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State Attorney Aramis Ayala, of the 9th circuit in Florida, at a press conference on March 16, 2017. (AP) State Attorney Aramis Ayala, of the 9th circuit in Florida, at a press conference on March 16, 2017. (AP)

State Attorney Aramis Ayala, of the 9th circuit in Florida, at a press conference on March 16, 2017. (AP)

Amy Sherman
By Amy Sherman April 6, 2017

Has the U.S. Supreme Court banned all state laws that make executions mandatory for murders?

Florida Sen. Randolph Bracy argues that Gov. Rick Scott overreached when he issued an order removing Orlando-area prosecutor Aramis D. Ayala from a high-profile prosecution of an accused cop killer after she said she would not pursue the death penalty in murder cases.

Bracy, an Orange County Democrat and chairman of the Florida Senate criminal justice committee, wrote in a New York Times op-ed that prosecutors have broad discretionary power.

"Although Ms. Ayala’s critics have denounced her actions as dereliction of duty, they cannot point to a single law or statute that she has violated," he wrote in the April 4 op-ed. "That’s because she hasn’t. There are no federal or state laws that say prosecutors must seek death sentences. And the United States Supreme Court has banned all state laws that make executions mandatory for murders."

Legal experts told PolitiFact that Bracy is correct. Key court rulings about the death penalty forbid laws that force prosecutors to seek the death penalty.

Ayala, a Democrat elected as state attorney state attorney in Orange and Osceola counties in 2016, announced in March that she would no longer seek the death penalty.  Her decision came while handling the case of Markeith Loyd, who is accused of killing Orlando police Lt. Debra Clayton amid a manhunt for Loyd after he allegedly killed his ex-girlfriend.

Laws about death penalty prosecutions

In 1972 in Furman vs. Georgia, the U.S. Supreme Court struck down the death penalty, finding lack of standards in enforcing the death penalty constituted "cruel and unusual punishment." In response, many states then changed their laws. In 1976, the Supreme Court addressed the constitutionality of new death sentencing laws in five cases from Georgia, Florida, Texas,  North Carolina, and Louisiana.

It was in these cases that the court struck down statutes that mandated death sentences while allowing the statutes to stand that required juries or judges to weigh aggravating and mitigating circumstances. Still, some states in the intervening years tried to pass laws that mandated the death penalty.

In 1987, the U.S. Supreme Court found all such laws unconstitutional, the "last vestiges of the mandatory death penalty in the United States," the New York Times explained.

In addition to pointing to the U.S. Supreme Court decisions, Bracy’s legislative assistant Travaris McCurdy also pointed to Florida cases including an argument by Attorney General Pam Bondi in a death penalty appeal case, State vs. Perry. Bondi argued in a 2016 petition to the court that "The Florida Supreme Court has recognized that the State has complete discretion in charging decisions, including the determination to charge and prosecute a capital case."

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(Bondi has called Ayala’s actions a "blatant neglect of duty and a shameful failure to follow the law.")

Due to the U.S. Supreme Court decisions, we have a discretionary system in which prosecutors and juries are supposed to evaluate the use of the death penalty case by case, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty.

And Ayala isn’t doing that, he said.

"For a prosecutor to make a blanket decision to prosecute all cases as capital or none of them is not exercising discretion that is supposed to be part of system," he said. "Prosecutors are supposed to look at each case and decide if it is one of the exceptionally heinous cases that deserve the death penalty."

Spokespersons for Scott and Bondi made some similar points about how prosecutors should evaluate the death penalty case by case.

"Gov. Scott has not said that prosecutors must seek death sentences," Scott spokeswoman Kerri Wyland said. "State Attorney Aramis Ayala was removed from the cases in the interest of justice following her public announcement to not consider capital punishment during her time in office, regardless of the individual facts and circumstances in any case."

On April 3, Scott removed Ayala, a Democrat, from 21 additional first-degree murder cases and reassigned them to Brad King, a Republican Ocala-based state attorney.

Our ruling

Bracy wrote, "There are no federal or state laws that say prosecutors must seek death sentences. And the United States Supreme Court has banned all state laws that make executions mandatory for murders."

Ayala, the Orlando-area prosecutor, has been criticized by some people for refusing to pursue the death penalty in any case. But the U.S. Supreme Court has made it clear for decades that it is unconstitutional to require prosecutors to seek the death penalty in any case.

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"There are no federal or state laws that say prosecutors must seek death sentences. And the United States Supreme Court has banned all state laws that make executions mandatory for murders."
Tuesday, April 4, 2017

Our Sources

New York Times op-ed by Sen. Randolph Bracy, "Florida’s vengeful governor," April 4, 2017

Illinois College of Law professor Wayne LaFave, Criminal procedure, updated December 2015

Death Penalty Information Center, "Death row USA," Summer 2016

Death Penalty Information Center, United States Supreme Court decisions 1972-1996, Accessed April 4, 2017

Journal of Criminal Law and Criminology, "The American Death Penalty decline," Forthcoming in 2017

Letter from legal experts to Gov. Rick Scott, March 20, 2017

Justia U.S. Law, State v. Cain, 1980

Legal Information Institute Cornell law, Furman v. Georgia, 1972

Oyez Chicago-Kent College of Law, Gregg v. Georgia, 1976

Oyez Chicago-Kent College of Law, Jurek v. Texas, 1976

Oyez Chicago-Kent College of Law, Woodson v. North Carolina, 1976

Oyez Chicago-Kent College of Law, Roberts v. Louisiana, 1976

Findlaw, Sumner v. Shuman, 1987

Court of Appeal of Florida Fifth District, State v. Perry, March 16, 2016

Court of Appeal of Florida Fifth District, Emergency Petition for Writ of Prohibition, Feb. 15, 2016

Florida Attorney General Pam Bondi, Statement on Florida Supreme Court Decision in Perry v. State, Feb. 20, 2017

Florida Attorney General Pam Bondi, Tweet, March 16, 2017

New York Times, "Court eliminates mandatory death sentence," June 23, 1987

Orlando Sentinel, "Death penalty debate endures," March 26, 2017

Tampa Bay Times, "21 cases taken from Ayala," April 4, 2017

Tampa Bay Times, "Judicial principle, at odds with law," March 26, 2017

Tampa Bay Times, "Peers rebuke Orlando prosecutor," March 18, 2017

Tampa Bay Times, "Court says murder retrial can proceed," Feb. 21, 2017

PolitiFact Florida, "Florida ACLU says state has 'the most errors and exonerations from death row,'" June 2, 2014

PolitiFact, "3 fact-checks about the death penalty," June 3, 2014

Interview, Travaris McCurdy, Sen. Randolph Bracy legislative assistant, April 4, 2017

Interview, Baylor Johnson, ACLU of Florida spokesman, April 4, 2017

Interview, Marc Mauer, Sentencing Project executive director, April 4, 2017

Interview, Robert Dunham, Death Penalty information Center executive director, April 4, 2017

Interview, Amber Widgery, National Conference of State Legislatures spokeswoman, April 4, 2017

Interview, Kent Scheidegger, Criminal Justice Legal Foundation legal director, April 4, 2017

Interview, Whitney Ray, Attorney General Pam Bondi spokesman, April 5, 2017

Interview, Noel King Piros, Office of the State Attorney 9th Judicial Circuit paralegal, April 5, 2017

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