Supreme Court justices expressed skepticism about Florida’s advisory system for determining capital punishment as they heard oral arguments in two sentencing cases on Tuesday.

In the Florida case, a judge sentenced Timothy Lee Hurst to death for the 1998 murder of his fast-food co-worker after jurors found two aggravating circumstances and recommended the death penalty by a 7-5 vote, the Washington Post reports. The New York Times and the National Law Journal (sub. req.) also covered the arguments.

It was unclear whether all seven jurors agreed to both circumstances, according to the Post report. Jurors were told their recommendation wasn’t binding on the judge, who has the final decision. And the judge could still consider additional evidence in the sentencing decision.

Arguing on behalf of Hurst, former Solicitor General Seth Waxman said that unusual combination of circumstances made Hurst’s sentence unconstitutional. Waxman pointed to a 2002 decision, Ring v. Arizona, that said defendants have a right to a jury determination of aggravating circumstances making them eligible for the death penalty.

“There is no other state that permits anyone to be sentenced to death other than by a unanimous determination by the jury,” Waxman argued. “And the State of Florida requires unanimity for shoplifting, just not for death.”

According to the Post coverage, the justices “seemed troubled” by Florida’s system, while the Times concluded that “Florida’s idiosyncratic capital sentencing system appeared to be in peril.”

The case is Hurst v. Florida.

In the other case, Montgomery v. Louisiana, the justices were asked to decide whether its 2012 decision barring mandatory sentences of life without parole for juvenile killers is retroactive. The petitioner, Henry Montgomery, was 17 when he killed a police officer. He is now 69 and seeking parole.

But much of the argument concerned whether the Supreme Court had jurisdiction to review the Louisiana Supreme Court decision applying the federal retroactivity doctrine in the case, which did not come to the court as a habeas appeal, the National Law Journal explains. A lawyer appointed to argue the jurisdictional issue said the Supreme Court had no jurisdiction unless it found its retroactivity doctrine is required in state collateral review proceedings.

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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