protections” provided by Florida.

“Even if it’s a seven-to-five vote, you still have the judge coming behind that jury,” Winsor said. “He or she can disagree for any reason. He or she can give mercy for any reason.”

The hour-long argument Tuesday morning capped a case that began May 2, 1998, when a murder and robbery occurred at a Popeye’s restaurant in Pensacola. Cynthia Harrison, a young assistant manager, was found bound and suffering from 60 slash and stab wounds to her face, neck, back and arms.

Nineteen years old at the time of the murder, Hurst has consistently professed his innocence. His defense attorneys have also argued he was damaged from childhood and has below-average mental capacity.

Under Florida law, a death sentence requires the finding of at least one aggravating circumstance; for instance, that the killing occurred during the course of another felony, or was particularly heinous.

The jury makes a nonbinding recommendation of life or death, after weighing both aggravating and mitigating circumstances. The final sentencing decision is up to the judge, though “great weight” is supposed to be accorded the jury’s recommendation.

“You often are not going to be able to tell whether the judge’s sentence is based on the same aggravating facts that the jury has found,” Kagan noted.

The jury in Hurst’s case recommended a death sentence by a seven-to-five margin.

In 27 of the 31 states that maintain the death penalty, the jury makes the final decision whether to impose the death penalty. Only Florida, Alabama, Delaware and Montana leave the final sentencing decision up to the trial judge.

The court on Tuesday spent very little time discussing whether judges should be taken out of sentencing decisions altogether, suggesting that any ruling in support of Hurst might be narrowly written.

An even narrower focus was applied in a separate sentencing case heard Tuesday, involving challenges to mandatory life-without-parole sentences imposed on juveniles. In a 2012 decision, the court ruled such sentences for juveniles violated the Eighth Amendment’s ban on cruel and unusual punishment.

The question Tuesday was whether the ban applies retroactively to an estimated 1,500 or so juveniles now serving mandatory life terms.

Pennsylvania, for instance, reports having 482 inmates serving mandatory life sentences for crimes committed as juveniles. The oldest, Joseph Ligon, is 78 years old and was convicted of a 1953 murder. Missouri reports having more than 100 inmates sentenced to life as juveniles.

“We have one brief that tells us this court has never barred punishment as cruel and unusual under the Eighth Amendment but refused to make the decision retroactive,” Justice Ruth Bader Ginsburg noted.

Much of the argument in the juvenile sentencing case, though, bogged down on technical questions like jurisdiction, suggesting that the underlying issue might be kicked down the road for a while.

Justice Clarence Thomas, in keeping with his customary practice, was the only justice not to speak or ask questions during the 135 minutes of oral argument Tuesday.

Decisions are expected by the end of June 2016.