The arguments before the Florida Supreme Court this month exposed the state as an outlier in its use of capital punishment, despite evolving social norms that have moved other states away from this outdated form of punishment. The court, seeking to respond to a recent U.S. Supreme Court opinion that struck down the state's death-sentencing process as unconstitutional, should ensure the death penalty is at least applied fairly. It should commute the sentences of all 390 death row inmates to life in prison, and the state needs to get the message that capital punishment is inherently flawed.

The U.S. Supreme Court, in an 8-1 opinion, ruled in January that Florida's death-sentencing statute was unconstitutional because it vested final authority with judges rather than juries. In response to that ruling, the state Supreme Court heard arguments over whether inmate Timothy Lee Hurst, who was sentenced to die for the 1998 murder of a co-worker in Pensacola, should have his death sentence commuted to life in prison. Hanging in the balance are the lives of every death row inmate whose death sentences came before Florida lawmakers changed the law this year in response to the U.S. Supreme Court's ruling.

The legislative fix was the bare minimum, as lawmakers sought protection to retain the death penalty rather than impose the real checks and balances needed to reduce the arbitrary nature of capital punishment. The new law requires at least 10 of 12 jurors in a capital case to agree on a death sentence, up from a simple majority. In addition, jurors must be unanimous in finding aggravating factors to warrant a death sentence. While these changes give more authority to the jury, they still leave open a window for unfair treatment. And they don't address the cost of death penalty cases, the racial disparities in prosecutions or the errors in witness testimony and forensic science that have driven other states away from imposing the ultimate punishment.

The issue for the court is more narrow: Is it fair to uphold a death sentence when the process used for assigning death was so flawed as to be unconstitutional? Attorney General Pam Bondi wants the original death sentences carried out. She argues the sentencing method was struck down — not the death penalty itself. And she argues that the U.S. Supreme Court's Hurst decision should not be applied retroactively, because the Legislature changed the law in response the court's decision.

But the sentencing process is not some arcane part of the law. It is the foundation of the death penalty statute. And as Hurst's attorney, David Davis, argued to the court: "You cannot separate the punishment from the procedure." Without a sentencing process, he noted, there is no death penalty. Three former justices of the Florida Supreme Court, all appointed by a Democratic governor, filed a brief in the Hurst case urging the court to commute the 390 death cases to life without parole. And last week, a Miami-Dade circuit judge ruled the state's death penalty was still unconstitutional because the recently enacted changes fall short of requiring unanimity among the jurors, adding to the uncertainty of the death penalty in Florida.

The state's high court should recognize the Legislature's fix fails to fully correct the flaws of the past. Carrying out a punishment that was so flawed that the sentencing procedure was abandoned would be fundamentally unfair. The court should reduce all death sentences to life in prison and the state should rethink the usefulness of the death penalty.