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What of 'Harmless Error' in Florida's Death Penalty Cases?

By William Vogeler, Esq. on June 07, 2019

The Florida Supreme Court is poised to let "harmless error" kill death row inmates, says a leading newspaper there.

The Sun Sentinel has criticized the "harmless error" rule in death penalty cases before, but now the issue is back before a reconstituted state supreme court. The editors think the conservative court will pile on "one of the most grotesque compromises in legal history." They say it's macabre that "harmless error" could send people to death row and, predict the Florida court will do it 173 times.

Harmless Error

As we learned in law school, harmless error occurs when a judge makes a mistake in ruling, but one that would not change the result in a case. It's harmless because it's not enough to overturn a judgment. In Florida, the state supreme court is considering whether to retreat or expand on its reliance on harmless error in death penalty cases. It has alarmed anti-death penalty activists, including those in the press. After all, the state has gone too far before.

Three years ago, the U.S. Supreme Court ruled in Hurst v. Florida that Florida's capital-sentencing scheme was unconstitutional. The state allowed juries to render "advisory sentences," while leaving judges to weigh certain factors before entering a life or death sentence. Writing for the majority, Justice Sonia Sotomayor left the harmless error question for the state. "This court normally leaves it to state courts to consider whether an error is harmless, and we see no reason to depart from that pattern here," she said in sending the case back to Florida.

Dead Men Walking

Retroactively, the Florida's supreme court said some prisoners would receive new sentencing hearings -- but not all of them. They would be treated "case by case, in the light of 'harmless error.'"

But unless the court rolls back its precedent, the Sentinel said, 173 prisoners are dead men walking. There's always a chance the U.S. Supreme Court will hear their petition, but the justices there have already signaled that states decide whether an error is harmless.

Whatever the outcome, it is certainly a legal irony that harmless error could be most harmful to the prisoners on Florida's death row.

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