Florida Supreme Court Refuses to End Non-Unanimous Death Verdicts 

The Florida Supreme Court has upheld a law that permits people to be sentenced to death with the votes of only 8 of 12 jurors.

Florida has a history of permitting non-unanimous juries to recommend death, but a 2016 state supreme court decision halted that practice. After several new justices joined the court, however, it reversed course, and the state legislature passed the current non-unanimity law in 2023.

The state’s standard allowing one-third of the jury to vote against the death penalty is the lowest threshold in the nation. Alabama is the only other state that permits non-unanimous death recommendations, but at least 10 jurors must concur in the recommendation there.

Attorneys for the defendant have indicated they will seek U.S. Supreme Court review of the state high court’s decision. The U.S. Supreme Court held in 2020 that a jury must be unanimous in declaring a defendant guilty but has never weighed in on the constitutionality of a non-unanimous verdict at the penalty phase of a capital case.

“Racist Origins”

The Florida Supreme Court’s decision in Jackson v. Florida came at the end of a year in which Florida was a national outlier, executing 19 people in 2025 — nearly four times the number as any other state. The number of individuals with death warrants in Florida, about 250, is second only to California, which has not executed anyone in 20 years.

Florida’s high death row population is partially a result of permitting death sentences with the agreement of only two-thirds of jurors. As of last year, almost 60 percent of people on Florida’s death row had been sentenced to death by non-unanimous juries. Absent the state’s non-unanimous jury law, deliberations in their cases would have continued until the jurors reached unanimity — some would have almost certainly resulted in a sentence of life in prison.

Even more troubling, non-unanimous death verdicts may increase the likelihood that an innocent person will be executed. Thirty people on Florida’s death row have been exonerated — the highest number of death row exonerations among all states. Ninety-seven percent of those were sentenced to death by non-unanimous juries.

Historians say that laws allowing jury verdicts without unanimity were originally passed to exclude Black jurors from meaningfully participating in jury duty — a point Justice Brett Kavanaugh highlighted in a concurrence in the U.S. Supreme Court’s 2020 Ramos v. Louisiana, a decision forbidding convictions unless all jurors agreed. Non-unanimous jury laws have “racist origins” and “can silence the voices” of Black jurors, Kavanaugh wrote.

The Court in Ramos considered only the finding of a guilty verdict. If a person is convicted of a crime that may carry the death penalty, the case moves from the guilt phase to the penalty phase. A person can only be sentenced to death if the jury returns a death verdict at this phase.

A Changing Legal Landscape

In 2016 in Hurst v. Florida, the Florida Supreme Court considered a predecessor law that permitted a non-unanimous jury to recommend death. The court ruled that the jury must find unanimously that aggravating circumstances exist to make the defendant eligible for the death penalty. If so, the jury must then recommend whether to impose death. An ultimate death recommendation must also be unanimous, the court held, because it “is tantamount to the jury’s verdict in the sentencing phase of trial.”

After three justices reached mandatory retirement age, however, the state supreme court reversed course on that second holding in 2020’s State v. Poole. Nothing in the Sixth Amendment’s right to a jury, the Eighth Amendment’s ban on cruel and unusual punishment, or the Florida Constitution mandates that a jury — as opposed to a judge — make an ultimate determination that death should be imposed, much less unanimously, the newly constituted court said.

Following Poole and a jury’s failure to recommend the death sentence for a defendant convicted of killing 17 people in the Parkland school shooting, the legislature amended state law in 2023 to return to non-unanimity for that recommendation.

Constitutional Arguments Against Non-Unanimous Death

Michael James Jackson was convicted in 2007 of killing an elderly couple, James and Carol Sumner, by burying them alive. His original death sentence was vacated after the state high court’s decision in Hurst. Because of various delays including the Covid-19 pandemic, however, his resentencing did not occur until a month after the legislature’s enactment of the 2023 law. After two hours of deliberation, the jury recommended death by the minimum allowed 8–4 vote.

Jackson and his counsel at the American Civil Liberties Union challenged the 2023 non-unanimity law on multiple grounds. Most simply, Jackson argued that the Sixth Amendment criminal jury right, as understood by the framers, encompassed a right to unanimity for execution decisions.

Jackson also contended that non-unanimity’s impact on Black jurors violated the Equal Protection Clause. Not requiring the agreement of jurors with minority views “creates a breeding ground for racial discrimination” by operating to negate the participation of jurors of color, he said, highlighting Kavanaugh’s Ramos concurrence. An amicus brief by Black-led organizations and lawmakers cited empirical data showing “a difference in viewpoints concerning the death penalty skews along racial lines.” Moreover, the groups argued, comments by Florida lawmakers expressing a desire to target “activist jurors” made clear the law was meant to exclude the perspectives of jurors less inclined toward death.

The effective exclusion of Black jurors, Jackson went on, impacted Black defendants subject to capital sentencing, in violation of the Eighth Amendment’s ban on cruel and unusual punishment. The law further ran afoul of the Eighth Amendment, he argued, because the abandonment of unanimous death recommendations — compounded by the state’s retreat from other capital sentencing safeguards, including ending review of such sentences for comparative proportionality across cases and co-defendants and doubling the number of aggravating factors that can make a defendant death eligible — led the death penalty to be applied arbitrarily and without reserve for the most atrocious crimes.

In addition, Jackson noted that “accidents of time have determined who lives and who dies.” Of the approximately 145 defendants who received Hurst’s sentencing relief, according to a criminal justice group amicus brief, only 85 had their resentencings occur before the legislature reverted to non-unanimity, with 70 resentenced to life.

A Resounding Rejection

In a unanimous decision, the Florida Supreme Court rejected each of Jackson’s challenges. The Supreme Court’s Ramos decision did not render the law unconstitutional, the court wrote, because that case did not address the penalty phase of a capital trial. The court also pointed to precedent finding death could be imposed without a jury’s recommendation, including a U.S. Supreme Court case allowing a judge to override a jury’s recommendation of a lesser sentence.

The court found no validity to Jackson’s claim that the disparate impact of Florida’s non-unanimity law on Black jurors violated equal protection, declaring he came “nowhere close” to proving the racially discriminatory intent the claim required.

With respect to Jackson’s contentions about arbitrariness in death penalty sentencing, the court said simply that it had previously rejected claims about the erosion of safeguards against unconstitutional capital sentencing. It also disagreed that imposition of death or life turned on the timing of Hurst resentencings. It noted that Jackson’s claim was really about fairness: Those resentenced after the 2023 law were more likely to be sentenced to death. Framing the issue as equal protection rather than cruel and unusual punishment, the court reasoned that Hurst did not create a protected legal entitlement but merely changed the procedures used to determine whether the death penalty applied.

Finally, Jackson’s suggestion that the court “rubber-stamps death sentences,” the opinion said, “warrants no response other than a strong caution to counsel.”

The only strand of disagreement came from a concurrence by Justice Jorge Labarga. The court’s precedent in Poole and subsequent cases compelled him to join in the result, he said. But he lamented Florida’s “absolute outlier” nonunanimous standard and underscored the state’s high exoneration rate for people on death row.

Sarah Kessler is an advisor and contributing editor to State Court Report.

Kathrina Szymborski Wolfkot is the managing editor of State Court Report and a senior counsel in the Judiciary Program at the Brennan Center for Justice.