Hurst v. Florida

ADAH – Alabama Department of Archives & History

Alabama Moments in American History

Alabama's 1901 Constitution

"Supremacy" and the Stolen Vote

(An article by Harvey H. Jackson III that originally appeared in the Mobile Register,
December 11, 1994.)

"White Supremacy, Honest Elections and the New Constitution, One and Inseparable."

That was the slogan printed across envelopes sent out by the Alabama Democratic State Campaign Committee in the fall of 1901. Inside were letters urging the faithful to use their influence in the election scheduled for Nov. 11 of that year.

The time had come for Alabamians to vote on the constitution that 155 delegates, mostly Democrats, had written that summer. Now, the party wanted the constitution ratified, and it was doing everything in its power to see that it was done.

The constitution reflected the uncertainties of the time, and many Democrats believed that their survival as a party and a people depended on its approval. Since the Civil War, they had struggled against what must have seemed an almost endless string of enemies and obstacles. Now, victory was close. But so was defeat.

To understand who these Democrats were and why the constitution was so important to them, you have to go back to the years immediately following the Civil War. During Reconstruction, a coalition of Alabama Unionists and anti-secessionists, free blacks and some key Northern transplants united under the Republican banner. They overwhelmed their opposition, many of whom were disfranchised ex-Confederates, and took control of the state. Then they wrote, and in 1868 they ratified, a constitution that gave them the authority to govern Alabama as they wished.

But Republican rule was short-lived. Conflicting ambitions divided the party, and revitalized Democrats soon struck back. Branding native Alabama Republicans as "scalawags," condemning outsiders as "carpetbaggers" and issuing dire warnings about "black rule," Democrats offered themselves as true Southerners who would end corruption in Montgomery, put the debt-ridden state on sound financial footing and restore the white man to power.

When these promises did not sway voters, fraud, intimidation and violence did. By the mid-1870's, the Democrats were in power and Alabama was "redeemed."

The victors were the "Bourbons," men of property and status who felt they had suffered under Republican rule and who wanted to be sure that they would not suffer again.

Once in office, they did what the Republicans had done. In 1875, they confirmed their victory and secured their power with their own constitution.

Among their many goals was to keep Bourbon money in Bourbon pockets. They limited the state's taxing power, abolished boards and offices created by the Republicans (including the board of education), allowed the state debt to be settled in ways still not fully understood today, and prohibited state support for projects such as river improvement and railroad construction.

The Bourbon constitution of 1875 was a victory for prosperous rural and small-town Alabamians who did not want to pay taxes to improve the lives of those less fortunate than themselves and who did not want to finance commercial development that did not benefit them directly. In particular, it was a victory for planters and merchants who dominated the Black Belt economy and government and who expected to maintain that domination (along with their influence on the state level) by controlling the black vote in their region.

In the years that followed, it seemed that the constitution of 1875 had accomplished just what the Bourbon Democrats intended. Although these were not the best of times for the cotton economy, politically powerful, propertied Alabamians generally fared well, and their hold on state government seemed secure.

But there was opposition. Some circles blamed the absence of industrial progress on the prohibition of state aid for transportation projects. Educators denounced the low tax ceilings that kept schools poor. Reformers decried the lack of government services for people.

Legislative watchdogs noted that the people's representatives devoted far more time to local and private bills than they did to matters that affected the state as a whole.

These critics, however, were no real threat to Bourbon control. The real threat came from another quarter.

While planters and merchants were doing well enough, times were not good for Alabama's small farmers. Postwar taxes, a nationwide financial panic in the 1870's, high interest rates and general decline in cotton prices drove many once-independent yeomen off their land and into sharecropping and tenant farming, where landless blacks were already.

Even those who held on to their farms struggled to survive, and when old solutions such as hard work and increased yield only drove prices lower, they began to look elsewhere for help.

What many found was the Farmers' Alliance.

Originating in Texas, the Alliance reached Alabama by the 1880's and was growing rapidly. At first, it focused on education and economic cooperation. It stayed out of politics, and its members seemed content to work within the Democratic Party to improve their lot.

But Bourbon planters and merchants were hardly sympathetic to Alliance ideas, such as farmers' cooperatives, that would reduce the power of the middle man in cotton commerce or to suggestions that the state should intervene on the farmer's behalf with debt relief. The Democratic Party might help the farmer, but the Bourbon Democrats who controlled the party would not.

So Alabama farmers sought and found a champion - Commissioner of Agriculture Reuben F. Kolb, who had gained fame and fortune developing the "Kolb Gem" watermelon.

Though of the planter class, Kolb emerged as a powerful spokesman for farmer interests. Like the farmers who rallied to him, Kolb hoped to work for reform within the Democratic Party. But as Bourbon opposition grew, so too did rumors of rebellion within the party.

What Bourbons heard, or at least thought they heard, was that white Alliancemen might join members from the Colored Alliance in a coalition that could dominate the party and state. Such an arrangement might encourage black voters in the Black Belt to defy planter authority and take control of county governments. Once in power, Alabama's new leaders would find it only natural to confirm their authority with a new constitution, a document the Bourbons feared would be anything but favorable to their interests.

Frightened at this prospect, Bourbons reminded potential defectors that the "only place for a white man was the Democratic Party," and raised the specter of "black rule" if a third party was formed. It seemed to work.

In 1890, Kolb sought the Democratic nomination for governor, but lost to the conservative candidate, Thomas G. Jones. Accepting defeat, Kolb and his followers campaigned loyally for the party's choice and the party's choice won easily.

But Alliance-endorsed candidates captured a majority of seats in the Alabama House, and emerged from the election as an influential minority in the Senate. Everyone knew that the contest for governor in 1892 would be critical for Bourbons and Alliancemen alike.

Though it was custom for a governor to be given his party's nomination for a second term, Kolb went against tradition and challenged Jones in 1892. But the Bourbons controlled the state.

Democratic Executive Committee, which decided which delegates would be seated at the convention. To no one's surprise, the majority of the approved delegates were Jones supporters.

Kolb's outnumbered forces tried without success to get some reforms adopted, including a primary to nominate candidates. Frustrated, they left the convention and met as the "Jefferson Democrats."

The defectors naturally nominated Kolb, who excited his supporters (and terrified the Bourbons) with an acceptance speech that promised prison reform, advocated "better schools and better roads," and called for the election of legislators who "would secure a fair ballot and an honest count."

That last pledge was not well received among the Bourbons. With the white Democrats split, they knew that the black vote was the key to victory. They also knew that if black voters were allowed to cast their ballots without interference, Kolb and the "Jeffersonian Democrats" could well carry the day.

The stage was set for one of the most bitterly contested and corruptly decided elections in Alabama history.

In some counties, the black vote was free, and both parties campaigned for it. Things were different in the Black Belt. Realizing that victory for the "white man's party" depended on the black vote, Black Belt Democrats used fraud and intimidation to bring in huge majorities for Jones. The Black Belt delivered the Democrats a margin of more than 30,000 over the Jeffersonians. Statewide, Jones won by less than 12,000 votes. Fifteen Black Belt counties gave him the victory. With no constitutional or legislative means to challenge the election, Kolb had no choice but to accept defeat.

But the Bourbons wanted to be sure that Alliance supporters would not return to fight another day. The following year, conservatives passed an election law that complicated the voter registration process and increased the power of local election officials to determine who was qualified to cast a ballot. The provision that registration would take place only in May, one of the busiest months in the farmer's year, underscored just what the Bourbons intended. It was the beginning of a Bourbon campaign to take the ballot out of the hands of those who threatened Bourbon rule.

It worked. Throughout the state, voter rolls shrank as poor farmers, white and black, failed to register.

Not all Bourbons were comfortable with this. Black Belt planters wanted to keep black voters registered so they might have those votes to use as they wished. Any effort to disfranchise black voters threatened their power. They also feared that a decline in registered voters would lead to the reapportionment of the Legislature and that Black Belt influence would be reduced even further.

So it is not surprising that when Bourbons began talking of a new constitution that would disfranchise black voters and guarantee that no black-white coalition would defeat the Democrats, Black Belt leaders were less than enthusiastic. Outside the Black Belt, conservative Democrats had concluded that "honest elections" (elections they could win) were possible only if "corruptible voters" (those who might someday vote against them) were removed from the rolls.

They were not troubled by the fact that they seemed to be saying that the best way to keep the white man from stealing the black man's vote was to take the black man's vote away from him. Bourbon Democrats knew what they wanted to do, and intended to do it.

There were obstacles, however.

Black Belt leaders still had to be convinced that their political power would not diminish with black disfranchisement. They also had to be assured that their representation in the Legislature would not be reduced and that state government would not interfere with the way they handled local affairs.

Moreover, voter restrictions had to apply to whites as well as blacks or the constitution would violate the 15th Amendment, which prohibited denying the right to vote on the basis of race. This did not bother many Bourbons, who were as fearful of the white-farmer vote as they were of the black.

The problem was that any new constitution would have to be approved by the voters, and it was unlikely that poor whites would vote to give up their vote. Somehow, white farmers had to be convinced that these restrictions would not apply to them.

As the pressure for a new constitution mounted, deals were made and compromises struck. White Alliancemen were told their vote would be protected. Black Belt leaders were assured that their position was secure.

Meanwhile, Bourbons in other sections of the state, especially the rapidly developing industrial region around Jefferson County, rallied to the cause. In November of 1900, the Legislature overwhelmingly called for a statewide vote to put the issue to the people.

On April 23, 1901, Alabamians voted 70,305 to 45,505 in favor of a convention to write a new constitution, and they selected delegates to do the job. Opposition came mostly from the hill counties of the north and the wiregrass region of the southeast - Alliance strongholds where small farmers held sway.

The Black Belt turned out in force for the Bourbon cause. Blacks voted, or were voted, in numbers that even caught the seasoned observers by surprise. In Lowndes County, where black voters held a 5 to 1 advantage over whites, 3,226 votes were cast for the convention and only 338 against it. In Dallas, Green, Perry, Hale, Sumter, and Marengo counties, returns were much the same.

The convention met in May and went to work. Controlled by a coalition of Black Belt planters and industrial interests, it resolutely moved to guarantee suffrage to "the intelligent and the virtuous" voter and deny it to the rest. Residence restrictions, literacy requirements, the poll tax and property qualifications were written into the document, as were stipulations that potential voters had to be engaged in a lawful business and could not have been convicted of one of a long list of crimes, many of which (such as vagrancy) were frequently charged against blacks.

Poor whites who might have been disqualified were allowed to slip through if they or an ancestor had served in the military (the "grandfather clause") or, failing that, if they were of "good character" and understood "the duties of citizenship in a republican form of government" - qualifications that black Alabamians at the whim of white election officials had little hope of meeting.

African-Americans were well aware of what was being done. Booker T. Washington led a group that petitioned the delegates for "some humble share" in choosing who would govern them. But the matter had been decided.

Black disfranchisement took up much of the convention's time and was the subject of considerable debate, but it was not the only issue. Determined to preserve a status quo under which they had prospered, Bourbons refused to raise the tax ceiling to provide more funds for state and local governments and did not lift restrictions on state support for internal improvements. Counties could use local funds to build roads, bridges and public buildings, but limits placed on what they could borrow made such projects difficult to carry out.

Put simply, state and local governments would remain starved for revenue, and the service they provided, especially in education, would be underfunded for the foreseeable future.

Delegates also addressed what some observers called "the evils of local legislation." For some time, it had been recognized that the Legislature spent so much time on local bills that subjects of statewide interest were often neglected. The Mobile /Register/ even went so far as to suggest that "it would be less expensive and far less dangerous to have each county of the state make the laws for its own government."

Since ratification of the constitution of 1875, the Legislature had enacted 20 times as many local as general laws. Because vote-swapping and backroom deals were the rule in passing local bills, some reformers considered this issue second in importance only to the question of suffrage.

But rather than grant the counties increased home rule, Bourbons kept local matters in the hands of the Legislature. It was a decision that would eventually lead to hundreds of amendments of the document they were writing and make Alabama's constitution the longest in America.

Once written, it had to be ratified. Under the banner of "White Supremacy, Honest Elections and the New Constitution," the Democrats rallied their forces. Opposition came from those who saw that, in time, suffrage restrictions would be applied to poor whites as well as to blacks. But opponents seemed to know that no matter how many votes their side received, the Black Belt would deliver more.

They were right.

The constitution was ratified 108,613 to 81,734 - a majority of 26,879. Outside the Black Belt, the constitution lost, but in the plantation counties, ratification got the votes to turn the tide.

In Dallas, Hale and Wilcox counties alone, 17,475 votes were cast for the constitution and only 508 against it - all the more remarkable because the total white-male voting population of these counties was 5,623.

The Bourbons stole the election and just about everyone knew it. But there was nothing the anti-ratificationists could do; no appeal they could make. The Bourbon Democrats had won, and in winning, they had created a system that would protect their power and prosperity.

As a leading historian recently noted, under this new government, "the rich, barring their own failure, would stay rich and the vast majority of poor Alabamians would stay poor," with little hope that a sympathetic state could help them in their plight.

The Bourbons had also written the most rigid constitution in Alabama's history. Before the convention gathered, one state newspaper urged the delegates to draft a document with "room to grow in." They did just the opposite. What the delegates produced was more like a code of laws than a constitution, and the effect was to prevent change rather than promote it. But that was what the Bourbons wanted.

And so the constitution of 1901 became Alabama's constitution.

It still is.

Florida And Alabama
Jury Sentencing Schemes

Similarities
*Florida*	*Alabama*
- Jury override (court ruled that judges are given too much power)	- Jury override
- Jury verdict is only advisory to the judge and only a recommendation of sentence	- Jury verdict is only advisory to the judge and only a recommendation of sentence
- Judge reweigh the aggravators and mitigators	- Judge reweigh the aggravators and mitigators
- Judge is final fact finder of aggravators/mitigators	- Judge is final fact finder of aggravators/mitigators

Differences
*Florida*	*Alabama*
In Florida, upon conviction, the defendant is not automatically eligible for the death penalty. In order for the defendant to become eligible for death, the jury in the penalty phase must find the existence of aggravating factors to impose such eligibility.	In Alabama, upon conviction, a defendant is automatically eligible to be sentenced to death. So, in the sentencing phase of the trial, the jury doesn’t have to find any additional aggravating factors to make such a defendant eligible for death. This is so in Alabama, because the underlying felon, in which makes a murder capital is deemed to be already found upon conviction.

The Beast That The System Created
And The Hurst Decision

The constitutional amendment at issue is the 6^th amendment to the
United States Constitution.

Which states: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of his defense.

The underlined portion of the 6^th amendment of the United States Constitution was, and has been being violated by states of the union for years. And now the United States Supreme Court has spoken out against those states. Overruling cases in which the court once upheld the very same practice that it now condemns.

Hurst v. Florida is a case that arose out of the State of Florida, which made its way up to the United States Supreme Court, so that that court may consider whether or not Florida’s capital sentencing scheme violates the 6^th amendment in light of Ring v. Arizona. [575 U.S. … (2015)]

The United States Supreme Court did in fact agree to hear the case and the ruling (opinion) from their review was recently released on January 12^th, 2016.

Timothy Hurst was convicted of murdering his co-worker. First degree murder. After the culpability phase of Hurst’s trial, the penalty phase of the trial commenced. Both the state and defense gave opening and closing statements. The state (prosecution) presented aggravating circumstances and the defense (Hurst’s attorneys) presented mitigating circumstances.

Aggravating circumstances:

(1) A fact or situation that increases the degree of liability or culpability for a criminal act.

(2) A fact or situation that relates to a criminal offense or defendant and that is considered by the court in imposing punishment.

Mitigating circumstances:

(1) A fact or situation that does not justify or excuse a wrongful act or offense but that reduces the degree of culpability and thus may reduce the damages (in civil cases) or the punishment (in criminal cases).

(2) A fact or situation that does not bear on the question of a defendant’s guilt, but that is considered by the court in imposing punishment and esp. in lessening the severity of a sentence

However, in the State of Florida, a jury determination of sentence is only a recommendation to the court. After deliberation, the jury returned a 7-5 verdict, recommending that Hurst be sentenced to death.

After the penalty phase of Hurst’s trial the judge held a separate hearing to determine whether sufficient aggravating circumstances existed to justify the imposition of the death penalty. After finding that necessary aggravators existed to justify the death penalty the judge sentenced Hurst to death.

Hurst appealed his case to the higher courts (state/federal) in Florida to no avail, until he did so to the United States Supreme court.

Florida’s Law

First-degree murder is a capital felony in Florida. See Fla. Stat. §782.(4(1)(a))(2010)

Under Fla. state law, the maximum sentence a capital felon may receive on the basis of the conviction alone is life imprisonment. §775.082(1)
A person who has been convicted of a capital felony shall be punished by death only if an additional sentencing proceeding that results in findings by the court that such person shall be punished by death. §775.082(1)
Otherwise, such person shall be punished by life imprisonment and shall be ineligible for parole.
In that proceeding, the sentencing judge first conducts an evidentiary hearing before a jury. §921.141(1)
Next, the jury, by majority vote, renders an “advisory sentence”. §921.141(1)
Notwithstanding the recommendation, the court must independently find and weigh the aggravating and mitigating circumstances before entering a sentence of life or death. §921.141(3)

On Appeal

The Florida Supreme Court affirmed Hurst’s conviction and death sentence, while rejecting Hurst’s argument that his sentence violated the 6th amendment in light of Ring v. Arizona, 536 U.S. 584, in which the United States Supreme Court found unconstitutional an Arizona capital sentencing scheme that permitted a judge rather than the jury to find the facts necessary to sentence a defendant to death.

The United States Supreme Court’s Decision

Florida’s capital sentencing scheme violates the 6th amendment in light of Ring.
(A) Any fact that “exposes the defendant to a greater punishment than that authorized by the jury’s guilty verdict” is an “element that must be submitted to a jury.” Apprendi v. New Jersey, 530 U.S. 466;494. Applying Apprendi to the capital punishment context, the Ring Court had little difficulty concluding that “an Arizona judge’s independent fact-finding exposed Ring to a punishment greater than the jury’s guilty verdict authorized.” 536 U.S. at 604
Ring’s analysis apprise equally here. “Florida requires not the jury but a judge to make the critical findings necessary to impose the death penalty.”
“That Florida provides an advisory jury is immaterial.”
See Walton v. Arizona 497 U.S. 639, 648
As with Ring, Hurst had the maximum authorized punishment he could receive increased by a judge’s own fact-finding.

The United States Supreme Court went on to reject one of a few of the State of Florida’s arguments in support of Hurst’s death sentence which was:

The jury’s recommendation necessarily included an aggravating circumstance finding.
In rejecting this argument by Florida’s attorneys, the United States Supreme Court stated: “Florida fails to appreciate the judge’s central and singular role under Florida’s law, which makes the court’s findings necessary to impose death and makes the jury’s function advisory only.”

United States Supreme Court Earlier Holdings

Hildwin v. Florida, 490 U.S. 638
Spaziano v. Florida, 468 U.S. 447
In those earlier precedent cases, the United States Supreme Court concluded that: “the 6^th amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.” Hildwin, 490 U.S., at 640-641
Concerning these cases and portions of their holdings, the United States Supreme court held: Time and subsequent cases have washed away the logic of Spaziano and Hildwin. These decisions are overruled to the extent that they allow a sentencing judge to find an aggravating circumstance, independent of a jury’s fact-finding, that is necessary for imposition of the death penalty.

The United States Supreme Court’s Conclusion

The 6^th amendment protects a defendant’s right to an impartial jury. This right required Florida to based Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s fact-finding. Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.
The court in its opinion is not saying that Timothy Hurst can no longer be sentenced to death, nor that the jury’s verdict (in any event) has to be unanimous for death.
However, the court in this opinion is saying that Timothy Hurst can be sentenced to death again, but instead of the judge being the sole fact-finder of whether or not the aggravating circumstances exist to support the death sentence, the jury shall be the sole/only fact-finder of such.
The role of the judge in the process of sentencing the defendant to death was what made Florida’s sentencing scheme unconstitutional.

Does this ruling affect Cases in Alabama? If so, how?

Yes. First allow me to specify the statue that it affect in Alabama.

§13A-5-46 Sentence hearing – Conducted before jury unless waived; trial jury to sit unless impossible or impracticable; separation of jury; instructions to jury; advisory verdicts; vote required; mistrial, waiver of right to advisory verdict.

(a) Unless both parties with the consent of the court waive the right to have the sentence hearing conducted before a jury as provided in section 13A-S-44(c), it shall be conducted before a jury which shall return an advisory verdict as provided by subsection € of this section. If both parties with the consent of the court waive the right to have the hearing conducted before a jury, the trial judge shall proceed to determine sentence without an advisory verdict from a jury. Otherwise, the hearing shall be conducted before a jury as provided in the remaining subsections of this sections.

(b) If the defendant was tried and convicted by a jury, the sentence hearing shall be conducted before that same jury unless it is impossible or impracticable to do so. If it is impossible or impracticable for the trial jury to sit at the sentence hearing, or if the case on appeal is remanded for a new sentence hearing before a jury, a new jury shall be impanelled to sit at the sentence hearing. The selection of that jury shall be according to the laws and rules governing the selection of a jury for the trial of a capital case.

(c) The separation of the jury during the pendency of the sentence hearing, and if the sentence hearing is before the same jury which convicted the defendant, the separation of the jury during the time between the guilty verdict and the beginning of the sentence hearing; shall be governed by the law and court rules applicable to the separation of the jury during the trial of a capital case.

(d) After hearing the evidence and the arguments of both parties at the sentence hearing, the jury shall be instructed on its function and on the relevant law by the trial judge. The jury shall then retire to deliberate concerning the advisory verdict it is to return.

(e) After deliberation, the jury shall return an advisory verdict as follows:

(1) If the jury determines that no aggravating circumstances as defined in section 13A-f-49 exist, it shall return an advisory verdict recommending to the trial court that the penalty be life imprisonment without parole.

(2) If the jury determines that one or more aggravating circumstances as defined in section 13A-5-49 exist but do not outweigh the mitigating circumstances, it shall return an advisory verdict recommending to the trial court that the penalty be life imprisonment without parole.

(3) If the jury determines that one or more aggravating circumstances as defined in section 13A-5-49 exist and that they outweigh the mitigating circumstances, if any, it shall return an advisory verdict recommending to the trial court that the penalty be death.

(f) The decision of the jury to return an advisory verdict recommending a sentence of life imprisonment without parole must be based on a vote of a majority of the jurors. The decision of the jury to recommend a sentence of death must be based on a vote of at least 10 jurors. The verdict of the jury must be in writing and must specify the vote.

(g) If the jury is unable to reach an advisory verdict recommending a sentence, or for other manifest necessity, the trial court may declare a mistrial of the sentence hearing. Such a mistrial shall not affect the conviction. After such a mistrial or mistrials another sentence hearing shall be conducted before another jury selected according to the laws and rules governing the selection of a jury for the trial of a capital case. Provided, however, that, subject to the provisions of section 13A-5-44©, after one or more mistrials both parties with the consent of the court may waive the right to have an advisory verdict from a jury, in which event the issue of sentence shall be submitted to the trial court without a recommendation from a jury. (Acts 1981, No. 81-178, p. 203, §8)

§13A-5-47 Determination of sentence by court; pre-sentence investigation report; presentation of arguments on aggravating and mitigating circumstances; court to enter written findings; court not bound by sentence recommended by jury.

(a) After the sentence hearing has been conducted, and after the jury has returned an advisory verdict, or after such a verdict has been waived as provided in section 13A-5-46(a) or section 13A-5-46(g), the trial court shall proceed to determine the sentence.

(b) Before making the sentence determination, the trial court shall order and receive a written pre-sentence investigation report. The report shall contain the information prescribed by law or court rule for felony cases generally and any additional information specified by the trial court. No part of the report shall be kept confidential, and the parties shall have the right to respond to it and to present evidence to the court about any part of the report which is subject of factual dispute. The report and any evidence submitted in connection with it shall be made part of the record in the case.

(c) Before imposing sentence the trial court shall permit the parties to present arguments concerning the existence of aggravating and mitigating circumstances and the proper sentence to be imposed in the case. The order of the arguments shall be the same as at the trial of a case.

(d) Based upon the evidence presented at trial, the evidence presented during the sentence hearing, and the pre-sentence investigation report and any evidence submitted in connection with it, the trial court shall enter specific written findings concerning the existence or non-existence of each aggravating circumstance enumerated in section 13A-5-49, each mitigating circumstance enumerated in section 13A-5-51, and any additional mitigating circumstance offered pursuant to section 13A-5-52. The trial court shall also enter written findings of facts summarizing the crime and the defendant’s participation in it.

(e) In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist, and in doing so, the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict has been waived pursuant to section 13A-5-46(a) or 13A-5-46(g). While the jury’s recommendation concerning sentence shall be given consideration, it is not binding upon the court. (Acts 1981, No. 81-178, p. 203 §9)

The difference between Alabama and Florida’s sentencing scheme is this:

In Alabama, upon conviction, a defendant is automatically eligible to be sentenced to death. So, in the sentencing phase of the trial, the jury doesn’t have to find any additional aggravating circumstance(s) to make such of a defendant eligible for death.
This is so in Alabama because the underlying felon, in which makes a murder capital is deemed to be already found upon conviction.
In Florida, upon conviction, the defendant is not automatically eligible for the death penalty. In order for the defendant to become eligible for death, the jury in the penalty phase must find the existence of aggravating factors to suppose such an eligibility.

Florida and Alabama are the same in respects to:

(1) The jury’s verdict in the penalty phase is only advisory to the judge, only a recommendation of the sentence later to be determined.

(2) The judge involvement in the process of reweighing the aggravating and mitigating circumstances,

make written fact-findings of what aggravators and mitigators that exist

and imposing sentence after considering additional evidence.

The United States Supreme Court has deemed such practices and participation of the judge in the sentencing process unconstitutional, while rejecting the Florida’s State’s attorney argument that the jury’s recommendation necessarily includes the fining of aggravation circumstance. Alabama uses same argument about the inclusion of an aggravator upon the jury’s finding in sentencing phase of trial.

However, like in Florida, in Alabama a defendant has no way of knowing what aggravators or mitigators were rejected or found by the jury.

The foundation of the Hurst decision is

Ring v. Arizona

In Ring v. Arizona, 539 U.S. 584 (2002), the United States Supreme Court held that a capital defendant is “entitled to a jury determination of any fact in which the legislature conditions an increase in the maximum punishment.” Id. at 589.

As Ring relates to Alabama, in light of Ring, a death sentence may not be imposed unless the jury has found unanimously and beyond a reasonable doubt that

(1) statutory aggravating circumstances exist, and

(2) the aggravating circumstances outweigh the mitigating circumstances.

Ala. Code 13A-5-46€ (1975); ex parte Woodward, 631 So. 2d 1665, 1671 (Ala. 1993)

In most cases in Alabama, the jury never make either or the required fact-finings for a death sentence in this case.

In Alabama, the jury receives verdict forms that do not allow the jury to express which aggravating factors it finds, or whether they were found unanimously and beyond a reasonable doubt, there is no way for a defendant to determine whether there was a basis for a death sentence in such cases. See ex parte McGoiff 908 So. 2d 1024, 1039 (Ala. 2004) (proposal forms.

Closing

The Hurst case has provided a window of light to the brothers of life row in states with the death penalty whose sentencing scheme is such as that which the United States Supreme Court has now condemned.

Please read the opinion of the Court for any additional inquiry.

Randy Lewis

Alabama vs. Florida

Alabama and Florida have a lot of similarities and some differences. The two states share a border. They also share the Gulf of Mexico. They both are located in the Deep South with a love of college football. Both of their legal systems were crafted with similar ideals and schemes. Often times each point to the other when referencing high profile cases.

In June 2002 the United States Supreme Court ruled in favor of Timothy S. Ring that Arizona in allowing sentencing from a judge without jury to find aggravating circumstance necessary for imposition of the death penalty held to violate rights to a jury trial upon the Federal Constitution’s sixth amendment. Alabama, as well as Florida, had very similar sentencing schemes, yet both chose to ignore the highest court in the land’s ruling. Each state continued to allow judges rather than juries to impose the highest form of punishment, the death penalty.

In January 2016, the United States Supreme Court in light of Ring v. Arizona ruled that Florida’s capital sentencing scheme violates the sixth amendment. Timothy Hurst was convicted in 1998 of first degree murder under Florida law, the maximum sentence a capital felon may receive on the basis of conviction alone is life imprisonment. Mr. Hurst, was convicted by a jury and the jury gave a recommendation of death, the judge found the facts necessary to sentence Mr. Hurst do death. Which in light of Ring v. Arizona violated his sixth amendment. So, the United States Supreme Court yet again struck down a sentencing scheme in capital cases and each one was a mirror to Alabama’s capital sentencing scheme.

Alabama and Florida share so many similarities, yet so many differences. Florida has now made changes to their sentencing scheme. However, the new one in place has been also ruled unconstitutional by the Florida Supreme Court. Alabama has once again taken a stance against the United States Supreme Court by saying that their sentencing scheme in no way, shape or form mirrors Florida’s. It was only fourteen years ago that Alabama used Florida as an ally in saying that their sentencing schemes are not similar to Arizona’s. Alabama and Florida, now is the time to fix your sentencing schemes according to the law of the sixth amendment. The longer you all wait, the more lives will be taken unconstitutionally. The only way to have a constitutional sentencing scheme in capital cases it so abolish the capital punishment altogether.

I remain

Jeffery Lee

The Caring Christian

Alabama’s Legal Shell Game of Life and Death

Hursting around Dixie land

The Hurst case in Florida is shaking heavy heads all across the Sunshine State and waking nation, while Alabama is hung on riding around enjoying jury overriding, juries with their legal horses, stumping on and hopping over the citizens’ rights under the 6^th amendment. The 6^th amendment gives every citizen a right to be tried by their peers.

Judges in Alabama continue to smack that ruling off the bench and the attorney general, Luther Strange, has made the Hurst ruling (jury override) a stranger in his office.

To jury override in Florida is breaking the law, breaking the law is a crime, a crime that is being continued in Alabama. Federal law applies to all of the states. Alabama should be held to the same standards as all other competent states. We should no longer allow Alabama judges to continue to play the defiant confederate hood card. It is a fact, that if you were charged with murder of a so-called white person, the judge was likely to override the jury to sentence you to death.

It’s 3 shells and those shells are Florida, Alabama, and Delaware. If you are unfortunately under the shell in Alabama you still being illegally shelled under a death sentence shell.

Supreme Court wake up the State of Alabama!

Internal Exiler #33

Implications of Hurst

The Supreme Court ruling in Hurst v. Florida showed that Florida’s capital sentencing scheme violates the 6^th amendment. The issue decided in this case is that it is unconstitutional for a judge to separately determine whether sufficient aggravating circumstances exist to justify imposing a death sentence. And, that the jury’s role must not be limited to a mere recommendation. This recommendation of the jury is known as an advisory verdict, and only three states employ this now unconstitutional scheme – Florida, Alabama and Delaware.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed. Which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Should Alabama, Delaware, and Florida be allowed to continue in this manner? Just remember that whatever you decide, your verdict is advisory only.

This ruling is clear and straightforward, but for the three states involved it is an invalidation of their legal process. So, one would expect them to fight it, but it is not a fight they will win. Yes, there should be a moratorium on executions in these states until they get in line with the current logic of the Supreme Court. Yes, this is going to be a difficult time for defendants, especially in Alabama, where there is no public funded defense for post-conviction review. Yes, this is a pivotal decision with more importance than the states are willing to acknowledge, but not it is not the end of capital punishment.

Capital punishment is what we continue to oppose.

Bart Johnson

Hurst 2.0

Lately, Hurst vs. Florida has been a huge topic. Hurst vs. Florida, has put a spot light on the sentencing schemes of three states (Florida, Alabama, and Delaware) and shows that their capital sentencing schemes violate the 4^th, 6^th, 8^th, and 14^th amendments. Of the three, Florida is the only one to try to make changes. However, the Florida Supreme Court has now ruled those minor changes unconstitutional. In Alabama, the U.S. Supreme Court has ruled in favor of three death row guys (so far) and sent their cases back to the criminal court of appeals with instructions for Alabama to re-examine its death penalty scheme. Alabama, of course, will be as defiant as ever, and the U.S. Supreme Court will have to force them to comply with federal law. In the meantime though, how long will inmates continue to linger under those unconstitutional death sentences?

By: An Angel in the Shadows

Stop Stalling …

This isn’t rocket science, it’s the law!

Arizona, had jury-override, but the case of Ring v. Arizona corrected that injustice. Three states were left practicing this political force (Florida, Alabama, and Delaware). The State of Delaware of its own accord, had pulled back from its judges overriding juries. However, it’s still on their books. Florida recently had its death penalty scheme ruled unconstitutional by the United States Supreme Court in Hurst v. Florida. Which is what brings us here today. See, in ruling Florida’s scheme unconstitutional, the U.S. Supreme Court in fact ruled Alabama’s and Delaware’s schemes unconstitutional. However, Alabama will fight tooth and nails (biting and scratching) to keep its unconstitutional system, and the highest court in the land seems reluctant to enforce its own ruling, and make Alabama and Delaware come into compliance with the law. There’s no question that, Alabama and Delaware have jury override as a part of their death penalty sentencing schemes. This is what the United States Supreme Court said about that in Hurst v. Florida: “The 6^th amendment protects a defendant’s right to an imperial jury. […] This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s fact-finding.” That’s plain, and simple. And, Alabama and Delaware systems are set up to do the exact same things, with Alabama judges overriding juries for more than both Florida, and Delaware. So, why hasn’t Alabama’s death penalty sentencing scheme been ruled unconstitutional, as well as Florida’s??? Well, the answer lays in the amicus brief the Alabama solicitor general filed in the Hurst v. Florida case before the U.S. Supreme Court. In that brief, he plainly state that, “A ruling against Florida’s death penalty sentencing scheme would in fact kill Alabama’s death penalty.” Why would he say that, or even worry about a ruling in the Hurst case, if Alabama doesn’t have the same scheme as Florida, as they keep trying to convince the lower courts and the public? Why even file that brief? When it’s snowing in Colorado, they don’t put on snow suits in Arizona. Why? Because, they know, snow in Colorado isn’t going to affect them! Alabama started putting on their snow suits in anticipation of the Hurst ruling, making it snow justice in Florida. In using a much used southern saying, "a hit dog will holler, every time!”

Still, with all of that being known and said, no justice has been dispersed in Alabama. Why not? Well, because the solicitor general told the U.S. Supreme Court they would be killing Alabama’s death penalty by ruling against Florida. So, now the U.S. Supreme Court is giving Alabama time to get itself sorted out. Instead of doing what’s right. Instead of following the letter of the law, they’re stalling! They’re trying to give Alabama a chance to figure out how to save its death penalty. Instead of doing their jobs and upholding the United States Constitution!

They’re also trying to avoid bogging down the court systems with new sentencing orders. However, none of that should matter, shouldn’t it!? Justice is what should matter! The death penalty sentencing schemes in Florida, Alabama and Delaware are all unconstitutional. The people sentenced to death in those states were done so unconstitutionally, and the sentences they remain under are unconstitutional. So what, some extra hours will have to be put in, in order to correct this injustice. That’s what they all get paid for, to work. Besides, isn’t that what this great nation was founded on, hard work. Or, does not wanting to work allow them to circumvent the constitution?

I’m sure, the American citizens would much prefer a bogged down judicial system, than an unjust one.

Execute Justice, NOT People!

Stop Stalling …

Maximus Strong