Florida’s death penalty law now allows a jury to recommend a death sentence with just eight of twelve votes, the lowest threshold in the country. Senate Bill 450, signed in 2023, replaced the previous unanimous-jury requirement, and the Florida Supreme Court upheld the change in December 2025.1Florida Senate. Senate Bill 450 (2023) If you or someone close to you faces a capital charge in Florida, the rules below determine how the sentencing decision gets made.
What Crimes Can Bring a Death Sentence
Only first-degree murder qualifies as a capital felony in Florida, but the statute defines first-degree murder more broadly than most people expect.2Florida Senate. Florida Statutes 782.04 – Murder Three paths lead to the charge:
- Premeditated murder, meaning a killing carried out with a deliberate advance plan.
- Felony murder, meaning a killing that occurs during the commission of certain violent felonies. Qualifying felonies include robbery, sexual battery, arson, burglary, kidnapping, carjacking, home-invasion robbery, aggravated child abuse, human trafficking, drug trafficking, and terrorism-related offenses.
- Drug distribution murder, meaning distribution of certain controlled substances (opioids, fentanyl, cocaine, methamphetamine, and similar drugs) that causes or substantially contributes to another person’s death. The defendant must be at least eighteen.
The felony murder path catches people off guard. A defendant who takes part in an armed robbery can face a capital charge even without firing the fatal shot, if a co-defendant kills someone during the crime. That breadth pulls more defendants into the sentencing rules below than most people realize.
The 8-of-12 Jury Vote
Before 2023, all twelve jurors had to agree before recommending death. One holdout stopped a death sentence. Under the new law, eight votes are enough, and four dissenters cannot block it.3Florida Senate. Florida Statutes 921.141 – Sentence of Death or Life Imprisonment for Capital Felonies
Alabama is the only other state that permits a non-unanimous death recommendation, and Alabama requires ten of twelve. Florida’s eight-juror threshold is the lowest in the nation.
The math at the final sentencing vote:
- Eight or more jurors for death: the jury’s recommendation to the judge is a death sentence.
- Fewer than eight for death: the jury must recommend life imprisonment without the possibility of parole, and the judge is bound by that recommendation.
The 8-of-12 rule governs only the final weighing vote. An earlier step in the process still requires unanimity, and it can end the death penalty question before the eight-vote threshold ever comes into play.
Aggravating and Mitigating Factors
A capital sentencing hearing runs on a fixed sequence. Skipping a step is grounds for reversal on appeal.
Aggravating Factors Come First, and This Vote Must Be Unanimous
Before death is even an option, the prosecution must prove at least one statutory aggravating factor beyond a reasonable doubt, and all twelve jurors must agree it exists. If a single juror disagrees that any aggravating factor has been proven, the death penalty is off the table and the sentence defaults to life without parole.
Florida law limits aggravating factors to a specific list. Commonly invoked ones include:
- A prior conviction for a violent felony or another capital felony.
- A murder committed during another serious felony such as robbery, sexual battery, kidnapping, or arson.
- A murder committed for financial gain.
- A murder that was especially heinous, atrocious, or cruel.
- A murder that was cold, calculated, and premeditated with no moral or legal justification.
- The victim was a law enforcement officer acting in an official capacity.
- The victim was a child under twelve.
- The victim was particularly vulnerable because of advanced age, disability, or the defendant’s position of authority.
The full statutory list includes additional factors, such as killing to prevent an arrest, killing to disrupt a government function, and killing by a designated sexual predator. Prosecutors cannot argue aggravating circumstances outside the statute.
Mitigating Circumstances Are Not Limited by Statute
Once the jury unanimously finds an aggravating factor, the defense presents mitigation. Mitigating circumstances are not restricted to a list. Anything relevant to the defendant’s character, history, or the circumstances of the crime can qualify: a traumatic or abusive childhood, mental health disorders, intellectual limitations short of a formal disability, the defendant’s age, lack of prior criminal history, evidence of remorse. Each juror evaluates mitigation individually, and no agreement among jurors is required on which mitigating factors exist.
The Weighing Vote
The jury then weighs the aggravating factors against the mitigating ones. To recommend death, at least eight jurors must conclude the aggravating factors outweigh the mitigating ones. Fewer than eight means a life recommendation. This is where the 8-of-12 threshold applies.
What the Judge Can and Cannot Do
The jury’s vote is a recommendation. What the judge does with it depends on which way the jury went.
If the jury recommended life without parole, the judge must impose that sentence. No discretion. No override. If the jury recommended death by eight or more votes, the judge can either impose death or reduce the sentence to life without parole. The judge may consider only aggravating factors the jury unanimously found. A judge who imposes death must issue a written order explaining the factual findings that support it.
The asymmetry matters. A judge can save a defendant from death after a jury recommends it, but a judge cannot impose death when the jury recommends life.
Who Cannot Be Sentenced to Death
Some defendants are excluded from the death penalty regardless of the crime or the jury’s findings.
Anyone under eighteen at the time of the offense cannot be sentenced to death. The U.S. Supreme Court held in Roper v. Simmons that executing offenders who were minors when they committed the crime violates the Eighth Amendment.4Constitution Annotated. Amdt8.4.9.8 Minors and Death Penalty This applies in every state.
Florida statute also bars a death sentence for a defendant with an intellectual disability. The law defines this as significantly below-average intellectual functioning (two or more standard deviations below the mean on a standardized IQ test) combined with deficits in adaptive behavior, both present before age eighteen.5Online Sunshine. Florida Statutes 921.137 – Imposition of the Death Sentence Upon an Intellectually Disabled Defendant Prohibited If the court finds by clear and convincing evidence that the defendant meets the definition, death is off the table.
Finally, under Ford v. Wainwright, a person cannot be executed while insane, meaning without a rational understanding of why the execution is happening. This does not prevent a death sentence from being imposed; it prevents the sentence from being carried out until competency is restored.
Where the Law Stands After Court Challenges
The 8-of-12 rule faced immediate challenges under the Sixth Amendment, the Eighth Amendment, and the Equal Protection Clause. In December 2025, the Florida Supreme Court rejected all of them in Jackson v. Florida and held the law constitutional. The court found that the U.S. Supreme Court’s 2020 decision in Ramos v. Louisiana, which required unanimous jury verdicts for criminal convictions, did not extend to the penalty phase of a capital trial. The court also rejected a racial discrimination challenge, finding the defendant had not shown discriminatory intent.
One question remains open: whether the 8-of-12 rule applies retroactively to defendants who were originally sentenced under the old unanimous-jury requirement and are now being resentenced. As of early 2026, the Florida Supreme Court has acknowledged the issue without deciding it. For defendants in that narrow situation, which law applies at resentencing is unresolved.
After a Death Sentence Is Imposed
A Florida death sentence triggers an automatic direct appeal to the Florida Supreme Court. The defendant does not have to request it. The court reviews the trial record for legal errors and can uphold the conviction and sentence, overturn either one, order a new trial, or modify the sentence.
If the direct appeal fails, the defendant can file a post-conviction motion raising issues outside the trial record, most commonly ineffective assistance of counsel, prosecution suppression of favorable evidence, or newly discovered evidence. After state remedies are exhausted, the defendant can seek federal habeas corpus review in federal district court, limited to federal constitutional issues raised in state court. Further appeals can proceed to the U.S. Court of Appeals and, with permission, the U.S. Supreme Court. As of late 2025, approximately 251 people were on Florida’s death row.
Executions are carried out by lethal injection unless the condemned person affirmatively chooses electrocution in writing within thirty days of the Florida Supreme Court’s mandate affirming the sentence.6Online Sunshine. Florida Statutes 922.105 – Execution of Death Sentence If lethal injection is ever held unconstitutional or the state cannot obtain the necessary chemicals, the statute authorizes execution by any method not deemed unconstitutional.7Online Sunshine. Florida Statutes 922.10 – Execution of Death Sentence; Executioner
Executive clemency remains available even after appeals are exhausted. In Florida, the Governor sits on the Board of Executive Clemency with three cabinet members, and a commutation converts a death sentence to life without parole. Clemency is discretionary and rarely granted. The President cannot commute a Florida death sentence; presidential clemency reaches only federal sentences.8U.S. Department of Justice. Commutation Information and Instructions