Wake Forest Law Review
17Nov

Death Knell for Death Penalty After the Parkland Shooter Verdict?

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By Kendall Carter

Florida has executed more people than just about any other state.[1]  However, Florida also gets it wrong more than anyone else.  Florida has had thirty exonerations from death row, more than any other state, and it’s not even close.[2]

On October 13, 2022, after months of proceedings, a Broward County jury recommended a sentence of life in prison without the possibility of parole for each of Nicholas Cruz’s 17 counts of first-degree murder.[3]  Cruz carried out the February 14, 2018, massacre at Marjory Stoneman Douglas High School in Parkland, Florida, slaying fourteen students and three faculty and staff members.[4]  Cruz had plead guilty to the charges last year, so the jury trial focused solely on the sentencing phase.[5]  Prosecutors submitted seven aggravating factors—circumstances required to make an individual guilty of first-degree murder eligible for the death penalty—including that the offender created a “great risk of death” to many persons, the homicides were especially heinous, atrocious, and cruel, and the homicides were committed in a cold, calculated, and premeditated manner.[6]  The defense submitted forty-one mitigating factors,[7] far more than the seven statutorily defined mitigating factors, relying on the residual provision in Fla. Stat. § 921.141(7)(h) to present “any other factor[s]” that would make the imposition of a life sentence more appropriate.[8]  One statutory factor presented was that “the defendant was under the influence of extreme mental or emotional disturbance” when the crime took place.[9]  One “other factor” presented was that Cruz’s mother’s heavy alcohol use while pregnant “poisoned” Cruz, leading to fetal alcohol spectrum disorder.[10]  While the jurors unanimously determined that the prosecutors had proven seven aggravating factors beyond a reasonable doubt,[11] three of the jurors did not agree that the aggravating factors outweighed the mitigating factors.[12]  As such, the jury could not recommend a sentence of death.[13]

Many of the victims’ families expressed shock and outrage at the verdict, including Linda Beigel Schulman, whose son, Scott Beigel, a geography teacher at Stoneman Douglas, was killed.[14]  After the verdict was read, Ms. Schulman lamented, “If this was not the most perfect death penalty case, then why do we have the death penalty at all?”[15]  Fred Guttenberg, whose 14-year-old daughter, Jamie, was also among the victims, said, “This jury failed our families today.  Seventeen families did not receive justice.”[16]  Surprise, however, was not limited to the victims’ families.  Indeed, “[w]ith the trial being watched worldwide and with ample evidence of the brutality of Cruz’s rampage, many legal observers had believed Cruz’s defense team faced an uphill battle in convincing a jury to spare his life.”[17]  This was the deadliest mass shooting to be adjudicated by a trial in the U.S., yet it still didn’t result in a death verdict.[18]

One may, understandably, feel that a life without parole sentence in such a high-profile case—in a death penalty-friendly state like Florida, no less—might signal a shift in public sentiment against the death penalty.  Certainly, support for the death penalty in the U.S. is at its lowest point (fifty-four percent) since 1972,[19] when the Supreme Court issued, what amounted to, a four-year moratorium on the death penalty in Furman v. Georgia, but this verdict reveals a far more complex picture of where the death penalty stands in America.[20]  On one hand, says Former Miami-Dade senior homicide prosecutor Abe Laeser, defense attorneys will likely use this case as leverage with prosecutors: “[A] lawyer will say, ‘My client didn’t shoot 17 school kids with 139 bullets.  If that guy doesn’t deserve it, my guy doesn’t deserve it.’”[21]  Likewise, Laeser predicts, “Across the board, prosecutors who are pro-death penalty are going to be in a difficult position to make their cases to trial juries and trial judges.”[22]

On the other hand, Cruz’s verdict appears to have galvanized pro-death penalty sentiment in Florida, spurring demands to reform Florida’s death penalty laws.[23]  In recent years, the death penalty has been overhauled in Florida.[24]  First, in 2016, the Supreme Court of the United States ruled that Florida’s death penalty was unconstitutional as it violated the Sixth Amendment’s guarantee of the right to a jury trial.[25]  The Florida sentencing statute at the time “does not make a defendant eligible for death until ‘findings by the court that such person shall be punished by death.’”[26]  Additionally, Florida’s capital punishment-specific statute tasks the trial court alone with the finding “[t]hat sufficient aggravating circumstances exist” and “[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances.”[27]  This effectively meant that the jury’s recommendation was “advisory only,” empowering judges to find that a death sentence was warranted, even if the jury recommended life in prison.[28]

However, during this time, another element of Florida’s sentencing statute elicited questions.[29]  A simple majority vote was all that was required in Florida, one of only three states that permitted nonunanimous jury recommendations in capital sentencing.[30]  Not only could death sentences be overruled by the judge, but also, they need not be unanimous.[31]  Hurst called Florida’s death penalty practices into question, so the legislature amended the death penalty statute to align Florida’s practice with constitutional principles.[32]  First, the March 2016 amendment eliminated judges’ ability to override jury sentencing recommendations.[33]  Second, the amendment mandated that jurors unanimously determine that the prosecution has proven aggravating factors, making the defendant eligible for a possible death sentence.[34]  Finally, the statute no longer permitted a simple majority to impose the death penalty but did not go so far as requiring a unanimous vote, instead requiring that at least ten jurors sign on to the ultimate death sentence.[35]  However, in October 2016, the Supreme Court of Florida struck down the statutory amendment because while aggravating factors must be found by unanimous vote, the statute still did not require a unanimous vote for the ultimate imposition of the death penalty.[36]  As a result, it was not until March 2017 that death sentences in Florida had to be unanimous, after the Florida legislature again amended the statute.[37]  It is this statute that guided the prosecution in Cruz’s case.[38]

With Ron DeSantis securing reelection as governor of Florida in a decisive victory earlier this month,[39] Florida is poised to make a significant change in its death penalty policies.[40]  At a campaign stop on October 16, 2022, Governor DeSantis expressed his frustration at Cruz’s jury verdict, lamenting, “I’m sorry, when you murder 17 people in cold blood, the only appropriate punishment is capital punishment.”[41]  Governor DeSantis also signaled his intentions to work with the Florida legislature to reform the laws governing the death penalty, hinting at Florida’s fickle sentencing statute.[42]  During DeSantis’s first term as governor, as many people were executed as were exonerated from Florida’s death row.[43]  Yet Governor DeSantis looks to return to the prior sentencing regime, specifically sanctioned by the United States Supreme Court, that would allow fewer than twelve jurors or even just one particularly pro-death judge to sentence a criminal defendant to death.[44]  When death verdicts are easier to come by, it is easy to see how innocent people get swept up in the melee. Eliminating the need for unanimous jury verdicts in capital cases would, warns Robert Durham, executive director of the Death Penalty Information Center, “make it more likely innocent people will receive the death penalty.”[45]  Durham directly attributes Florida’s high exoneration rate to its history of relying on nonunanimous juries to sentence its defendants to death.[46]  Given that he plead guilty last year, Cruz’s case is probably not one that elicits concerns of a possible exoneration down the line.  Nonetheless, the high-profile nature of the case opens the door to significant changes in the way Florida juries hand down death sentences.  As a result, future defendants whose guilt is less than certain may have only ten or even seven jurors to decide if they live or die.  If Governor DeSantis keeps his word to make imposing the death penalty easier in Florida, the Broward County jurors may have had more of an impact on the future of the death penalty than they realized when they took their oaths.

[1] Executions Overview, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/executions-overview. Only Texas (577), Oklahoma (118), and Virginia (113) have carried out more executions since 1976.

[2] Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/florida; Innocence, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/innocence.  The state with the second highest number of exonerations is Illinois with 22, and then the numbers fall off from there.

[3] Dakin Andone et al., Parkland School Shooter Avoids the Death Penalty after Jury Recommends Life in Prison, CNN (Nov. 9, 2022, 11:47 PM), https://www.cnn.com/2022/10/13/us/nikolas-cruz-jury-deliberation-thursday.

[4] Id.

[5] Id.

[6] Id.; Fla. Stat. § 921.141(6).

[7] Andone et al., supra note 3.

[8] Fla. Stat. § 921.141(7).

[9] Patrick J. Lyons & Patricia Mazzei, ‘Mitigating Circumstances’ Spared the Gunman’s Life. What Are They?, N.Y. Times (Oct 13. 2022, 2:21 PM), https://www.nytimes.com/2022/10/13/us/mitigating-factors-parkland-jury.html?smid=url-share.

[10] Id.

[11] Patricia Mazzei & Nicholas Bogel-Burroughs, The Gunman Will Be Sentenced to Life in Prison Without Parole, N.Y. Times (Oct. 14, 2022), https://www.nytimes.com/2022/10/13/us/parkland-trial-verdict-gunman.html?smid=url-share.

[12] Andone et al., supra note 3.

[13] Patricia Mazzei & Audra D. S. Burch, Juror Describes Last-Ditch Bid to Deliver Death Sentence in Parkland Trial, NY Times (Oct. 15, 2022), https://www.nytimes.com/2022/10/15/us/parkland-trial-juror-death-sentence.html.

[14] Patricia Mazzei & Nicholas Bogel-Burroughs, ‘What Is the Death Penalty For?’ Parkland Victims’ Families Question Jury’s Decision., N.Y. Times (Oct. 13, 2022, 2:02 PM), https://www.nytimes.com/2022/10/13/us/parkland-families-death-penalty.html?smid=url-share.

[15] Id.

[16] Id.

[17] David Ovalle & Mary Ellen Klas, What’s Next for the Death Penalty – in Florida? – Legal Experts Predict That the Parkland Verdict for a Life Sentence Will Make It Harder to Secure Death-Penalty Convictions in Florida., Mia. Herald (Oct 14. 2022), https://www.miamiherald.com/news/local/crime/article267258577.html.

[18] Terry Spencer, Parkland School Shooter Spared from Execution for Killing 17, AP News (Oct. 13, 2022), https://apnews.com/article/parkland-shooter-jury-recommendation-live-updates-15c5121be1b8b7a73b85607d602e6ba2.

[19] Death Penalty, Gallup, https://news.gallup.com/poll/1606/death-penalty.aspx.

[20] Furman v. Georgia, 408 U.S. 238 (1972).  The moratorium ended four years later with Gregg v. Georgia, 428 U.S. 153 (1976).

[21] Ovalle & Klas, supra note 17.

[22] Id.

[23] Gary Fineout, Parkland Verdict May Reopen Florida Death Penalty Law, POLITICO (Oct. 14, 2022, 7:05 AM), https://www.politico.com/newsletters/florida-playbook/2022/10/14/parkland-verdict-may-reopen-florida-death-penalty-law-00061815.

[24] Hurst v. Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/stories/hurst-v-florida.

[25] Hurst v. Florida, 577 U.S. 92 (2016).

[26] Id. at 99–100 (quoting Fla. Stat. § 775.082(1) (emphasis added)).

[27] Id. at 100 (quoting Fla. Stat. § 921.141(3)).

[28] Spaziano v. State, 433 So.2d 508, 512 (Fla. 1983).  See James C. McKinley Jr., Why Does Florida Require a Unanimous Jury Decision to Impose a Death Sentence?, N.Y. Times (Oct. 13, 2022), https://www.nytimes.com/2022/10/13/us/florida-death-penalty-jury.html.

[29] Hurst v. Florida, supra note 24.

[30] McKinley, supra note 28.

[31] Id.

[32] Hurst v. Florida, supra note 24.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] McKinley, supra note 28.

[39] Anthony Izaguirre, DeSantis Defeats Crist, Wins 2nd Term as Florida governor, AP News (Nov. 8, 2022), https://apnews.com/article/florida-governor-race-2022-midterm-elections-4b2fe3a05668ed67119511838339110e.

[40] Fineout, supra note 23.

[41] Demie Johnson, Gov. DeSantis Calls on Changes to Death Penalty Law after Parkland Shooter Sentencing Hearing, WFTV (Oct. 16, 2022, 10:29 PM), https://www.wftv.com/news/local/gov-desantis-calls-changes-death-penalty-law-after-parkland-shooter-sentencing-hearing/57NEAEVPVFHNRIHQWBHTAWFHFY/.

[42] Id.

[43] Florida, supra note 2; Innocence Database – Florida, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/policy-issues/innocence-database?state=Florida.

[44] Bruce Ritchie, DeSantis Says Parkland Shooter Deserves the Death Penalty, POLITICO (Oct. 13, 2022, 2:02 PM), https://www.politico.com/news/2022/10/13/parkland-school-shooter-to-get-life-sentence-for-killing-17-00061661.

[45] Greg Allen, Florida Is Poised to Change the Way It Imposes the Death Sentence in Trials, Morning Edition, NPR (Nov. 1, 2022, 5:02 AM), https://www.npr.org/2022/11/01/1133041129/florida-is-poised-to-change-the-way-it-imposes-the-death-sentence-in-trials.

[46] Id.

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1May

Choosing to Go Out with a Bang: Examining Executions by Firing Squad

Categories: Current Issues Blog
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By Grace Koppenheffer

As morbid as it is, most of us have probably thought about the way we would want to die, and the ways we definitely would not.  We instinctively recoil against those deaths that seem the most painful, the most inhumane.

Richard Bernard Moore, a death row inmate in South Carolina, was the first South Carolina prisoner to decide the method of his execution.[1]  In 2021, after South Carolina had had problems for years securing lethal injection drugs, the state passed a law that “made the electric chair the default execution method instead of lethal injection, and also codified the firing squad as an alternative option for condemned inmates.”[2]  Moore’s options were either death via electric chair or death via firing squad, and although he found both options unconstitutional, “he more strongly opposed death by electrocution and only chose the firing squad because he was required to make a choice.”[3]  His death was scheduled for April 29, 2022, but the South Carolina Supreme Court issued a temporary stay on April 20, 2022.[4]

Moore’s death would have been the first time South Carolina killed an inmate via firing squad, and only the fourth firing squad execution in the country since 1976.[5]  Although four states (Mississippi, Oklahoma, South Carolina, and Utah) allow death by firing squad, the previous three all happened in Utah, with the most recent firing squad execution in 2010.[6]  In Utah, “[t]he prisoner is strapped into a chair, has a hood put over his or her face and a target placed on his or her chest above the heart.”[7]  In the event of stray bullets or ricochet, sandbags are placed around the chair.[8]  There are five sharpshooters, but one has a blank, so that each shooter can have “psychological deniability,” which may itself be imperfect because “they can tell the difference between live ammunition and a blank.”[9]  The South Carolina law provides, “[i]n the case of a firing squad execution, three volunteer prison workers will train their rifles on the condemned prisoner’s heart.”[10]

The Eighth Amendment guarantees that “cruel and unusual punishment [cannot be] inflicted.”[11]  The United States Supreme Court, however, has never struck down a method of carrying out the death penalty as unconstitutional.[12]  In the 1878 case Utah v. Wilkerson,[13] the Court explicitly stated that death by firing squad was constitutional: “[c]ruel and unusual punishments are forbidden by the Constitution, but . . . the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment.”[14]  The Court, however, acknowledged that “punishments of torture,” including being “embowelled alive, beheaded, and quartered,” all practices that were at one time legal but which even the Court in 1878 recognized as “atrocious,” would be unconstitutional.[15]  When Wilkerson was executed sixty days after the Court’s decision, he chose not to be blindfolded.[16]  “[W]hen the sheriff commanded, ‘Ready, aim,’ Wilkerson would draw up his shoulders, causing the target to move and the bullets to miss the target, causing him to jump forward, screaming, ‘Oh God!’”[17] It took him twenty-seven minutes to die, bleeding and withering on the ground.[18]

In Baze v. Rees,[19] followed by Glossip v. Gross[20] and Bucklew v. Precythe,[21] the Court created a two-pronged test for an inmate to challenge the constitutionality of the method of his death: “first, he must demonstrate that the method of execution is very likely to cause substantial harm or suffering, and second, he must present a feasible, readily implemented, less painful alternative that is prescribed by at least one state.”[22]

Scholars, politicians, and those sentenced to death have various opinions about execution by firing squad.  In 2014, Representative Paul Ray from Utah described execution by firing squad as “probably the most humane way to kill somebody.”[23]  Some scholars also argue that the firing squad is better than lethal injection as a means of execution because it is less likely to be botched and it is less painful.[24]  Additionally, “[i]nmates in Alabama, Ohio, Tennessee, and Texas have asked to be executed by firing squad, arguing that lethal injection is very likely to have a risk of serious harm,” providing some evidence that if forced to choose, people would rather die by firing squad.[25]  Even Moore chose death by firing squad over the electric chair when he had to choose between them.

On the other hand, some, like Moore’s lawyers, have argued that execution by firing squad is “barbaric.”[26]  Some scholars contend that death by firing squad is not any less painful or less likely to be botched because “[h]urling projectiles toward an inmate in the hopes of causing cardiac failure, asphyxiation, or some other condition that will result in death, is far from an exact science.”[27]  Additionally, the inmates requesting execution by firing squad reside in states that do not allow that method to carry out the death penalty.[28]  In those states that do allow inmates to choose death by firing squad, they rarely do, and if they do elect such a method, they do so for reasons other than to reduce pain.[29]

Moreover, the Americans Civil Liberties Union of South Carolina has criticized South Carolina’s death penalty legislation as “modern-day lynching,” in part because only 27% of the state’s population is black but over half of those on death row are black.[30]  Executive director Frank Knaack stated, “[l]et’s not kid ourselves, this bill is about finding a new way to restart executions within a racist, arbitrary, and error-prone system.  We cannot divorce the method of execution from the system itself.”[31]

For those who oppose carrying out the death penalty by firing squad, the best route may be to go through legislatures rather than trying to have courts invalidate the method.  After all, “[s]hocking as they are, archaic methods of execution can affect how the public regards capital punishment,” and the legislature is designed to respond to public sentiment.[32]  If our modern sensibilities recoil from the thought of the firing squad being humane, not only will we as a society have to grapple with what methods are humane, but also we will need to grapple with whether the death penalty as a whole is humane.  As one judge put it, “[i]f we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”[33]

[1] Michelle Liu, South Carolina Inmate Picks Firing Squad over Electric Chair, AP News (Apr. 15, 2022), https://apnews.com/article/business-south-carolina-executions-5517b5184f8818bdd53e252af3b9cfc1.

[2] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, NPR (Apr. 20, 2022, 2:38 PM), https://www.npr.org/2022/04/20/1093812483/firing-squad-execution-blocked-south-carolina.

[3] Liu, supra note 1.

[4] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, supra note 2.

[5] Id.

[6] Id.

[7] Laurel Wamsley, With Lethal Injections Harder To Come by, Some States Are Turning to Firing Squads, NPR (May 19, 2021, 5:00 AM)), https://www.npr.org/2021/05/19/997632625/with-lethal-injections-harder-to-come-by-some-states-are-turning-to-firing-squad.

[8] Id.

[9] Id.

[10] Liu, supra note 1.

[11] U.S. Const. amend. VIII.

[12] Methods of Execution, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/methods-of-execution (last visited Apr. 25, 2022).

[13] 99 U.S. 130 (1878).

[14] Id. at 134–35

[15] Id. at 135–36.

[16] Rob Warden & Daniel Lennard, Death in America Under Color of Law: Our Long, Inglorious Experience with Capital Punishment, 13 Nw. J. L. & Soc. Pol’y 194, 214 (2018).

[17] Id.

[18] Id.

[19] 553 U.S. 35 (2008) (plurality opinion).

[20] 135 S. Ct. 2726 (2015).

[21] 139 S. Ct. 1112 (2019).

[22] Stephanie Moran, Note, A Modest Proposal: The Federal Government Should Use Firing Squads to Execute Federal Death Row Inmates, 74 U. Mia. L. Rev. 276, 296 (2019).

[23] Mark Berman, The Recent History of States Contemplating Firing Squads and Other Execution Methods, Wash. Post (May 22, 2014), https://www.washingtonpost.com/news/post-nation/wp/2014/05/22/the-recent-history-of-states-contemplating-firing-squads-and-other-execution-methods/.

[24] See, e.g., Moran, supra note 22, at 299 (“[S]cientific research indicates that the initial pain felt by the victim may be comparable to being punched in the chest. There is some indication that the pain may also be hampered by an ‘adrenaline surge.’”) (quoting Christopher Q. Cutler, Nothing Less than the Dignity of Man: Evolving Standards, Botched Executions and Utah’s Controversial Use of the Firing Squad, 50 Cleveland St. L. Rev. 335, 413 (2002)).

[25] Id. at 304.

[26] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, supra note 2

[27] Michael Conklin, No, the Firing Squad Is Not Better Than Lethal Injection: A Response to Stephanie Moran’s A Modest Proposal, 44 Seattle U. L. Rev. 357, 369 (2021).

[28] Id. at 362

[29] Id.

[30] Wamsley, supra note 7.

[31] Id.

[32] Id.

[33] Wood v. Ryan, 759 F.3d 1076, 1103 (9th Cir. 2014) (Kozinski, C.J., dissenting), vacated by Ryan v. Wood, 573 U.S. 976 (2014).

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