On Wednesday, November 25, 2020, the Florida Supreme Court refused to reinstate death penalty sentences for two men whose death sentences were vacated pursuant to a 2016 U.S. Supreme Court ruling.

The men, Bessman Okafor and Michael James Jackson, had been convicted of murder and sentenced to be executed prior to the January 2016 U.S. Supreme Court ruling in Hurst v. Florida. The issue there was whether the death sentence in Florida was constitutional. The U.S. Supreme Court found that it was not because although the jury found the defendant guilty, the judge alone determined what the sentence would be. In Florida up to that time, the jury gave the judge a sentencing recommendation, which the judge would consider before setting the sentence personally.

In response to this decision, in March 2016 the Florida legislature redrafted its capital sentencing statute. The new law required that juries unanimously find at least one aggravating factor and recommend a death sentence by at least a 10-2 vote.

In October 2016, the Florida Supreme Court in the Hurst case made its own decisions about the death penalty, finding that Florida juries must:

1. Unanimously find aggravating factors proven beyond reasonable doubt

2. Unanimously find that the aggravating factors were sufficient to impose death

3. Unanimously find that the aggravating factors outweigh the mitigating factors, and

4. Unanimously recommend a sentence of death.

The Florida Supremes made the decision retroactive to include cases that were not final as of 2002 when the U.S. Supreme Court ruled in Ring v. Arizona that a judge, not a jury, must find the aggravating factors required to impose a death sentence. As a result of this retroactivity, over 150 death row prisoners in Florida became eligible for resentencing. Okafor and Jackson were two of them.

But then, in January 2020, the Florida Supreme Court made a ruling in the Poole case that juries did not have to be unanimous in capital punishment cases. This was a quick reversal of the court’s own decision made in 2016. This decision was made after the Florida Supreme Court had acquired new justices with more conservative views than those of the 2016 court. The current court’s conservative majority called the 2016 order “clearly erroneous.”

After this sudden reversal, prosecutors began asking the Supreme Court to reinstate the death sentences that had been vacated when the rules about unanimous juries went into effect. Attorney General Ashley Moody requested the Florida Supreme Court to reinstate the death sentences for Okafor and James, rather than subjecting the families of the victims to dealing with another court battle to see justice done. The Attorney General’s office contended that reinstating the sentences was the right thing to do in light of the Supreme Court decision to back away from the 2016 ruling on unanimity of sentencing.

The Supreme Court’s Wednesday opinion noted, “We hold that our judgment vacating Okafor’s death sentence is final, that neither we nor the trial court can lawfully reinstate that sentence and that resentencing is therefore required.” They noted that the deadline to recall that mandate had expired years ago. All seven justices agreed. The court also said, “We realize that resentencing in a capital case is time-consuming and costly, all at the public’s expense. These considerations, however compelling, do not give us a license to exceed the legal constraints on our authority.” This means that other death row inmates won’t be sent back automatically to face execution.

“It does seem like you are trying to get a very belated second bite at the apple,” Judge Muniz said to Assistant Attorney General Stephen Ake during the arguments in the Jackson case. “I mean, how does that make sense?”

Maria DeLiberato, an attorney for Jackson, commented that the state’s position in this case was “effectively a hail Mary,” agreeing that the state has no justification for reinstating the original death sentences.

Founding director of the Florida Center for Capital Representation and professor at Florida International University, Stephen K. Harper, called the Supreme Court’s January 2020 decision against unanimous juries “reckless.” He admitted that it is good that people who were granted resentencing by the courts will actually get that resentencing.

Florida was one of the few states that did not require a jury to decide unanimously on the death sentence for capital offenses. The U.S. Supreme Court has ruled Florida’s death penalty practices to be unconstitutional on at least four occasions, in 1982, 1987, 2014, and 2016.

Okafor’s resentencing hearing had been set for March 2020, and Jackson’s was to be in February 2020. Both were put on hold until the outcome of the Supreme Court case was known. Both men will have resentencing hearings, but no dates have been made public.