NAPLES — If a killer is headed to death row, a jury needs to recommend it unanimously, contend three Florida legislators who are pushing bills in Tallahassee this session to change Florida law.
The current requirement of seven out of 12 jurors isn't enough to condemn a person to death, they say.
Three bills — two in the House, one in the Senate — seek to amend current Florida law so that unanimity among jurors would be required when suggesting capital punishment to a judge.
In Florida, a first-degree murder case has two phases — one to determine guilt and a second proceeding for the jury to recommend a penalty. Florida is the only state that doesn't require juror unanimity for the recommendation.
"This is out of step with every other state in the United States," said Seth Miller, executive director of the Innocence Project of Florida. "And frankly, it means that a number of people who shouldn't get the death penalty, get the death penalty here in Florida."
With the leading number of death row exonerations in the U.S., Florida's need for capital punishment reform is pressing, Miller emphasized in a recent video sent out to email subscribers.
There have been 23 death row exonerations in Florida since 1973. Illinois follows closely with 20, according to December 2011 figures from the Washington, D.C.-based Death Penalty Information Center.
The legislation proposed for 2012 isn't a new concept.
They highlight a suggestion made by the American Bar Association in a 2006 report, which advises: "Florida should require that the jury's sentencing verdict in capital cases be unanimous and, when the sentencing verdict is a death sentence, that the jury reach unanimous agreement on at least one aggravating circumstance."
Two similar bills died in state House and Senate committee hearings during the 2011 legislative session.
This year, Senate Bill 772, sponsored by Sen. Thad Altman, R-Melbourne; Senate Bill 352, sponsored by Sen. Oscar Braynon, D-Miami Gardens, and House Bill 29, sponsored by Rep. John Patrick Julien, D-North Miami Beach, all seek the same reform: the unanimous jury on death penalty cases.
The hesitancy to pass such legislation is twofold, said a law professor who worked on the bar's report.
"One explanation for the resistance to unanimity is that it might significantly reduce death penalty verdicts," said Christopher Slobogin, director of Vanderbilt University Law School's Criminal Justice Program. "But the unanimity requirement hasn't prevented Texas and other states from sending plenty of people to death row."
Slobogin, who headed the team that wrote the report, said another explanation "is that, since the jury verdict in Florida is advisory in any event, it doesn't matter whether the jury is unanimous. As far as I'm concerned, that's an argument for taking the ultimate decision away from the judge and giving it to the jury."
In theory, a judge in Florida can overrule the jury's decision.
From 1972 to 1999, just under 20 percent of the 857 first-time death sentences involved a judge overriding a jury's recommendation of life imprisonment or life imprisonment without the possibility of parole, according to the report.
Report researchers didn't find instances since 1999 of this judicial override, although it is still legally possible.
If passed, new laws requiring juror unanimity would only apply to convictions after Oct. 1, 2012.
Additionally, Rep. Michelle Rehwinkel Vasilinda, D-Tallahassee, is attempting to abolish the death penalty in Florida by July 2012 with House Bill 4051.
If any of the new legislation passes, it still wouldn't change the fate of two men sentenced to death in Collier County who remain on death row.
Brandy Jennings, found guilty of the 1995 murders of three employees of the Cracker Barrel restaurant in Golden Gate, was sentenced to death a year later when the judge agreed with the jury's 10-2 vote.
The second, Thomas Gudinas, was convicted in Collier in 1995 after the trial was moved to Naples from Orlando. He was found guilty of killing a woman in Orlando in 1994 and was sentenced to death following a 10-2 jury decision.
The next scheduled execution in Florida is Robert Waterhouse on Feb. 15. He was convicted of the 1980 killing of a woman in St. Petersburg.