Prospective Application and Constitutionality of Florida’s 8–4 Jury Death Recommendation Statute: Commentary on Michael James Jackson v. State of Florida

Prospective Application and Constitutionality of Florida’s 8–4 Jury Death Recommendation Statute: Commentary on Michael James Jackson v. State of Florida

I. Introduction

The Florida Supreme Court’s corrected opinion in Michael James Jackson v. State of Florida, No. SC2023‑1298 (Dec. 18, 2025), is a major decision in Florida capital jurisprudence. It resolves, in the State’s favor, a broad frontal attack on Florida’s 2023 amendments to section 921.141, Florida Statutes, which now permit a death sentence upon an 8–4 jury recommendation.

The case sits at the intersection of several transformative developments:

  • The U.S. Supreme Court’s Sixth Amendment decision in Hurst v. Florida, 577 U.S. 92 (2016);
  • This Court’s now‑receded‑from expansion in Hurst v. State, 202 So. 3d 40 (Fla. 2016);
  • The retrenchment in State v. Poole, 297 So. 3d 487 (Fla. 2020); and
  • The Legislature’s 2023 reaction to the Parkland (Nikolas Cruz) verdict, ch. 2023‑23, Laws of Florida, lowering the jury threshold for recommending death from unanimity to 8 jurors.

Jackson—convicted in 2007 of orchestrating the buried‑alive murders of James and Carol Sumner—received two death sentences after 8–4 jury recommendations. Those sentences were vacated in 2017 under Hurst v. State, and he was granted a new penalty phase. By the time his resentencing finally occurred in 2023, Poole had receded from the Hurst unanimity requirement, and the Legislature had enacted the 8–4 recommendation regime. Jackson’s resentencing jury again recommended death 8–4 on each count, and the trial court again imposed two death sentences.

On appeal, represented by substantial capital‑defense resources and amici, Jackson raised fourteen issues, heavily focused on the 2023 statutory amendments and their application to his resentencing. The Court rejected every challenge and affirmed both death sentences. Justice Labarga concurred in result only, reiterating his longstanding objections to non‑unanimous death recommendations and to Florida’s abandonment of proportionality review.

The central significance of Jackson is threefold:

  1. It upholds the facial constitutionality of Florida’s 8–4 jury recommendation statute under the Eighth, Sixth, and Fourteenth Amendments and under the Florida Constitution.
  2. It confirms that the 2023 amendments apply prospectively to penalty‑phase proceedings held after their effective date, including Hurst resentencings for pre‑amendment crimes.
  3. It tightens doctrinal standards on Caldwell claims, mitigation treatment, prosecutorial misconduct, and cumulative error in capital resentencings.

II. Summary of the Opinion

A. Factual and Procedural Background

In July 2005, Jackson (age 23) and three codefendants—Tiffany Cole (23), Alan Wade (18), and Bruce Nixon (18)—robbed, kidnapped, and murdered James and Carol Sumner, a frail elderly couple who had allowed Jackson and Cole to stay in their home. After learning of the Sumners’ finances, the group dug a six‑foot‑deep grave in rural Georgia. They then bound the Sumners with duct tape, forced them into the trunk of their car, transported them to the gravesite, placed them in the hole, and buried them alive. Jackson later used the victims’ ATM card, impersonated James Sumner on calls with the bank and police, and was arrested in South Carolina. Nixon cooperated and testified that Jackson was the leader.

In 2007, a Duval County jury convicted Jackson of two counts of first‑degree murder and related offenses. The jury recommended death 8–4 for each murder. The trial court found eight aggravators and very limited mitigation, concluding the aggravation “far outweighed” mitigation, and imposed two death sentences. This Court affirmed in 2009. See Jackson v. State, 18 So. 3d 1016 (Fla. 2009).

In postconviction proceedings, Jackson returned to court in 2011 to waive guilt‑phase challenges and affirm that the crimes were his idea and that he was the leader. Postconviction relief and habeas were denied in 2013. See Jackson v. State, 127 So. 3d 447 (Fla. 2013).

B. Hurst Relief and the 2023 Resentencing

After this Court’s 2016 Hurst v. State decision required unanimous jury recommendations of death, Jackson filed a successive Rule 3.851 motion seeking relief. The postconviction court granted a new penalty phase in June 2017; the State did not appeal. Meanwhile, the Legislature in 2017 amended section 921.141 to require unanimity for a death recommendation.

Before resentencing occurred, however, this Court’s 2020 decision in Poole receded from Hurst v. State’s unanimity holding, returning Florida law to the view that the Sixth Amendment requires only that the jury unanimously find at least one aggravator; it does not require a jury recommendation of death, unanimous or otherwise. The State tried to use Poole to reinstate Jackson’s vacated death sentences; this Court refused, holding that vacated death sentences could not be retroactively reinstated. See State v. Jackson, 306 So. 3d 936 (Fla. 2020).

In 2023, after the Parkland shooter Nikolas Cruz received a life sentence on a non‑unanimous jury recommendation, the Legislature again amended section 921.141. The new version:

  • Retained the requirement that the jury unanimously find at least one aggravator to render the defendant death‑eligible.
  • Allowed the trial court to impose death if 8 or more jurors recommend death.
  • Required that if fewer than 8 jurors vote for death, the recommendation must be life, which is binding on the court.
  • Preserved the court’s ability to override a death recommendation, but not a life recommendation.

Jackson’s 2023 resentencing occurred under this 8–4 statute. He filed multiple motions to continue or to require application of the unanimous‑jury statutory scheme, raising an array of constitutional and statutory objections. The trial court denied those motions, applied the 2023 statute, and empaneled a new jury.

At resentencing, the State re‑proved the same eight aggravators. Nixon refused to testify; his 2007 testimony was introduced as perpetuated testimony after the court found him unavailable. Jackson presented extensive mitigation—25 non‑statutory mitigators plus age—including prenatal alcohol exposure and neurological deficits, childhood neglect and instability, mental‑health diagnoses, religious devotion, remorse, and family relationships.

The jury unanimously found all eight aggravators beyond a reasonable doubt for each murder. After weighing aggravation and mitigation, the jury recommended death 8–4 on each count. The trial court followed the recommendations, assigning “great” or “very great” weight to the aggravators and mostly “little” or “some” weight (and in five instances, “no weight”) to mitigation, and finding that aggravation “heavily” outweighed mitigation.

C. Issues on Appeal and Disposition

Jackson raised fourteen issues. The Court grouped them into:

  1. Challenges to the 2023 amendments to section 921.141 and their application to his resentencing; and
  2. Alleged errors in the conduct of the resentencing trial.

Among the principal holdings:

  • Non‑unanimous (8–4) jury recommendations do not violate the Eighth Amendment, the Sixth Amendment, or equal protection; Spaziano and Poole control and foreclose arguments requiring jury unanimity in the penalty phase.
  • Section 775.022(3) (2019 “criminal statute” prospective‑application provision) does not bar application of the 2023 capital‑sentencing procedures to resentencings that occur after the effective date, even for pre‑amendment crimes; such use is “prospective,” not “retroactive,” under Love v. State, 286 So. 3d 177 (Fla. 2019).
  • Res judicata does not require that Jackson’s resentencing be governed by Hurst v. State; resentencing is a de novo proceeding governed by the “decisional law effective at the time of the resentencing.” State v. Fleming, 61 So. 3d 399 (Fla. 2011).
  • The 2023 amendments are not a bill of attainder; they are a generally applicable procedural statute, not targeted punishment of an identified individual or group without trial.
  • Florida’s capital scheme, even without comparative proportionality review and with “aggravator creep,” is not facially arbitrary or capricious under the Eighth Amendment.
  • Equal protection challenges to disparate treatment of Hurst resentencing defendants fail under rational‑basis review, reinforced by Dobbert v. Florida, 432 U.S. 282 (1977).
  • The trial court should have instructed the jury that a life recommendation is binding on the judge, but the omission was unpreserved and did not amount to fundamental error or a Caldwell violation.
  • The court’s refusal to admit codefendant Wade’s life sentence, Nixon’s partial “recantation” at Wade’s resentencing, and objections to prosecutorial comments—individually and cumulatively—did not warrant a new penalty phase.
  • The sentencing order’s assignment of “no weight” to some established mitigators did not violate Eddings v. Oklahoma, 455 U.S. 104 (1982), or Florida law; under Rogers and Newberry, a court may find a circumstance established but “not mitigating” and assign it no weight.
  • Death‑qualification of the jury, even if it disproportionately excludes jurors of color, does not violate the Constitution; Lockhart v. McCree, 476 U.S. 162 (1986), controls.
  • Denial of a continuance to await formal standard jury instructions and to prepare further challenges to the new statute was not an abuse of discretion; Jackson failed to show undue prejudice.

Justice Labarga concurred in result only. He reiterated that Florida is now “the absolute outlier” among death‑penalty jurisdictions, with the lowest jury threshold (8) for recommending death, and expressed continuing disagreement with Poole and the elimination of proportionality review in Lawrence v. State, 308 So. 3d 544 (Fla. 2020).

III. Key Precedents and Their Influence

A. Hurst v. Florida, Hurst v. State, and State v. Poole

  • Hurst v. Florida, 577 U.S. 92 (2016). The U.S. Supreme Court held Florida’s then‑existing capital scheme unconstitutional because the judge, not the jury, made the critical fact‑finding (existence of an aggravator) required to expose the defendant to death, in violation of the Sixth Amendment as interpreted by Apprendi and Ring.
  • Hurst v. State, 202 So. 3d 40 (Fla. 2016), receded from in part by Poole. On remand, this Court went further, holding that both the Sixth and Eighth Amendments required:
    • Unanimous jury findings of each aggravator;
    • Unanimous jury findings that aggravation sufficed for death and outweighed mitigation; and
    • A unanimous jury recommendation of death.
    The Legislature responded with a unanimity requirement in 2017.
  • State v. Poole, 297 So. 3d 487 (Fla. 2020). This Court receded from most of Hurst v. State, holding that the Sixth Amendment requires only a unanimous jury finding of a qualifying aggravator, not a unanimous death recommendation or unanimity on weighing. Relying on Spaziano v. Florida, 468 U.S. 447 (1984), Poole held that the Eighth Amendment does not require a jury’s favorable recommendation before a death sentence may be imposed.

In Jackson, these decisions are central. They:

  • Bar any argument that the federal Constitution requires a unanimous death recommendation (Poole, Spaziano);
  • Define the line between “eligibility” facts (aggravators) and “selection” judgments (weighing), foreclosing Jackson’s attempt to portray weighing as a Sixth Amendment “fact” requiring unanimity; and
  • Confirm that, at a de novo resentencing, current law (Poole and the 2023 statute), not Hurst v. State, controls.

B. Love v. State and § 775.022(3)

Section 775.022(3) (2019) states that amendments to “criminal statutes” operate prospectively and do not “affect or abate” prior prosecutions or the prior operation of the statute. In Love, this Court held that a procedural amendment to the burden of proof in pretrial “Stand Your Ground” immunity hearings applied to hearings held after the amendment’s effective date, even in older cases. Applying a new procedure in a hearing that has not yet occurred is “essentially” prospective, not retroactive.

Jackson uses Love to hold that applying the 2023 procedural changes to a penalty phase conducted after the effective date is likewise prospective. The crime date (2005) does not freeze procedural law; the key is when the proceeding occurs.

C. State v. Fleming and De Novo Resentencing

State v. Fleming, 61 So. 3d 399 (Fla. 2011), holds that resentencing is a de novo proceeding governed by “the decisional law effective at the time of the resentencing.” That principle defeats Jackson’s res judicata argument: the 2017 Hurst relief order did not permanently entitle him to the Hurst v. State unanimity regime. Once his original sentences were vacated, only current law at the time of resentencing mattered—here, Poole and the 8–4 statute.

D. Dobbert v. Florida and Equal Protection

In Dobbert v. Florida, 432 U.S. 282 (1977), the U.S. Supreme Court upheld Florida’s application of a new post‑Furman capital statute to a defendant whose crimes predated Furman, even though other prisoners sentenced under the pre‑Furman statute had their death sentences commuted to life. The Court rejected an equal protection challenge, reasoning that Florida had to “draw the line” somewhere, and that Dobbert was not similarly situated to those whose cases were final under the old law.

Jackson invokes Dobbert to reject equal protection attacks based on:

  • The fact that many Hurst resentencing defendants were resentenced under a unanimity statute, while Jackson was resentenced later under 8–4; and
  • The idea that timing and geography, rather than culpability, explain his outcome.

As in Dobbert, Florida “had to draw the line,” and it did so by applying new procedural law to proceedings that had not yet occurred.

E. Spaziano v. Florida and the Eighth Amendment Baseline

Spaziano v. Florida, 468 U.S. 447 (1984), upheld Florida’s former system in which the judge could override a jury’s life recommendation and impose death. Critically, the Court held that the Eighth Amendment does not require a jury’s favorable recommendation of death at all. Until Spaziano is overruled by the U.S. Supreme Court, this Court treats it as binding.

Jackson repeatedly invokes this point:

  • If the Eighth Amendment does not demand any jury recommendation of death, it cannot require that such a recommendation be unanimous.
  • Arguments premised on “evolving standards of decency” that mandate unanimity are “irrelevant” under current U.S. Supreme Court precedent.

F. Ramos v. Louisiana and Its Limits

In Ramos v. Louisiana, 590 U.S. 83 (2020), the U.S. Supreme Court held that the Sixth Amendment, as incorporated, requires unanimous jury verdicts for serious criminal convictions. Ramos also highlighted the racially discriminatory roots of some nonunanimous‑jury laws.

Jackson tried to leverage Ramos to attack Florida’s 8–4 death recommendation rule as racially discriminatory under the Eighth and Fourteenth Amendments. The Court rejected this, stressing:

  • Ramos was a Sixth Amendment conviction case, not an Eighth Amendment/selective‑sentencing case.
  • Ramos expressly did not adjudicate an equal protection claim; it noted historical discrimination but did not rest on that ground.
  • Florida’s scheme concerns the penalty phase, not the guilt phase, and is governed by Spaziano/Poole, not Ramos.

G. Caldwell v. Mississippi and Romano v. Oklahoma

Caldwell v. Mississippi, 472 U.S. 320 (1985), held that a prosecutor’s argument that the jury’s death sentence would be reviewed by an appellate court improperly minimized the jury’s sense of responsibility, violating the Eighth Amendment. Justice O’Connor’s concurrence, later treated as controlling, emphasized that the problem was the jury being affirmatively misled about its role.

In Romano v. Oklahoma, 512 U.S. 1 (1994), the Court clarified that the “infirmity identified in Caldwell” is limited to circumstances where the jury is affirmatively misled about its responsibility.

In Jackson, the Court:

  • Recognized that the trial court should have instructed jurors that a life recommendation would bind the court, but
  • Held that the omission was unpreserved and did not amount to a Caldwell violation, because the jury was not told its role was unimportant and was repeatedly reminded of the gravity of its task.

H. Lockhart v. McCree and Death Qualification

Lockhart v. McCree, 476 U.S. 162 (1986), held that the Constitution does not prohibit “death qualification” of juries—i.e., excluding jurors who would automatically vote against death—despite empirical evidence that it may skew juries demographically or attitudinally.

Jackson relied on a local study suggesting that death qualification in Duval County disproportionately excludes Black jurors and other jurors of color. The Florida Supreme Court held it was bound by Lockhart; the fair‑cross‑section requirement applies to venires, not petit juries, and does not bar death‑qualification even if it has racially disparate impacts.

I. Rogers, Newberry, Lockett, and Eddings on Mitigation

  • Lockett v. Ohio, 438 U.S. 586 (1978). The sentencer may not be precluded from considering any aspect of a defendant’s character, record, or the circumstances of the offense as mitigation.
  • Eddings v. Oklahoma, 455 U.S. 104 (1982). The sentencer may not refuse as a matter of law to consider mitigating evidence; it must at least “listen” to and consider it.
  • Rogers v. State, 285 So. 3d 872 (Fla. 2019). Receded from earlier Florida precedent requiring detailed written explanation for the weight assigned to each mitigator; reaffirmed that both the existence of mitigation and its weight are for the trial court’s discretion.
  • Newberry v. State, 288 So. 3d 1040 (Fla. 2019). Approved a sentencing order that found certain proposed mitigators “established” but “not mitigating” and assigned them no weight.

In Jackson, the Court relies on Rogers and Newberry to reject Jackson’s claim that assigning “no weight” to five established nonstatutory mitigators violated Eddings. The trial court considered all mitigation; that it found some circumstances not mitigating in this context and gave them no weight is within its discretion and not an Eighth Amendment violation.

IV. The Court’s Legal Reasoning

A. Constitutionality of the 8–4 Death Recommendation

1. Eighth Amendment and “Evolving Standards of Decency”

Jackson raised multiple Eighth Amendment objections, including:

  • That non‑unanimous recommendations create a “breeding ground for racial discrimination” and violate the requirement that capital verdicts be free from racial taint; and
  • That an 8–4 threshold is inconsistent with “evolving standards of decency,” particularly given national trends toward unanimity.

The Court’s response is structurally simple but powerful: Spaziano and Poole remain binding. Because the Eighth Amendment does not require any jury recommendation of death, it necessarily does not require unanimity in such a recommendation. Arguments that “evolving standards” now demand unanimity are “irrelevant” unless and until the U.S. Supreme Court revises its Eighth Amendment baseline.

On racial discrimination, the Court notes:

  • Ramos sheds light on the racist origins of some nonunanimous schemes, but it was not an equal protection or capital‑sentencing case.
  • Jackson styled his attack as a facial challenge; he had to show no set of circumstances under which the 8–4 statute could be constitutionally applied.
  • The legislative record he cited—testimony that nonunanimity could impact Black communities, or that a Parkland juror was a “rogue” or “activist” juror—does not prove the kind of racially discriminatory intent required by Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977).

2. Sixth Amendment and Unanimity

Jackson argued that:

  • The jury should have been required to unanimously find that aggravators outweigh mitigation (the weighing determination); and
  • The Sixth Amendment, as understood at the founding, included a right to unanimity on “life and death” decisions.

The Court rejected both contentions as foreclosed by Poole:

  • Weighing is a “selection finding,” not a “fact” for Sixth Amendment purposes; thus, it need not be found unanimously or beyond a reasonable doubt.
  • Spaziano, as interpreted in Poole, holds that the Sixth Amendment does not require any jury recommendation of death, “much less a unanimous one.”

3. Equal Protection – “Class of One” and Hurst Resentencing Cohort

Relying on Village of Willowbrook v. Olech, 528 U.S. 562 (2000), Jackson framed himself as a “class of one,” allegedly singled out among Hurst resentencing defendants: of fewer than 60 such defendants, he claimed he was the only one resentenced to death under the 8–4 statute.

The Court’s analysis:

  • Similarly situated? Jackson’s premise fails because other Hurst resentencing defendants whose penalty phases were completed earlier under unanimity are not similarly situated to someone resentenced after the 2023 procedural amendments took effect.
  • Rational basis. Even assuming he could show differential treatment, there is a rational basis for applying the current procedural rules to resentencings held after the effective date. Dobbert illustrates that line‑drawing tied to procedural timing survives rational‑basis scrutiny.

B. Application of § 775.022(3) – Prospective vs. Retroactive

Jackson contended that section 775.022(3) required the 2023 capital statute to apply only “prospectively,” meaning only to crimes committed after its enactment, so that his 2005 offense had to be resentenced under the 2017 unanimity statute.

The Court:

  • Accepted the parties’ agreement that the 2023 amendments are “criminal statutes” within the meaning of § 775.022(2) and are procedural in nature.
  • Emphasized, via Love, that the distinction is not crime date but proceeding date:
    • Applying a new procedure to a hearing held after the amendment is “prospective,” even if the underlying crime long predates the statute.
  • Rejected Jackson’s attempt, raised only in reply, to rely on the “prior operation” language in § 775.022(3)(a)—because (1) it was procedurally improper to shift to a new statutory clause on reply, and (2) the 2017 unanimity statute had no relevant “prior operation” in his case; he never had a penalty phase under that version.

Thus, the Court held that using the 2023 8–4 procedures in a 2023 resentencing is consistent with the “prospective” command of § 775.022(3).

C. Res Judicata, Law of the Case, and the 2017 Hurst Order

Jackson argued that the 2017 order granting him a new penalty phase under Hurst v. State was a final judgment that imposed a duty on the trial court to conduct a Hurst‑compliant resentencing, and that res judicata barred deviation from that framework.

The Court rejected this, for two reasons:

  1. Narrow scope of the 2017 order. The order simply held that, under then‑existing law, Jackson was entitled to a new penalty phase. It did not freeze the procedural law to be applied at that future resentencing.
  2. Intervening change in law / de novo resentencing. Even if the order implicitly anticipated Hurst‑compliant procedures, res judicata gives way to intervening changes in law. Under Fleming, resentencing is de novo and governed by the law in effect at the time. When Jackson was finally resentenced in 2023, Poole, not Hurst v. State, was the controlling law.

Because the 2017 order was never appealed, law‑of‑the‑case doctrine did not apply either.

D. Bill of Attainder and Alleged “Targeting” of Jackson

Jackson advanced a creative “bill of attainder” argument, claiming that his prosecutors, through text messages with a legislator, “goaded” the Legislature into crafting Senate Bill 450 so it would apply to his resentencing, thereby stripping him of a unanimous‑jury right.

The Court’s analysis hews closely to classical definitions:

  • Definition. A bill of attainder is a legislative act that (1) applies to named individuals or an easily ascertainable group, (2) inflicts punishment, and (3) does so without a judicial trial. See United States v. Lovett, 328 U.S. 303, 315 (1946); Mayes v. Moore, 827 So. 2d 967, 972 (Fla. 2002).
  • No named individual or closed class. SB 450 does not name Jackson or any specific person; it applies to all capital defendants whose sentencing occurs under its terms, including all Hurst resentencing defendants whose hearings post‑date its effective date. This is a rule of general applicability, see United States v. Brown, 381 U.S. 437, 461 (1965), not a targeted bill of attainder.
  • No legislative determination of guilt or punishment. The statute does not legislatively declare anyone guilty or impose punishment on identified individuals without a trial; it merely prescribes the procedural framework under which courts and juries will carry out sentencing.
  • Procedural vs. punitive. The Court declined to extend “punishment” in the bill‑of‑attainder context to encompass purely procedural changes in sentencing structure, noting that Jackson’s best case, Dugger v. Williams, 593 So. 2d 180 (Fla. 1991), involved ex post facto concerns and substantive diminution of a pre‑existing advantage “at the time [the defendant] committed his offense.” Jackson enjoyed no such advantage at the time of his 2005 crimes, when Florida law allowed death on a 7–5 recommendation.

The text messages, which began after SB 450 had already passed one chamber and on the day its companion bill passed the other, did not change this analysis.

E. “Lack of Safeguards” and Facial Eighth Amendment Challenge

Jackson framed a broad “safeguards” argument, alleging that Florida’s capital system is now arbitrary and capricious given:

  • The elimination of comparative proportionality review (Lawrence);
  • The elimination of relative culpability review as a distinct constitutional requirement (Cruz v. State, 372 So. 3d 1237 (Fla. 2023));
  • The 8–4 statute;
  • “Aggravator creep” (the tendency for more aggravators to be found in more cases); and
  • An alleged judicial unwillingness to “actively police” capital errors.

The Court had already rejected similar facial attacks in Miller v. State, 379 So. 3d 1109 (Fla. 2023), and Wells v. State, 364 So. 3d 1005 (Fla. 2023), emphasizing:

  • Neither comparative proportionality review nor relative culpability review is mandated by the Eighth Amendment; they were state‑law doctrines that Florida could abandon.
  • “Aggravator creep” does not render the statutory aggravators facially overbroad.
  • The absence of a constitutional requirement for a jury recommendation of death under Spaziano/Poole again dooms arguments that the 8–4 recommendation standard itself violates the Eighth Amendment.

The Court also pointedly rejected Jackson’s suggestion that it “no longer actively polices capital cases,” cautioning counsel in strong terms.

F. Caldwell, Jury Instructions, and Fundamental Error

Jackson’s most substantial trial‑error claim involved the jury instructions. Under the 2023 statute:

  • If at least 8 jurors recommend death, the judge may impose death or life.
  • If fewer than 8 jurors recommend death, the jury’s recommendation must be life, and the court must impose life.

The trial court’s instructions repeatedly described the jury’s role as returning a “recommendation,” but did not explain that a life recommendation was binding. The Standard Jury Instructions Committee later approved an instruction explicitly telling jurors that if fewer than 8 vote for death, “the Court must sentence the defendant to life in prison.”

Jackson argued on appeal that this omission misled jurors about the binding effect of a life recommendation, diminishing their sense of responsibility in violation of Caldwell. The Court’s treatment proceeds in three steps:

  1. Error identified. The Court candidly notes that the jury should have been instructed about the binding effect of a life recommendation—that is what the statute requires.
  2. Lack of preservation. The Court carefully dissects the record and concludes:
    • Defense objections at trial focused on the statute’s and instructions’ use of the word “recommendation” at all (a facial Caldwell attack on the statute), not on the absence of an explanation that life was binding.
    • At one point, when “advisory” language was proposed, defense counsel expressed concern about labeling a life verdict advisory and agreed when the judge said the instructions would tell jurors that “if their recommendation is life that’s it. It’s over.” Counsel’s “Right” response suggests he believed such language would be included.
    • Thus, the specific instructional error now claimed was never fairly presented to the trial court as a Caldwell or Eighth Amendment issue.
  3. No fundamental error / no Caldwell violation.
    • The instructions, while imperfect, repeatedly referred to the jury’s “verdict,” “decision,” and the “gravity” of the proceedings, and urged careful consideration because “a human life is at stake.” They did not tell the jury its role was minor or that others would bear responsibility.
    • Defense counsel, in closing, told the jury, “It takes five jurors to get a life sentence,” assured them the judge would follow their recommendation, and said, “your decision is the final decision,” further underscoring their responsibility.
    • Given this context, the omission did not “reach down into the validity of the trial itself” such that the death recommendation “could not have been obtained” without it.
    • Caldwell requires that the jury be affirmatively misled regarding its role (per Romano); that did not occur here.

The Court also deemed speculative Jackson’s prejudice theory that the “four life jurors” would have “fought longer” for a fifth life vote if they’d known life was binding—especially given defense counsel’s repeated admonitions in voir dire and closing not to “bully” or pressure other jurors to change their views.

G. Treatment of Mitigation and Codefendant Wade’s Life Sentence

1. Codefendant’s Life Sentence as Mitigation

Jackson asserted that Wade’s life sentence, imposed after Wade’s own Hurst resentencing, was mitigation the jury was constitutionally entitled to hear. He cited Lockett and Eddings and noted Florida decisions mentioning codefendant sentences as mitigation, though not squarely deciding the point.

The Court did not resolve the constitutional status of such evidence. Instead, it held:

  • The specific Eighth Amendment argument was not preserved; defense counsel’s trial arguments were framed in terms of a prior order on “proportionality” arguments, not Lockett/Eddings or a right to present mitigation.
  • The trial judge had also indicated that disclosure of Wade’s life sentence could invite a “trial‑within‑a‑trial” over Wade’s aggravation and mitigation and that its probative value might be substantially outweighed by potential prejudice, confusion, or misleading the jury under § 90.403.
  • Any error was far from fundamental; Jackson did not show that the omission of Wade’s life sentence made a critical difference in the jury’s or judge’s weighing, particularly given Jackson’s conceded leadership role.

Notably, the Court reiterated Cruz’s statement that “relative culpability review is neither constitutionally required nor consistent with ensuring that a constitutional capital sentence was rendered,” limiting Jackson’s ability to turn Wade’s lesser sentence into a constitutional wedge.

2. Assigning “No Weight” to Established Nonstatutory Mitigation

The trial court expressly found each of Jackson’s 25 proposed mitigating circumstances “established” but assigned “no weight” to five of them (e.g., broken promises by his mother to visit, impaired social skills, lack of a psychoeducational evaluation, recent relationship with a sister, desire to teach others about God).

Jackson argued that once a mitigating circumstance is established, the court must give it some weight, and that assigning “no weight” violated Eddings.

The Court disagreed. Relying on Rogers and Newberry, it held:

  • The trial court’s job is to consider each proffered mitigator and decide:
    • Is it established?
    • If so, is it mitigating in the context of this case?
    • If so, what weight should it receive?
  • The fact that the court listed these circumstances, acknowledged their factual basis, and then expressly gave them “no weight” shows that it considered them but deemed them not mitigating in light of the extreme aggravation.
  • Eddings forbids categorical refusal to consider a type of mitigation, but it does not bar assigning zero weight after consideration. As this Court said in Trease v. State, 768 So. 2d 1050 (Fla. 2000), the sentencer is not required to give every asserted mitigating factor positive weight.

H. Nixon’s “Recantation” and Impeachment

Jackson complained that he could not impeach Nixon’s perpetuated 2007 testimony with Nixon’s partial “recantation” during Wade’s resentencing, where Nixon briefly suggested he did not know the purpose of the grave and said his prior testimony reflected what his lawyer wanted him to say. Ultimately, Nixon refused to continue testifying and invoked the Fifth Amendment.

At Jackson’s resentencing, after Nixon was ruled unavailable and his 2007 testimony was played, defense counsel asked to admit Nixon’s 2022 testimony from Wade’s case. The judge, who had presided over Wade’s proceeding, denied the request. No specific rule‑of‑evidence objection or federal/state constitutional argument was articulated at that time.

The Court therefore reviewed only for fundamental error and found none:

  • Any impeachment value of Nixon’s brief “recantation” was weak, given that he refused to continue testifying and invoked the Fifth Amendment.
  • The core factual narrative of Jackson’s leadership role and the buried‑alive murders was overwhelmingly supported by other evidence, including Jackson’s own in‑court admissions that he conceived the crime and was the leader.
  • The excluded evidence did not undermine any specific aggravator or bolster any particular mitigation in a way that could have changed the outcome.

I. Prosecutorial Misconduct and Cumulative Error

Jackson catalogued more than a dozen comments by the prosecutor, alleging:

  • Improper denigration of mitigation (especially mental‑health and religious mitigation); and
  • Improper appeals to fear and emotion, including a “dissertation on evil” and a golden‑rule style narrative of the victims’ last thoughts.

The Court parsed these comments into two main categories and applied a combination of preservation analysis, harmless‑error review, and the fundamental‑error standard.

1. Denigration of Mitigation

Florida precedent bars prosecutors from “improperly denigrating” mitigation—for example, calling it “flimsy,” “phantom,” or mere “excuses.” See Delhall v. State, 95 So. 3d 134, 167–68 (Fla. 2012); Carr v. State, 156 So. 3d 1052 (Fla. 2015). But prosecutors may rebut mitigation and challenge the sincerity or weight of asserted mitigating factors.

Objected‑to comments the Court upheld included:

  • Calling mitigation a “biased, paid for industry”—viewed in context as a permissible attack on the defense experts’ bias and methodology, not an attempt to invalidate mitigation categorically.
  • Arguing that the jury should “judge [Jackson] not by what you heard in this courtroom” but “by when he was free”—cured by the court’s reminder that it would instruct on the law.
  • Questioning whether Jackson should “get credit” for remorse expressed only after he was caught—permissible argument about the genuineness of remorse as mitigation.
  • Asking a neuropsychologist whether Jackson’s test results “excuse” his actions—an inartful single use of “excuse” but in the context of probing whether Jackson could appreciate the wrongfulness of burying people alive.

Unobjected‑to comments the Court deemed not fundamentally erroneous included:

  • Urging jurors not to judge Jackson by “the clergy who visit him” or “paid advocates,” but by his conduct when free—again, a challenge to the weight of religious and character mitigation.

The Court did find two religiously charged remarks improper:

  • Describing Jackson as a “South Carolina kid that somehow celebrat[es] Passover like he is a religious Jew” and
  • Calling “Jews for Jesus” “a small fringe religion.”

These comments, the Court noted, disparaged the content of Jackson’s professed Messianic Jewish faith, rather than merely questioning sincerity. They contravened the ethical rule (Rule 4‑8.4(d)) barring disparagement of a party on account of religion. Nevertheless, in the absence of objection, and given the overall weight of the evidence and the narrow role of these isolated comments in a lengthy proceeding, the Court declined to find fundamental error or cumulative prejudice warranting a new penalty phase.

2. Appeals to Fear and Emotion; “Evil”; Golden‑Rule Argument

Jackson also objected (largely on appeal, without trial objections) to the prosecutor’s repeated references to “evil,” “soulless darkness,” and other emotionally charged language, and to a closing argument passage speculating about the victims’ thoughts in the grave.

The Court’s reasoning:

  • “Evil” rhetoric. While repeated “dissertations on evil” that suggest jurors would be “cooperating with evil” by recommending life can cross the line (see Cruz, King), the mere use of the word “evil” to describe the crimes is not per se reversible error. Here, the prosecutor’s references were tied to the facts (two frail victims buried alive) and the HAC aggravator and did not reach the level of improper exhortation found in Delhall.
  • Legitimacy of seeking “ultimate punishment.” The comments that “some evil is just too great to tolerate” and “some evil can only sufficiently be punished” by the “ultimate punishment” were viewed as urging the jury, based on the evidence, to exercise its sentencing function—not as impermissible references to prosecutorial expertise or internal office decision‑making as in Pait or Brooks.
  • Golden‑rule claim. The challenged statement that the Sumners, in the grave, “may have thought about that gun putting two bullets in the back of their heads” was reviewed only for fundamental error due to a nonspecific objection. The Court likened it to Rogers, where a prosecutor speculated about a dying victim’s reflections on her life and family. It found the argument a reasonable, evidence‑based inference in support of HAC, not an improper invitation for jurors to imagine themselves in the victims’ place.

In sum, viewing all comments together, the Court found no cumulative fundamental error. The aggravation was overwhelming; the mitigation, though extensive, was relatively weak. Any improper comments did not so infect the proceeding that the 8–4 recommendations and resulting sentences could only have been obtained with their help.

J. Death Qualification and Racial Fair‑Cross‑Section Claims

Jackson sought to bar death‑qualification of the jury, asserting that it systematically excludes jurors of color, especially in Duval County, where empirical studies allegedly show that Black jurors are more likely to oppose the death penalty.

The Court held:

  • Lockhart controls and explicitly allows death qualification, even in the face of evidence of attitudinal or demographic skew.
  • The Sixth Amendment fair‑cross‑section right applies to venires, not petit juries, and does not encompass jurors whose exclusion is based on valid cause (such as automatic opposition to capital punishment).
  • Jackson did not challenge the cause excusals of any specific prospective jurors; his challenge remained categorical, which Lockhart precludes.

K. Continuance and Preparation for New Statute

Finally, Jackson argued that the court abused its discretion by denying a continuance or, alternatively, requiring the new statute to be applied only prospectively to future cases. He claimed:

  • His counsel lacked sufficient time to research and brief all viable challenges to the new law; and
  • Waiting would have allowed the trial court to benefit from finalized standard jury instructions, thus avoiding instructional errors.

Under the abuse‑of‑discretion standard, a denial of continuance is reversible only if it causes undue prejudice. The Court held Jackson showed none:

  • Defense counsel in fact filed multiple extensive motions challenging the 2023 amendments on a wide range of theories (res judicata, equal protection, bill of attainder, Eighth Amendment arbitrariness, § 775.022(3), Caldwell, etc.).
  • At a hearing, counsel could identify only “perhaps” additional arguments they might raise, with no concrete showing of omitted meritorious claims.
  • The only concrete prejudice Jackson pointed to—the jury‑instruction issue—failed because, as discussed, any error in omitting the binding‑effect language was unpreserved and not fundamental.

V. Complex Concepts Simplified

A. Hurst Relief and “Hurst Resentencing Defendants”

  • After Hurst v. State (2016) imposed a unanimity requirement, many death‑sentenced inmates whose juries had recommended death by less than 12–0 received relief: their death sentences were vacated and they were granted new penalty phases.
  • These defendants are often referred to as “Hurst resentencing defendants.”
  • Jackson clarifies that being in this group does not permanently entitle a defendant to the procedural framework in place at the time relief was granted; resentencing is governed by whatever procedural statute is in effect when the new penalty phase actually occurs.

B. Eligibility vs. Selection in Capital Sentencing

  • Eligibility refers to fact‑finding that determines whether a defendant is legally eligible for death (e.g., existence of at least one statutory aggravator). Under the Sixth Amendment, a jury must find these facts unanimously.
  • Selection refers to the normative judgment whether an eligible defendant should actually receive death, including:
    • Weighing aggravators against mitigation; and
    • Recommending death or life.
  • Under Poole, weighing and recommending death are not “facts” within the meaning of the Sixth Amendment, and need not be unanimous or proved beyond a reasonable doubt.

C. Caldwell Violations vs. Ordinary Instructional Error

  • A Caldwell violation occurs when the jury is affirmatively misled about its responsibility for the death sentence—for example, being told that an appellate court will make the real decision.
  • Ordinary instructional error—for example, omitting a piece of information about how the judge must treat a particular recommendation—does not automatically equal a Caldwell violation, especially if the jury is otherwise told its task is grave and consequential.
  • In Florida, unpreserved instructional errors must amount to fundamental error (i.e., reach down into the validity of the trial itself) to warrant reversal on appeal.

D. Fundamental Error and Cumulative Error in Capital Cases

  • Fundamental error is unpreserved error so serious that it undermines the foundation of the trial and could not have been harmless; the verdict or recommendation could not have been obtained without it.
  • Cumulative error analysis considers whether several individually harmless errors together caused unfair prejudice.
  • Where most alleged “errors” are unpreserved, the cumulative question is whether, in combination, they amount to fundamental error. Jackson answers that question “no” on the trial‑error cluster he presented.

E. Bills of Attainder

  • A bill of attainder is a legislative act that:
    1. Applies to specific persons or a readily identifiable group;
    2. Inflicts punishment; and
    3. Does so without a judicial trial.
  • Typical examples historically include laws naming an individual as a traitor and condemning them to death or civil disabilities without trial.
  • General procedural criminal statutes—like changing jury‑vote thresholds—are not bills of attainder, even if some officials hope or expect they will affect particular cases.

F. Mitigation and Weight

  • The Eighth Amendment requires that the sentencer consider any relevant mitigation, but it does not require that every mitigating circumstance receive positive weight or be treated as outcome‑determinative.
  • Florida trial courts must:
    • Identify each proposed mitigating factor;
    • State whether it is proven;
    • State the weight assigned, which can be from “very great” to “no weight.”
  • Assigning “no weight” to a proven fact is permissible if the court explains (explicitly or implicitly) that it does not view that fact as mitigating in context.

VI. Impact and Broader Significance

A. For Florida’s Capital Sentencing Scheme

Jackson, alongside its companion case Hunt v. State decided the same day, cements Florida’s 8–4 jury recommendation statute as:

  • Constitutionally permissible under the Eighth and Sixth Amendments as currently interpreted; and
  • Applicable in all capital sentencing and resentencing proceedings held after its effective date, regardless of when the crime occurred or when Hurst relief was granted.

This has practical consequences:

  • Remaining Hurst resentencing defendants will be tried under the 8–4 recommendation standard, not unanimity, unless their penalty phase concluded before the 2023 amendments took effect.
  • Trial courts must adapt jury instructions to explicitly convey that:
    • If fewer than 8 jurors vote for death, the recommendation is life and is binding; and
    • If 8 or more jurors vote for death, the recommendation is not binding, and the judge retains discretion to impose life.

B. Florida as a National Outlier

Justice Labarga’s concurrence in result underscores the national context:

  • Among death‑penalty jurisdictions, only Alabama and Florida allow non‑unanimous jury recommendations of death.
  • Alabama requires at least 10 jurors to recommend death; Florida now requires only 8.
  • The federal death‑penalty statute requires a unanimous jury recommendation of death. See 18 U.S.C. § 3593(e).

Florida thus has the lowest jury concurrence threshold for death in the United States. Justice Labarga views a unanimous recommendation as an essential narrowing safeguard, especially in a state that leads the nation in death‑row exonerations. He also continues to object to the abandonment of comparative proportionality review (Lawrence) and sees the U.S. Supreme Court’s interpretations as a floor, not a ceiling.

The majority does not dispute Florida’s outlier status; it simply deems it constitutionally permissible under current federal precedent. The tension Justice Labarga highlights suggests that future Eighth Amendment challenges in federal courts could seek to revisit Spaziano in light of contemporary national practices and exoneration data.

C. Strategy for Capital Litigants

For defense counsel in Florida capital cases, Jackson has several strategic implications:

  • Facial challenges to non‑unanimous death recommendations under the Eighth or Sixth Amendments are effectively foreclosed in state court; any change would have to come from the U.S. Supreme Court.
  • Challenges to the 2023 statute’s application to older crimes on non‑constitutional retroactivity grounds (e.g., § 775.022(3) arguments) are also foreclosed.
  • The most promising trial‑level focus is likely:
    • Rigorous development of mitigation and careful documentation of any improper exclusion or categorical refusal to consider mitigation; and
    • Precise, contemporaneous objections to jury instructions (especially regarding the binding effect of a life recommendation) and to any prosecutorial comments that approach religious disparagement, improper “evil” rhetoric, or golden‑rule arguments.
  • On appeal, preserved errors will receive more searching review; unpreserved errors will face the high bar of fundamental‑error review, as Jackson illustrates.

D. Legislative–Judicial Dynamics

Jackson also reflects a broader dynamic:

  • The Legislature has repeatedly adjusted capital‑sentencing statutes in response to judicial decisions (Hurst v. Florida, Hurst v. State, Poole) and high‑profile cases (Parkland).
  • The Court, in turn, has:
    • Policed the minimum Sixth Amendment threshold after Hurst v. Florida (by requiring jury finding of an aggravator); but
    • Declined to constitutionalize additional procedural protections (such as unanimity or proportionality) beyond federal requirements.

The decision in Jackson signals deference to legislative judgments about the degree of jury consensus required, so long as they remain within the bounds of Spaziano and related federal law.

VII. Conclusion

Michael James Jackson v. State of Florida is a pivotal decision that:

  • Affirms the constitutionality and prospective application of Florida’s 8–4 jury death‑recommendation statute;
  • Clarifies that Hurst resentencings are governed by the law in effect at the time of resentencing, not at the time relief was granted;
  • Reinforces the limited reach of Ramos, the binding force of Spaziano and Poole, and the strict standards for proving racial discrimination or equal protection violations in capital sentencing;
  • Tightens the law on Caldwell claims and underscores the importance of precise trial objections to preserve instructional and prosecutorial‑misconduct issues; and
  • Confirms Florida’s move away from judicially created safeguards like comparative proportionality review and relative culpability as constitutional requirements.

At the same time, Justice Labarga’s concurrence highlights an unresolved normative debate: whether, in a capital system marked by exonerations and severe consequences, the federal constitutional minimum is adequate, or whether additional unanimity and proportionality safeguards are essential to ensure the reliability and fairness of death sentences. Under current precedent, the Florida Supreme Court answers that it is bound by the former; whether the latter will gain traction in future U.S. Supreme Court decisions remains an open question.

For now, Jackson stands as the definitive statement that, in Florida, an 8–4 jury recommendation—so long as the jury unanimously finds at least one aggravator and is accurately instructed on its role—is a legally sufficient foundation for a death sentence.

Case Details

Year: 2025
Court: Supreme Court of Florida

Comments