IN JUNE, Justice Stephen Breyer called the entire American system of capital punishment into question. Rather than “try[ing] to patch up the death penalty’s legal wounds one at a time”, he wrote, what is needed is a “full briefing on a more basic question: whether the death penalty violates the constitution.” In the Supreme Court term that began this month, there are a handful of death-penalty cases on the docket, but none will satisfy Justice Breyer’s wish. Each addresses potentially problematic features of a particular state’s scheme of sentencing criminals to death rather than the constitutionality of the punishment itself. On October 13th, in Hurst v Florida, the justices took a close look at the procedures whereby Florida continues to be one of the most enthusiastic killers of criminals in the country. Only Texas, Oklahoma and Virginia have executed more people since 1976.

The case involves Timothy Lee Hurst, a man who was charged with the grisly murder of Cynthia Lee Harrison, his co-worker at a Popeye’s Fried Chicken restaurant, in 1998. Mr Hurst was convicted and sentenced to death, but later he was granted a new trial when he was able to show that his lawyer had provided ineffective counsel in the original proceeding. In 2012, prosecutors contended that Mr Hurst had committed the murder in the course of a robbery and in a particularly heinous manner, two details that are, in the language of the law, “aggravators” required for the imposition of the death penalty. With no aggravating circumstances, Florida law provides that murder is punished with life imprisonment.

The 12-person jury voted seven-to-five to recommend a death sentence, in effect determining that one or both of these aggravating circumstances were found in Mr Hurst’s case. In Florida, the jury’s view is merely an “advisory opinion”; the judge must give the jury’s recommendation “great weight and serious consideration” but he or she gets the final say. These procedures differ from those of other states in two significant ways, Mr Hust argues. First, they put findings of fact in the hands of the judge, rather than the jury, and thereby violate the sixth-amendment guarantee of a trial by jury in criminal cases. Second, by letting a judge, not the jury, impose the death penalty, Florida violates the eighth-amendment proscription against cruel and unusual punishments. Both readings of these constitutional guarantees stem from a 2002 Supreme Court decision, Ring v Arizona.

In Tuesday’s well-argued hearing, the lawyers and justices sparred over how to interpret Ring and how to understand what really happens in Florida’s death-penalty proceedings. Seth Waxman, a former solicitor general who often argues before the court, began by emphasising that Florida is the only state in the union where juries have such a circumscribed role in death-penalty cases. “Under Florida law,” he said, “Timothy Hurst will go to his death despite the fact that a judge, not a jury, made the factual finding that rendered him eligible for death.” This arrangement holds “in Florida and Florida alone.” The Sunshine state is also the only one where juries need not speak in one voice when sentencing criminals to death; “in all other states, it's unanimous”, Mr Waxman noted. “There is no other state that permits anyone to be sentenced for death other than by unanimous determination by the jury. And the state of Florida requires unanimity for shoplifting, just not for death."

The Florida solicitor general, Allen Winsor, countered that Florida’s capital sentencing procedures include plenty of input from the jury. In Mr Hurst's case, he said, “the jury had determined there was one or more aggravating circumstances”. And though judges make the final decision, they do not contravene the jury's recommendations very often. “It's been since 1999,” he said “since any judge actually overrode a life recommendation” and imposed the death penalty instead. Florida’s scheme is actually more protective of defendants than are those of other states, Mr Winsor claimed, saying, “you're not going to have someone's life or death being determined exclusively on the emotions of the jury.”

Mr Winsor gave Florida’s unique capital-punishment regime a spirited and fluid spin. But the justices seemed skeptical, in the end, that it met constitutional muster. In his piercing rebuttal, Mr Waxman drew attention to the black box that is the Florida death-sentencing jury. Since the jurors do not communicate which aggravating factors they based their advisory opinion on, and no formal tally is taken of which jurors found which aggravating circumstances, there is no way to pinpoint the basis of the capital sentence. How, Mr Waxman asked, can the defendant’s constitutional rights “be satisfied when we have no earthly idea what the jury found?”

The justices seem likely to decide that Florida's death-sentencing scheme is unconstitutional. If such a ruling comes to pass, it does not mean that executions will come to a halt in Florida or anywhere else. But reining in the state's capital sentencing procedures would probably put the power of sending criminals to their deaths squarely in the hands of the jurors, as the constitution requires. The day Justice Breyer envisions when executions are invalidated in toto may not be around the corner, but it seems to be getting closer all the time.