Prospective Application of Florida’s 8–4 Death‑Recommendation Statute and Rejection of Constitutional Challenges: Commentary on Michael James Jackson v. State (Fla. Dec. 18, 2025)

I. Introduction

The Florida Supreme Court’s decision in Michael James Jackson v. State, No. SC2023‑1298 (Fla. Dec. 18, 2025), is a major capital‑punishment precedent. It is the Court’s first comprehensive merits opinion applying, and upholding, the 2023 amendments to section 921.141, Florida Statutes, which allow a death sentence based on an 8–4 jury recommendation.

The case sits at the intersection of several developments:

the United States Supreme Court’s Sixth Amendment ruling in Hurst v. Florida;
this Court’s broader state‑law expansion (and later retrenchment) in Hurst v. State and State v. Poole;
successive legislative rewrites of Florida’s capital sentencing statute; and
a politically charged reaction to the nonunanimous jury recommendation in the Parkland school‑shooting case.

Against that backdrop, Jackson—mastermind of the 2005 “buried alive” murders of James and Carol Sumner—received Hurst-based relief from his original death sentences (imposed after 8–4 advisory recommendations under the pre‑Hurst 7–5 scheme). His resentencing was delayed until 2023, by which time:

Hurst v. State’s unanimity requirement had been largely receded from in Poole, and
the Legislature had enacted chapter 2023‑23, Laws of Florida (SB 450), authorizing a death sentence upon the recommendation of “eight or more jurors.”

Jackson’s new penalty phase was conducted under the 2023 statute. The jury again returned 8–4 recommendations of death, and the trial court again imposed two death sentences, finding eight powerful aggravators and rejecting most of Jackson’s mitigation as weak. On appeal, Jackson mounted a sweeping attack on:

the constitutionality and retroactive application of the 2023 statute, and
multiple rulings and events in his resentencing proceeding.

The Florida Supreme Court affirmed. In doing so, it:

upheld the 8–4 jury recommendation statute against a battery of federal and state constitutional challenges;
clarified how Florida’s 2019 “prospectivity” statute (§ 775.022) operates with respect to procedural capital‑sentencing changes;
rejected attempts to freeze in place Hurst‑era procedures by res judicata or bill‑of‑attainder theory; and
tightened the standard for reversible error in capital resentencings, particularly where objections were not properly preserved.

Justice Labarga concurred in result but wrote separately to emphasize that, after the 2023 amendments, Florida has the lowest jury‑vote threshold for a death recommendation in the United States, making it “an absolute outlier” among death‑penalty jurisdictions.

II. Summary of the Opinion

A. Factual and Procedural Background

In 2005, Jackson and three co‑defendants (Cole, Wade, and Nixon) robbed, kidnapped, and murdered the Sumners—elderly and in poor health—after exploiting the couple’s hospitality. The group planned the crime days in advance, dug a six‑foot‑deep grave in remote Georgia, bound the Sumners with duct tape, transported them in the trunk of their car, placed them in the hole, and buried them alive. Surveillance video captured Jackson using the victims’ ATM card; he also impersonated James Sumner in calls to the bank and police. Nixon cooperated, revealed the grave, and testified that Jackson “was in charge.”

In 2007 a jury convicted Jackson of two counts of first‑degree murder and related offenses, and returned 8–4 “advisory” recommendations of death under then‑existing § 921.141 (7–5 recommendation sufficed and the judge could override either recommendation). The trial judge imposed death for each murder, finding eight aggravators and little mitigation. This Court affirmed in 2009.

In 2011 postconviction proceedings, Jackson returned to court and:

waived all guilt‑phase challenges, and
affirmatively acknowledged that the crimes were his idea and that he was the leader.

After the Florida Supreme Court’s decision in Hurst v. State (requiring unanimous death recommendations), Jackson obtained Hurst relief in 2017: his death sentences were vacated and a new penalty phase ordered. The State did not appeal.

In 2020, after Poole receded from Hurst’s unanimity requirement, the State sought to cancel Jackson’s resentencing and reinstate his original death sentences. This Court refused, holding in State v. Jackson, 306 So. 3d 936 (Fla. 2020), that once a death sentence has been vacated it cannot be “retroactively reinstated.”

Jackson’s resentencing finally took place in May 2023. By then:

Poole controlled Florida’s interpretation of the Sixth and Eighth Amendments in capital cases, and
the Legislature had enacted the 2023 amendments to § 921.141 authorizing a death sentence if “eight or more jurors” recommend death and requiring a life sentence if fewer than eight jurors do so.

The trial court ruled that the 2023 statute applied to Jackson’s resentencing. The jury:

unanimously found all eight statutory aggravators for each murder beyond a reasonable doubt;
heard extensive mitigation (25 proposed factors, mostly non‑statutory); and
returned 8–4 recommendations of death on each count.

The court again imposed two death sentences, assigning “great” or “very great” weight to each aggravator and little to some weight to most mitigation. It expressly agreed with the jury and concluded that “the aggravating factors heavily outweigh the mitigating circumstances and that death is the only proper penalty.”

B. Issues on Appeal and Holdings

Jackson raised fourteen issues. The Court grouped them into two broad categories:

Challenges to the 2023 amendments and their application — including arguments based on the Eighth, Sixth, and Fourteenth Amendments; equal protection; bill of attainder; res judicata; Florida’s prospectivity statute (§ 775.022); and alleged arbitrariness due to the loss of various “safeguards.”
Alleged errors at the resentencing — including jury‑instruction and Caldwell claims, exclusion of a co‑defendant’s life sentence as mitigation, limits on impeaching a key State witness (Nixon), prosecutorial misconduct, cumulative error, mitigation‑weighting, death‑qualification, and denial of a continuance.

The Court:

rejected all constitutional challenges to the 8–4 statute;
held that applying the 2023 amendments to Jackson’s 2023 resentencing was a prospective application of a procedural statute authorized by § 775.022 and by its own precedent in Love v. State and State v. Fleming;
found that res judicata and bill‑of‑attainder theories do not bar using current law at a de novo resentencing; and
found no preserved, reversible error in the resentencing. It did identify some mistakes—most notably the failure to tell the jury that a life recommendation would bind the judge, and some improper religiously‑tinged remarks by the prosecutor—but deemed them unpreserved and far short of “fundamental error.”

The result: Jackson’s two death sentences were affirmed.

III. Precedents and Authorities: How They Shaped the Decision

A. The Hurst–Poole Line and the Structure of Florida Capital Sentencing

1. Hurst v. Florida (U.S. 2016) and Hurst v. State (Fla. 2016)

In Hurst v. Florida, 577 U.S. 92 (2016), the U.S. Supreme Court held that Florida’s then‑existing capital scheme violated the Sixth Amendment because it required the judge, not the jury, to find the aggravating circumstance necessary for a death sentence. Under Apprendi and Ring, any fact that increases the statutory maximum penalty must be found by a jury beyond a reasonable doubt.

On remand, this Court in Hurst v. State, 202 So. 3d 40 (Fla. 2016), went well beyond the federal holding. It concluded as a matter of federal and state constitutional law that:

the jury must unanimously find each aggravator;
the jury must unanimously find that aggravation is sufficient and outweighs mitigation; and
the jury’s recommendation of death must itself be unanimous.

The Legislature responded in 2016 and 2017 by:

requiring unanimous jury fact‑finding of at least one aggravator (eligibility), and
ultimately requiring a unanimous jury recommendation of death for a judge to impose a death sentence.

2. State v. Poole (Fla. 2020)

In Poole, 297 So. 3d 487 (Fla. 2020), the Court revisited Hurst v. State and receded from most of it. Relying on U.S. Supreme Court precedent, particularly Spaziano v. Florida, 468 U.S. 447 (1984), Poole narrowed the scope of the constitutional jury right in capital cases:

The Sixth Amendment requires only that the jury unanimously find the eligibility fact—the existence of at least one aggravating circumstance.
The “weighing” of aggravation against mitigation is a selection judgment, not a “fact” that must be found by a jury for Apprendi/Hurst purposes.
The Eighth Amendment does not require a jury’s favorable recommendation at all, much less a unanimous one.

Poole thus restored much of Florida’s pre‑Hurst flexibility to have nonunanimous death recommendations and substantial judicial responsibility at sentencing, while still requiring unanimous jury findings of aggravator(s).

In State v. Jackson, 306 So. 3d 936 (Fla. 2020), the Court applied Poole to Jackson’s situation in a specific way: it held that once a death sentence is vacated pursuant to Hurst v. State, it cannot later be “retroactively reinstated” after Poole. Instead, a new penalty phase is required under then‑current law. That principle sets the stage for the 2025 Jackson decision: the resentencing must occur, but the applicable rules at that resentencing are those in effect at that time.

B. Procedural vs. Substantive Changes and Prospectivity: Love and Fleming

A key antecedent for the Court’s treatment of the 2023 statute is Love v. State, 286 So. 3d 177 (Fla. 2019). Love dealt with amendments to the Stand Your Ground immunity statute that shifted the burden of proof at pretrial immunity hearings.

In Love the Court held:

these were procedural changes;
applying them to hearings held after the effective date—even if the crime pre‑dated the amendments—constituted prospective, not retroactive, application; and
“whether a new procedural statute applies in a pending case will generally turn on the posture of the case,” and applying it to future proceedings does not itself make the statute “retrospective.”

The Court also relied on State v. Fleming, 61 So. 3d 399 (Fla. 2011), which framed resentencing as a de novo proceeding at which “the decisional law effective at the time of the resentencing applies.”

Those two cases are central to the Court’s conclusion in Jackson that applying the 2023 capital‑sentencing amendments to a 2023 resentencing for 2005 crimes is a prospective application of procedural law, not an impermissible retroactive change in punishment.

C. Eighth Amendment Baseline: Spaziano, Dobbert, and the “Safeguards” Cases

The Court’s Eighth Amendment analysis is anchored in two long‑standing U.S. Supreme Court precedents:

Spaziano v. Florida, 468 U.S. 447 (1984) — upholding Florida’s former scheme where the judge could override a jury recommendation and emphasizing that the Eighth Amendment does not require a jury recommendation of death at all.
Dobbert v. Florida, 432 U.S. 282 (1977) — rejecting ex post facto and equal protection challenges where a defendant was tried under Florida’s new post‑Furman death‑penalty statute, while others whose death sentences under the pre‑Furman law were automatically commuted to life. The Court held the state could rationally “draw the line” and treat these classes differently.

Within Florida law, the Court relied on a trio of recent decisions to reject arguments that Florida’s capital system is now unconstitutionally arbitrary or overbroad because the Court:

eliminated comparative proportionality review in Lawrence v. State, 308 So. 3d 544 (Fla. 2020);
abandoned relative culpability review in Cruz v. State, 372 So. 3d 1237 (Fla. 2023); and
has recognized concerns about “aggravator creep” but repeatedly rejected attacks on the overbreadth of Florida’s aggravators (Wells v. State, 364 So. 3d 1005 (Fla. 2023); Miller v. State, 379 So. 3d 1109 (Fla. 2023)).

Those decisions collectively underscore the current majority’s view that:

Eighth Amendment “safeguards” beyond the minimum demanded by the U.S. Supreme Court (jury unanimity, comparative proportionality, relative culpability) are not constitutionally required; and
Florida courts will not reinstate those safeguards as a matter of state law absent legislative action.

D. Equal Protection and Death Qualification: Lockhart v. McCree

Jackson’s challenge to “death qualification” as racially discriminatory was foreclosed by Lockhart v. McCree, 476 U.S. 162 (1986), where the Supreme Court explicitly held that:

States may exclude jurors who would automatically vote against the death penalty;
the Sixth Amendment’s fair‑cross‑section requirement applies to venires, not petit juries; and
even if the requirement applied to petit juries, death‑qualification would not violate it.

Jackson’s empirical showing—that death‑qualification in Duval County disproportionately excludes jurors of color—resembles arguments made by Justice Marshall’s dissent in Lockhart rather than binding majority doctrine. The Florida Supreme Court acknowledged the concern but held it was bound by Lockhart.

E. Lockett–Eddings and Mitigation

Jackson invoked Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982), which require that the sentencer:

must allow the defendant to present any aspect of character or record, and any circumstances of the offense, as mitigation; and
may not, as a matter of law, refuse to consider such mitigation.

The Florida Supreme Court, however, drew on its own precedent—especially Trease v. State, 768 So. 2d 1050 (Fla. 2000), and Rogers v. State, 285 So. 3d 872 (Fla. 2019)—to reaffirm that:

a trial court must consider all proffered mitigation, but
it retains discretion to assign “no weight” to a circumstance it deems “not mitigating.”

The Court also noted its 2019 decision in Newberry v. State, 288 So. 3d 1040 (Fla. 2019), which approved sentencing orders that expressly found certain proposed mitigators “established but not mitigating” and assigned them no weight. Jackson extends that logic.

F. Caldwell, Jury Responsibility, and Fundamental Error

Jackson’s most sophisticated jury‑instruction claim relied on Caldwell v. Mississippi, 472 U.S. 320 (1985). Caldwell held that the Eighth Amendment is violated when a jury is affirmatively misled about the nature of its sentencing responsibility—e.g., when prosecutors tell jurors that an appellate court, not they, bears the ultimate responsibility for the death sentence.

The Florida Supreme Court emphasized Justice O’Connor’s concurring opinion in Caldwell, later treated as controlling in Romano v. Oklahoma, 512 U.S. 1 (1994): the constitutional infirmity is:

“that the jury was affirmatively misled regarding its role in the sentencing process.”

In Jackson, the Court acknowledged that the jury should have been told that a life recommendation would be binding on the judge. Standard Jury Instruction 7.11 now expressly does so. But the Court:

found that Jackson had not preserved this distinct theory (his objections were instead to the word “recommendation” itself and to nonunanimity); and
held that the omission did not amount to fundamental error, especially given the instructions emphasizing the gravity of the jury’s task and defense counsel’s own statements that the jury’s decision would be “final.”

G. Equal Protection and Legislative Intent: Ramos and Arlington Heights

Jackson tried to reframe the debate over nonunanimous juries in equal protection terms, invoking:

Ramos v. Louisiana, 590 U.S. 83 (2020), which, in striking down nonunanimous convictions under the Sixth Amendment, highlighted the racist origins of Louisiana’s and Oregon’s nonunanimous jury laws; and
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), which sets out the framework for proving discriminatory intent for equal protection purposes.

The Court distinguished Ramos because it:

dealt with guilt‑phase convictions, not penalty‑phase recommendations;
rested on the Sixth Amendment, not on the Eighth or Fourteenth Amendments; and
did not decide an equal protection claim.

Applying Arlington Heights, the Court held that scattered legislative comments and concerns about the Parkland verdict did not amount to proof that the 2023 amendments were motivated by a racially discriminatory purpose.

IV. The Court’s Legal Reasoning in Detail

A. Constitutionality of the 8–4 Death-Recommendation Statute

1. Eighth Amendment and “Evolving Standards of Decency”

Jackson argued that allowing death sentences based on nonunanimous recommendations violates the Eighth Amendment’s ban on cruel and unusual punishment, especially given contemporary “evolving standards of decency” and Florida’s status as an outlier.

The Court rejected this for two main reasons:

Binding U.S. Supreme Court precedent. Under Spaziano, “the Eighth Amendment does not require a jury’s favorable recommendation before a death penalty can be imposed” (quoted in Poole, 297 So. 3d at 505). If the Eighth Amendment does not require any jury recommendation at all, an 8–4 requirement cannot be unconstitutional on its face.
“Evolving standards” argument is “irrelevant” under current doctrine. Quoting Justice Lawson’s concurrence in Poole, the Court deemed arguments about evolving standards of decency “irrelevant” when a binding U.S. Supreme Court decision sets the constitutional floor. State courts cannot declare that the Eighth Amendment requires more than the U.S. Supreme Court says it does, at least under the Florida Constitution’s “conformity clause” as currently interpreted.

Justice Labarga’s concurrence underscores the policy concern—that Florida now has the lowest threshold in the nation—but acknowledges that the majority’s view is constrained by Poole and the conformity clause.

2. Sixth Amendment Unanimity for Weighing or Recommendation

Jackson advanced several Sixth Amendment arguments:

that the jury must unanimously find that aggravators outweigh mitigation; and
that, even if not required by Hurst v. Florida, the Framers’ understanding of the jury trial right encompassed unanimity in “life and death decisions.”

Both were rejected on the authority of Poole:

Weighing is a “selection” decision, not a fact; therefore it is not subject to Apprendi/Hurst jury‑factfinding rules.
The Sixth Amendment, as interpreted in Spaziano and applied in Poole, does not require any jury recommendation (unanimous or otherwise).

As a result, Florida is free, as a constitutional matter, to require unanimity or not, and to fix the number of votes (currently eight) as a matter of policy, not constitutional necessity.

3. Equal Protection and Disparate Impact

Jackson framed a facial equal protection challenge, asserting that nonunanimity “creates a breeding ground for racial discrimination” and referencing the purported racial composition of his jury and the broader impact on Black communities.

The Court characterized this, generously, as a disparate‑impact claim under Arlington Heights, but held:

Proof of discriminatory intent is required for an equal protection violation; disparate impact alone is not enough.
The legislative record—concerns about the Parkland verdict, criticisms of an “activist” juror, general statements about nonunanimity—did not show a racially discriminatory purpose.
The statute is facially neutral and applies to all capital defendants.

Accordingly, the 8–4 provision does not violate equal protection on a facial basis.

B. Application of the 2023 Amendments to Jackson’s Resentencing

1. Florida’s Prospectivity Statute: § 775.022(3)

Jackson argued that § 775.022(3)—providing that amendments to a “criminal statute” generally operate prospectively and “do not affect or abate” the “prior operation” of the statute—barred applying the 2023 amendments to his resentencing for a 2005 crime.

The Court:

assumed the 2023 amendments are “criminal statutes” under § 775.022(2) and agreed they are procedural in nature;
held that applying them to a penalty phase that occurs after their effective date is, under Love, a prospective rather than retroactive application; and
rejected Jackson’s late‑raised theory that the 2017 version of § 921.141 had “prior operation” in his case sufficient to bar application of the new procedures.

In short: for procedural changes, the relevant question is when the new hearing occurs, not when the crime was committed. Jackson’s 2023 resentencing was governed by the 2023 statute.

2. Res Judicata and the 2017 Hurst Order

Jackson argued that the 2017 order granting him Hurst relief (a new penalty phase under the Hurst‑era unanimity regime) was a “final judgment” that “imposed a duty” on the trial court to conduct his resentencing under Hurst procedures—essentially freezing the law as of 2017.

The Court rejected this:

Res judicata applies between causes of action, not to the governing law in later stages of the same criminal case.
Resentencing is a de novo proceeding; under Fleming, the “decisional law effective at the time of the resentencing applies.”
Intervening changes in law are a classic exception to res judicata (citing Thompson v. Thompson, 93 So. 2d 90 (Fla. 1957)).
This Court’s prior refusal to “reinstate” Jackson’s vacated death sentences after Poole said nothing about what law must govern the new hearing.

3. Bill of Attainder Theory and the SB 450 “Targeting” Claim

Jackson contended that SB 450 was effectively a “bill of attainder” targeting him, pointing to:

legislative debate heavily focused on the Parkland case and nonunanimous recommendations;
text messages between his lead prosecutor and a legislator about whether SB 450 would apply to Jackson’s resentencing; and
the timing of the bill relative to his planned penalty phase.

Under both the U.S. and Florida Constitutions, a bill of attainder is a legislative act that:

applies to named individuals or easily ascertainable members of a group, and
inflicts punishment on them without a judicial trial.

The Court held SB 450 was not a bill of attainder because:

It applies generally to all capital defendants and is a “rule of general applicability,” not a law naming Jackson or any closed class.
It changes only the procedure for imposing death; it does not legislatively find Jackson guilty or impose punishment without a trial.
Any “targeting” theory is undermined by the chronology: the first text from the prosecutor was sent after SB 450 had already passed the Senate and the House companion bill had passed.

The Court distinguished Dugger v. Williams, 593 So. 2d 180 (Fla. 1991), which involved ex post facto concerns and a law that took away a “substantial substantive advantage” existing when the defendant offended. Jackson had no such advantage in 2005, when the statute permitted death based on 7–5 recommendations and full judicial override.

4. Equal Protection “Class of One” and Line Drawing Among Hurst Defendants

Jackson also argued that he was singled out as a “class of one” (Village of Willowbrook v. Olech, 528 U.S. 562 (2000)) because, among fewer than 60 Hurst‑resentencing defendants still awaiting resentencing when SB 450 became law, he is (so far) the only one sentenced to death under the 8–4 statute.

Even assuming the “class of one” framework applies:

Jackson is not similarly situated to defendants whose resentencings occurred earlier under the unanimity statute; timing differences are a classic basis for rational line‑drawing.
Under Dobbert, Florida may apply its current capital procedures to those whose cases are not yet final, even if others received life sentences under an older statute.
There is a rational basis for applying SB 450 to resentencings held after its effective date: uniform application of current procedural rules, and the Legislature’s judgment about appropriate weight to give nonunanimous juries.

C. Challenges to Florida’s Alleged “Lack of Safeguards”

Jackson argued that Florida’s capital scheme is now unconstitutionally arbitrary and capricious because, in his view, safeguards have been systematically stripped away:

comparative proportionality review (Lawrence);
relative culpability review (Cruz);
a unanimity requirement for death recommendations; and
a robust approach to detecting and correcting capital error.

The Court treated this as a facial Eighth Amendment challenge and rejected it based on:

prior holdings in Miller and Wells rejecting similar “safeguards” arguments;
Cruz’s explicit statement that relative culpability review is not constitutionally required; and
the continued requirement of aggravator narrowing, individualized sentencing, and appellate review, which meet the minimal Eighth Amendment standards as articulated by the U.S. Supreme Court.

The Court also strongly rebuffed Jackson’s suggestion that it had ceased to “actively police capital cases for error,” calling for caution by counsel in making such accusations.

D. Alleged Errors at the 2023 Resentencing

1. Jury Instructions and Caldwell

The Court made an important doctrinal and practical clarification regarding jury instructions under the 8–4 statute:

Under § 921.141, a jury recommendation of life is binding; a judge may not override it.
A jury recommendation of death (by 8–4 or more) is not binding; the judge must independently weigh aggravation and mitigation and can, in theory, impose life.

The Court stated that juries should be instructed that:

“If fewer than 8 jurors vote for the death penalty, the Court must sentence the defendant to life in prison without the possibility of parole.”

(language now present in Standard Jury Instruction 7.11)

However:

The defense objection at trial was not to the omission of that explanation, but to the very use of the term “recommendation” and the statute itself under Caldwell.
At one point, defense counsel and the judge both appeared to believe the instructions did tell the jury that a life recommendation was binding.
Defense counsel in closing argument actually told the jurors they could return a life recommendation with five votes and “assure[d]” them that the judge would follow their decision, which “is the final decision,” undermining any claim the jury thought its decision was merely advisory.

Given that background, the Court found:

the specific complaint advanced on appeal (failure to instruct on the binding effect of life) was not preserved;
there was error in not instructing on the binding effect of life, but it was not “fundamental error” because the jury was not affirmatively misled about its role and the instructions repeatedly emphasized the gravity and importance of the jury’s function; and
Jackson’s prejudice theory—that the four life jurors would have “fought longer” for one more vote—is speculative and inconsistent with defense counsel’s admonitions during voir dire not to bully fellow jurors.

2. Exclusion of Co‑Defendant Wade’s Life Sentence as Mitigation

After Hurst relief, co‑defendant Wade—who was 18 at the time of the crime—was resentenced to life, not death. Jackson sought to introduce Wade’s life sentence as a mitigating factor at his own resentencing.

The trial court excluded this evidence. On appeal, Jackson contended this violated the Eighth Amendment under Lockett and Eddings, and Florida’s conceptualization of “nonstatutory mitigation.”

The Supreme Court:

found the federal constitutional argument unpreserved (Jackson had not cited Lockett, Eddings, or the Eighth Amendment below);
noted conflicting authority from other jurisdictions on whether a co‑defendant’s sentence is even properly considered “mitigation”; and
highlighted the risk of a “trial within a trial” about the co‑defendant’s aggravation and mitigation, as well as potential confusion, given that Wade had originally been sentenced to death and obtained life only because of Hurst.

The exclusion was deemed, at most, non‑fundamental error, particularly because Jackson was the admitted mastermind and older co‑leader, and Florida no longer conducts relative‑culpability review on appeal.

3. Limits on Impeaching Nixon with Alleged Recantation

Nixon, the co‑defendant who cooperated and testified in 2007, refused to testify at Jackson’s 2023 resentencing and successfully invoked the Fifth Amendment. His prior testimony was read instead.

At Wade’s 2022 resentencing, Nixon had briefly indicated that his earlier testimony had been influenced by what his lawyer “wanted [him] to say,” then stopped testifying. Jackson sought to introduce this brief recantation to impeach Nixon’s credibility at his own resentencing.

The trial court refused, and defense counsel made no specific constitutional or evidentiary argument in response. The Supreme Court held that:

the issue was not preserved;
any error was not fundamental, given Jackson’s own in‑court admissions that he conceived the crimes and led the group; and
the alleged recantation did not materially undercut the proof of aggravators or bolster any mitigation theory.

4. Prosecutorial Misconduct in Closing Argument

Jackson’s prosecutorial‑misconduct claims fell into two categories:

denigration of mitigation and improper comments about religion; and
emotional and “evil” rhetoric and a purported “golden rule” argument regarding the victims’ suffering.

The Court methodically sorted the comments into:

those met with contemporaneous objection (a handful); and
the remainder, which were unobjected‑to and thus reviewable only for fundamental error.

Key conclusions:

The prosecutor’s broad statement that “mitigation is a biased, paid for industry” was understood as an attack on the bias of defense experts, not an attempt to nullify all mitigation, and was not reversible error.
Comments questioning whether Jackson should “get credit” for remorse and whether his faith was sincere were held to be permissible attempts to rebut mitigation (though the Court noted some rhetoric “approached a line”).
Two remarks about Jackson’s Messianic Jewish faith — calling him a “South Carolina kid that somehow celebrat[es] Passover like he is a religious Jew,” and labeling “Jews for Jesus” “a small fringe religion” — were deemed inappropriate, and the Court pointedly cited the Florida Bar rule forbidding disparagement of parties based on religion. But the Court held these isolated comments did not amount to fundamental error in the context of the entire trial.
Repeated use of “evil,” “soulless darkness,” and similar language was criticized but found consistent with existing case law (e.g., Rigterink, Cruz), especially since it was tied to proof of the “heinous, atrocious, or cruel” (HAC) aggravator and not framed as jurors themselves cooperating with evil if they spared Jackson.
The alleged “golden rule” passage—suggesting that the Sumners, while in the grave, “may have thought about that gun putting two bullets in the back of their heads”—was found to be a permissible inference grounded in the evidence and aimed at HAC, similar to the victim‑suffering arguments upheld in Rogers v. State, 957 So. 2d 538 (Fla. 2007).

Overall, the Court concluded that:

“although the prosecutor may have made questionable comments at times, the comments fall well short—individually or cumulatively—of amounting to fundamental error.”

5. Mitigation Weighting and “No Weight” Factors

The trial court accepted the existence of all 25 proposed mitigating circumstances but assigned no weight to five of them (e.g., Jackson’s mother’s broken promises to visit; lack of psychoeducational evaluation; late‑formed relationship with a sister; desire to teach others about God).

Jackson argued that once a mitigating fact is “established,” the Eighth Amendment and Florida law forbid assigning it zero weight without explanation.

The Court rejected that argument, emphasizing:

Rogers and Newberry, which allow trial courts to find a circumstance “established but not mitigating” and to assign it no weight; and
Eddings requires consideration of mitigating evidence, not that every established fact be deemed mitigating or be given some positive weight.

As long as the court has actually considered the evidence and explained its findings, giving zero weight to a factor does not violate the Eighth Amendment.

6. Death Qualification and Alleged Racial Discrimination

Jackson’s motion to bar death‑qualification was grounded in:

studies showing that death‑qualification in Duval County disproportionately excludes jurors of color, who have higher opposition rates to the death penalty; and
a claim that this denies him a jury “representative of his peers.”

The Court simply applied Lockhart v. McCree and held that:

death qualification is constitutionally permissible;
the fair‑cross‑section requirement does not apply to petit juries; and
even if it did, removing jurors for inability to follow the law on capital punishment is acceptable.

Jackson did not identify any specific juror erroneously excused for cause; thus, his generalized empirical challenge could not succeed under current doctrine.

7. Denial of Continuance

Jackson sought a continuance (or to proceed under the pre‑2023 unanimity law) arguing:

the rapid effective date of SB 450 deprived counsel of time to raise all possible legal challenges; and
the absence of updated standard jury instructions led directly to erroneous instructions and Caldwell violations.

Applying an abuse‑of‑discretion standard, the Court found:

no undue prejudice: counsel in fact raised a wide array of sophisticated statutory and constitutional challenges (res judicata, § 775.022, equal protection, bill of attainder, Eighth Amendment “safeguards,” Caldwell, Sixth Amendment unanimity, evolving standards); and
the only concrete “error” tied to the lack of model instructions—the failure to detail the binding effect of a life recommendation—was not preserved and not fundamental.

V. Simplifying the Key Legal Concepts

A. Eligibility vs. Selection in Capital Sentencing

Eligibility: The phase where the law determines whether a defendant is even legally eligible for the death penalty. In Florida, this requires:
- a conviction for a capital offense, and
- at least one statutory aggravating circumstance found by the jury unanimously beyond a reasonable doubt.
Selection: Once eligible, the jury and judge decide whether death is the appropriate punishment in the particular case. This is where weighing of aggravating and mitigating circumstances happens, and where the jury recommends death or life.

Under Poole and Jackson, the U.S. and Florida Constitutions demand jury unanimity only at the eligibility step (finding an aggravator), not at the selection step (weighing and recommendation).

B. Procedural vs. Substantive Changes and Retroactivity

Substantive changes alter the definition of crimes or increase the punishment attached to past conduct. Applying them to past conduct can violate the Ex Post Facto Clause.
Procedural changes regulate how trials and hearings are conducted (burdens of proof, modes of jury voting, sequencing, etc.). These can generally be applied to future hearings (including resentencings) even for older crimes, because they do not change the maximum punishment authorized when the offense was committed.

The 2023 changes to § 921.141 are procedural in this sense—they govern how the jury and judge reach a sentencing determination, not what the potential penalties are. Therefore, under § 775.022 and Love, they can be applied prospectively to any sentencing proceeding held after their effective date.

C. Fundamental Error vs. Harmless or Unpreserved Error

Preserved error occurs when trial counsel objects with sufficient specificity; appellate courts can then review for “harmless error” (whether the error affected the outcome beyond a reasonable doubt in capital cases).
Unpreserved error is reviewed only for fundamental error — error that “reaches down into the validity of the trial itself” so that the result could not have been obtained without it.

In Jackson, most alleged errors (jury‑instruction nuance, co‑defendant sentence, Nixon impeachment, many prosecutorial comments) were unpreserved and thus judged under the stringent fundamental‑error standard. None met it.

D. Bill of Attainder

A bill of attainder is:

a law that applies to specific individuals or a closed group,
legislatively declares them guilty or otherwise punishes them, and
does so without a judicial trial.

General criminal statutes—even those obviously prompted by a notorious case—are not bills of attainder so long as they:

apply generally to all similarly situated defendants, and
leave guilt and sentencing determinations to the courts.

E. Lockett/Eddings and Mitigation

The capital sentencer (judge and jury) must:

allow the defendant to present any mitigating evidence; and
consider it, rather than excluding it as a matter of law.

But:

the sentencer may conclude that a proven fact (e.g., “mother missed scheduled visits”) does not meaningfully reduce the defendant’s moral culpability, and
may assign it little or no weight, as long as the court has actually listened and explained its reasoning.

F. Death‑Qualification and the Fair‑Cross‑Section Rule

To “death‑qualify” a jury means to remove potential jurors who:

would automatically vote for death, or
would automatically vote against death, regardless of the facts and law.

This is permissible under Lockhart v. McCree. The Sixth Amendment “fair‑cross‑section” requirement ensures that jury venires (the large pools from which juries are selected) reflect a cross‑section of the community. It does not guarantee that the petit jury will statistically mirror the population, especially when jurors are excluded for their inability to follow legal instructions on punishment.

VI. Likely Impact of Jackson on Florida Capital Litigation

A. Cementing the 8–4 Statutory Regime

Jackson is the Court’s first full opinion squarely validating the 2023 8–4 statute against nearly all conceivable constitutional and statutory attacks:

Eighth Amendment (“evolving standards,” arbitrariness, safeguards);
Sixth Amendment (unanimity for weighing and recommendation);
Fourteenth Amendment (equal protection, disparate impact, “class of one”);
State constitutional bills of attainder; and
Florida’s own prospectivity statute (§ 775.022).

Coupled with the companion decision in Hunt v. State, decided the same day, the message is clear: Florida trial courts must apply the 8–4 statute to new capital trials and resentencings held after its effective date, and constitutional challenges to nonunanimous recommendations will not succeed in state court absent a change in U.S. Supreme Court law or Florida constitutional interpretation.

B. Transitional Cases: Hurst Resentencings After 2023

For the remaining pool of Hurst‑resentencing defendants whose original death sentences were vacated under Hurst v. State but whose new penalty phases occur after 2023:

the applicable procedure is the 8–4 statute, not the earlier unanimity requirement; and
arguments that the 2017 Hurst relief order “locked in” unanimity are foreclosed by Jackson and Fleming.

This will likely increase the number of defendants subject to renewed death sentences, as Jackson himself illustrates, and will prevent defense counsel from insisting on unanimity instructions at these resentencings.

C. Jury Instructions Under § 921.141 Going Forward

The Court’s explicit statement that juries should be told that:

a life recommendation is binding on the judge, while a death recommendation is not,

is practically significant. Trial courts now have clear guidance (reinforced by standard instructions) to:

avoid under‑describing the jury’s authority to spare life; and
foreclose future Caldwell-type challenges based on ambiguity about the effect of a life vote.

At the same time, by deeming the omission in Jackson’s case non‑fundamental, the Court signals that only egregious, affirmative misstatements of the jury’s role are likely to warrant reversal.

D. Co‑Defendant Sentences and Relative Culpability

Jackson, read with Cruz, suggests that:

trial judges retain broad discretion to exclude or minimize emphasis on co‑defendant sentences as “mitigation”; and
on appeal, the Supreme Court will not second‑guess such choices via proportionality or relative‑culpability review.

In capital practice, this increases the importance of developing individualized mitigation tied to the defendant’s own history, mental health, and role in the crime, rather than relying on the perceived leniency shown to co‑participants.

E. Prosecutorial Argument Boundaries

The Court’s discussion of prosecutorial comments sends mixed, but informative, signals:

Attacks on the sincerity of mitigation (remorse, jailhouse religiosity) remain fair game if tethered to evidence.
Generalized disdain for the “mitigation industry” and disparaging rhetoric about paid experts are tolerated but disfavored.
Religious disparagement crosses an ethical line (the Court cites Bar Rule 4‑8.4(d)) even if, on this record, it did not amount to fundamental error.
Graphic and emotive descriptions of the crime can be acceptable where they track the evidence and are linked to statutory aggravators such as HAC.

Future capital litigants can use Jackson both as a warning (for prosecutors) and as a framework (for defense objections and bar complaints) in calibrating closing arguments.

F. Justice Labarga’s Concurrence: Policy and Constitutional Tension

Justice Labarga’s concurrence in result is notable. While accepting that Poole and the conformity clause bind the Court to reject unanimity as a constitutional requirement, he:

stresses that only Florida and Alabama permit nonunanimous death recommendations, and Florida now demands the fewest juror votes (8 vs. Alabama’s 10);
points out that the federal death penalty requires unanimity; and
highlights Florida’s national lead in death‑row exonerations (30 as of his writing), arguing that unanimity provides an essential “narrowing function” and safeguard against wrongful executions.

He also reiterates his disagreement with the majority’s use of the conformity clause to treat U.S. Supreme Court decisions as a “ceiling” on rights, rather than a “floor” above which the Florida Constitution could provide more protection.

While not legally operative, the concurrence may inform future legislative or constitutional reform efforts, and it flags the possibility that federal courts—or future state courts with a different view of the conformity clause—could revisit some issues that Jackson treats as settled.

VII. Conclusion: The Significance of Jackson v. State

Michael James Jackson v. State is a foundational decision for Florida’s current capital‑sentencing landscape. Its principal takeaways are:

Florida’s 2023 capital‑sentencing statute, allowing death sentences based on 8–4 jury recommendations, is constitutional under existing Eighth, Sixth, and Fourteenth Amendment doctrine.
Applying that statute to resentencings held after its effective date—even for pre‑2005 crimes and Hurst‑relief cases—is a valid prospective application of procedural law, not forbidden retroactivity or a bill of attainder.
Efforts to re‑constitutionalize unanimity, comparative proportionality, or relative culpability review through “safeguards” rhetoric are foreclosed in Florida courts by Poole, Lawrence, Cruz, and now Jackson.
Trial courts must inform capital juries that a life recommendation is binding, but failure to do so will rarely rise to fundamental error absent affirmative misrepresentation of the jury’s role.
Co‑defendant sentences, alleged witness recantations, and prosecutorial overreach will be scrutinized under stringent preservation and harmless‑/fundamental‑error standards, with strong deference to trial‑level discretion.
The Court continues to permit death‑qualification of juries despite its disproportionate impact on jurors of color, considering itself bound by Lockhart v. McCree.

At a broader level, Jackson underscores the Court’s current philosophy: Florida’s capital sentencing scheme need not exceed, and will not be interpreted to exceed, the constitutional minima set by the U.S. Supreme Court. Legislative policy choices—such as moving from unanimity to 8–4 recommendations—will be respected so long as they do not transgress those minima.

Whether that approach adequately addresses the risk of wrongful convictions and death sentences, particularly in a state with Florida’s exoneration record, remains a matter of profound debate, reflected most clearly in Justice Labarga’s concurrence. But as a matter of binding legal doctrine within Florida courts, Jackson firmly anchors the 8–4 statute and clarifies the rules that will govern capital trials and resentencings for the foreseeable future.