Storm of the Decade: The Aftermath of Hurst v. Florida & Why the Storm Is Likely to Continue

Abstract

The U.S. Supreme Court’s decision in Hurst v. Florida was a “hurricanic constitutional event” for capital sentencing, especially in Florida. After the storm made landfall—invalidating Florida’s capital sentencing scheme based on the Sixth Amendment’s guarantee of a trial by jury—the Supreme Court of Florida and Florida courts generally were left to pick up the debris and begin reconstruction. On remand from Hurst v. Florida and in other related cases, the Supreme Court of Florida addressed the immediate issues that Hurst v. Florida presented. Specifically, the Florida Supreme Court interpreted the U.S. Supreme Court’s decision Hurst v. Florida, defined how Hurst v. Florida applied to Florida’s capital sentencing, and determined that Hurst errors are capable of harmless error review. Then, in several related decisions, the Court addressed the retroactivity of the rights the Court defined in Hurst and defined the circumstances in which a Hurst error is, in fact, harmless beyond a reasonable doubt.

However, as this Response to Hurst v. Florida’s Ha’p’orth of Tar: The Need to Revisit Caldwell, Clemons, and Profitt by Craig Trocino and Chance Meyer explains, the way in which the Supreme Court of Florida answered those questions in the immediate aftermath of Hurst v. Florida created and likely will create additional storms—storms that could be just as catastrophic as Hurst v. Florida. First, this Response assesses the aftermath of Hurst v. Florida, summarizing the framework the Supreme Court of Florida created in its wake. Then, this Response analyzes whether the Court heeded the warnings insightfully given in the Trocino and Meyer Article, specifically the importance of the Eighth Amendment in the Court’s post-Hurst discussion. Ultimately, this Response argues that the Court did not, and that failure created turbulence that led to other storms, or issues, and will likely create additional storms in the future. This Response concludes by canvassing what storms may be looming on the horizon based on pending litigation and questions the Supreme Court of Florida left unanswered after Hurst.

Keywords: death penalty, capital sentencing, constitution, constitutional law, Sixth Amendment, Eighth Amendment