While Florida may seem to many to be a lawless state where crime is committed without penalty, the state’s justice system occasionally overcompensates and allows judges in trial courts to ignore a jury’s sentence recommendation. In 1998, Timothy Lee Hurst murdered his co-worker at a local Popeye’s as he tried to rob it. The jury in his trial voted to declare him guilty and, along a 7-5 margin, to recommend the death sentence.

Hurst appealed the decision up the judicial ladder on a number of grounds, which ultimately were all rejected by the Florida Supreme Court. Of the three main arguments Hurst contested, this case’s focus is the constitutionality of allowing not solely the jury to find specific aggravators to determine whether the death sentence should be applied, as well as the lack of a unanimous sentencing verdict. Both of Hurst’s arguments finding their base in the Supreme Court’s 2002 decision in Ring v. Arizona. The Florida Supreme Court argues that no Supreme Court decision has overruled Florida’s judicial system and that Ring doesn’t mandate the jury find aggravators or make a unanimous decision. The three dissenting votes at the Florida Supreme Court all disagree. The dissent’s author argues that Ring mandates fact-finding of aggressors to be completed by the jury. Otherwise with a simple majority, the jury could vote to sentence the defendant to death without even agreeing on the factors.[1]

Hurst’s petition heavily cites the Court’s decision in Ring as well as Apprendi v. New Jersey (2000), in which the Court decided that the jury must find the facts that decide whether a defendant will live or die.[2] His petition appeals only the first two parts of the Florida Supreme Court decision, that the court mishandled his mental retardation claim, and that Florida’s non-unanimous jury aggressor- and sentence-finding allowances are unconstitutional.[3]

When the Supreme Court agreed to hear the case, they rephrased the question of the case to be “whether Florida’s death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court’s decision in Ring v. Arizona.” That there was no circuit split and the state Supreme Court argued that a recent Supreme Court precedent, decided when five of the current justices were on the bench, didn’t apply to their state perhaps motivated the Court to take up the case to simply exercise its power. The rephrasing of the question, to specifically reference Ring indicates that this case, and how the Florida model interacts with it, is front-and-center in the case. That, and the sheer scope of the question—referencing both the Sixth and Eighth Amendments—mean that most justices will find something they like in ruling for Hurst. At this point, it’s just a question of who will vote for what reason. There, too, is a bias in the amicus brief filings. While the only brief filed in favor of Florida comes from two states, Alabama and Montana jointly, Hurst is supported by amicus briefs from the American Bar Association, former justices and judges of the Florida Supreme Court and Circuit Courts, and the ACLU.

The most certain votes are Justices Ginsburg and Breyer. Last term, Justice Breyer wrote a strong dissent in Glossip v. Gross, in which he noted that he and Justice Ginsburg both strongly believe that there is a good chance the death penalty outright violates the Eighth Amendment.[4] Justice Breyer’s decision will likely center on the Eighth Amendment and the prevention of cruel and unusual punishment, whether or not for a person with mental disabilities, though he may use that argument in his brief if he wants to appear as less of an “activist.”

Justice Kagan and Sotomayor appear ready to vote for Hurst as well. During oral argument, the two argued heavily against Florida’s case and appeared to ask questions to help Hurst’s lawyer. Much of Florida’s oral argument was interrupted by Sotomayor and Kagan’s questioning and doubt, especially through hypotheticals posed by Kagan, a practice for which she is known.[5]

Justices Roberts and Alito, the two conservative justices not on the Court during Ring, are hard to gauge, but based on oral argument, both seem skeptical of Hurst’s arguments. Roberts argued that no jury determination has to be unanimous or consistent, while Alito questioned Florida’s lawyer whether any of the justices’ hypothetical situations were applicable to this case, to which the lawyer responded that they weren’t.[6] Perhaps not feeling the pressure of aligning with previous decisions and skeptical of Hursts’s position, will rule in favor of Florida.

Last, Justices Scalia and Kennedy. While normally conservative, and certainly in support of the death penalty in the abstract, the two are equally passionate defenders of the Sixth Amendment[7], especially Scalia[8]. It was the Apprendi decision that decided that the Constitution requires juries, rather than judges, to find any facts that would be needed to increase the statutory maximum sentence. Apprendi applies to this case, since sentencing the death penalty requires finding an aggressor and because giving the death sentence is an increase in maximum sentence. This is especially true because Florida’s lawyer admits that under Florida’s system, the judge could toss out the jury’s aggravating factor and substitute his own and issue the death penalty, rendering the defendant eligible for the death penalty not based on the jury’s finding. That element of the Ring case is what drew Kennedy and Scalia into the majority then, and since Arizona’s system then and Florida’s now are quite similar, Kennedy and Scalia will both vote for Hurst.[9] While Scalia expresses doubt in oral argument that deciding a sentence is a unanimity-required part of the trial, Hurst’s lawyer makes clear that the determination of aggravating factors is what’s in question here, which allows for the jury to issue the death penalty.[10] Justice Thomas will likely follow Scalia, as the two, along with Justice Ginsburg, have strong opinions on the Sixth Amendment. [11] Last year, the Supreme Court denied cert in Jones v. United States, in which a jury acquitted a defendant of a crime yet the judge sentenced him for it regardless. In his dissent of the denial, he wrote (and was joined by Thomas and Ginsburg) that a judge is not allowed to replace the jury’s judgment on a finding of a fact.

I believe, ultimately, a majority opinion will be written by Kennedy, will be joined by Scalia, Thomas, Kagan, and Sotomayor. Breyer will file a concurring decision agreeing with the majority and adding that the death penalty is unconstitutional regardless, which Ginsburg will join. Alito will write a dissent and Roberts will join it.

7-2 reversed.

[1] Timothy Lee Hurst vs. State of Florida, SC12-1947 (SC FL 2014), http://www.floridasupremecourt.org/decisions/2014/sc12-1947.pdf.

[2] Apprendi v. New Jersey, 99-478 (530 U.S. 466), https://www.law.cornell.edu/supct/html/99-478.ZS.html.

[3] Timothy Lee Hurst v. State of Florida, Petition for the Writ of Certiorari to the Supreme Court of Florida, http://sblog.s3.amazonaws.com/wp-content/uploads/2015/02/Hurst-Cert-Petition-w-Appendix.pdf.

[4] Rory Little, “As the 2015 Term opens: The Court’s unusual Eighth Amendment focus,” SCOTUSblog, September 21, 2015, http://www.scotusblog.com/2015/09/as-the-2015-term-opens-the-courts-unusual-eighth-amendment-focus/.

[5] Hurst v. Florida, No. 14-7505, Oral Argument, October 13, 2015, http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-7505_4gcj.pdf.

[6] Ibid.

[7] Stephanos Bibas, “Justice Kennedy’s Sixth Amendment Pragmatism,” January 1, 2013, Faculty Scholarship, Paper 456, http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1455&context=faculty_scholarship.

[8] David G. Savage, “Criminal defendants find an unlikely friend in Justice Scalia,” November 24, 2011, Los Angeles Times, http://articles.latimes.com/2011/nov/24/nation/la-na-court-scalia-20111125.

[9] Ibid.

[10] Ibid.

[11] Russell Berman, “An Unlikely Trio Files a Rare Supreme Court Protest,” The Atlantic, October 14, 2014, http://www.theatlantic.com/politics/archive/2014/10/an-unlikely-trio-files-a-rare-supreme-court-protest/381427/.