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Last January, the U.S. Supreme Court invalidated Florida’s sentencing procedure for capital cases.

In Hurst v. Florida, the high court found that the state’s death penalty scheme violated the Sixth Amendment right to a trial by jury, because it requires the judge instead of the jury to make the final decision on whether to sentence a defendant to death. But the Supreme Court did not say whether its ruling was retroactive.

Last month, the state Supreme Court said death sentences issued before 2002 would not be affected by the Hurst ruling, but did apply to inmates sentenced to death after 2002, potentially forcing the state to hold new sentencing hearings for as many as 200 inmates, at the cost of tens, if not hundreds, of millions of dollars. There are 384 people on Florida’s death row.

Florida’s legislature in the meantime changed another aspect of the sentencing law to require that 10 of 12 jurors, instead of a simple majority, sentence a defendant to death.

Then, in November, the Florida Supreme Court ruled that a death sentence had to be handed down by a unanimous jury.

Harvard Law Professor Ron Sullivan, who is a co-founder of the Fair Punishment Project, said the blame for the whole mess lies with the prosecutors. “For decades, Florida’s prosecutors whistled past the graveyard, assuring the legislature, the courts, and their constituents that nothing was wrong with non-unanimous jury verdicts, even though the state remained a national outlier and even as the U.S. Supreme Court cast doubt on the statute’s validity.”

The confusion continued last week when the Florida Supreme Court issued an opinion stating that no capital cases could be prosecuted until the legislature passed a new law requiring the jury’s verdict to be unanimous. But within hours, that opinion was withdrawn.

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