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Short-Lived Pride

For the moment, I have the pleasure of saying I live in a state without the death penalty. My pride is likely to be short-lived, however.

The Supreme Court ruled Tuesday that Florida’s system for administering the death penalty gives too much power to judges and too little to juries. In Hurst v. Florida, the case at issue, a jury was divided 7-5 in favor of the death penalty, but a judge imposed the sentence using separate findings. Florida law allows a judge to find “aggravating circumstances” necessary to impose the death penalty independent of jurors’ input. Even if all 12 of the jurors in Hurst’s case had recommended life in prison, the judge could have chosen death instead under the existing legal framework.

The high court ruled 8-1 that it is not sufficient for juries to simply advise a judge on sentencing in such cases. Writing for the court, Justice Sonia Sotomayor said, “The Sixth Amendment protects a defendant’s right to an impartial jury. This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s factfinding.” The decision overruled two prior Supreme Court decisions that had upheld Florida’s law.

Hurst’s case will now return to the Florida Supreme Court, which will determine whether his sentence can be upheld on other grounds. The ruling is also likely to affect at least some of the 390 inmates on death row in Florida. It is not yet clear whether the decision will affect similar sentencing systems in Alabama, Montana or Delaware - which also leave final decisions about the death penalty with judges.

Florida is an outlier, though not the most extreme, as national execution rates decline. Eighteen states, along with the District of Columbia, have abolished the death penalty outright. Twelve others have not actually carried out an execution in nine years or more. But Florida was one of four states that collectively made up 93 percent of executions carried out in 2015. The other three were Texas, Missouri and Georgia. (Oklahoma and Virginia, with one execution each, completed the total.) Florida also had the dubious honor of carrying out the first execution in the country for 2016.

That any U.S. state still executes anyone is a failure. As I have written before, I believe strongly that the death penalty should be abolished in all circumstances. Ritualized murder diminishes us as a society. It cruelly punishes the innocent family members who survive a prisoner after the sentence is carried out, and sometimes as the execution occurs in the disturbingly common instance where something goes wrong. It has ghastly consequences whenever it is imposed, let alone carried out, in error.

Further, it puts us in the company of societies whose justice systems we have no wish to emulate. According to Amnesty International’s statistics for 2014, the U.S. is fifth in total executions behind China, Iran, Saudi Arabia and Iraq, a club we should want to leave as soon as possible. We remain the only country in the Americas to carry out executions; Europe is free of the death penalty with the exception of Belarus.

While its moral dimension is surely sufficient grounds for its abolition, the death penalty is not practical, either. It is disproportionately expensive, cumbersome and arbitrary in its administration. Add to that the fact that until this week, Florida and just two other states - Alabama and Delaware - allowed it to be imposed or considered without a unanimous conclusion by a jury.

It is too bad the Supreme Court did not take this occasion to absolutely strike down capital punishment. It did not even demand that juries impose it by unanimous vote. It merely said the imposition of the penalty must be done by a jury, not by a judge. But such a jury will never include someone like me, who opposes capital punishment, because I would be systematically removed from the jury pool in a capital case. So much for a trial by a jury of one’s peers in Florida, unless someone with my perspective is considered not to be anyone’s peer.

I fully expect Florida’s Legislature to re-enact capital punishment in a form it believes will survive constitutional scrutiny. I hope I am wrong, but I doubt that I am. It is pointless, expensive, ineffective and cruel, but the death penalty is still good politics in a state like Florida -- or at least it has been up until now. And that is probably enough to get it put back on the books.

For as long as the hiatus lasts, though, I will be proud to live in a state that puts convicts away, but not six feet under.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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