On March 16, 2017, Aramis Ayala, the first elected state attorney for the state of Florida, announced she would not seek the death penalty against criminal defendants in her jurisdiction, stating: "While I currently do have discretion to pursue death sentences, I have determined that doing so is not in the best interests of this community or in the best interests of justice".  To Ayala, life imprisonment without the possibility of parole achieves better punitive, deterrent, and economic results than the death penalty.  Ayala stated, “Florida’s death penalty has been the cause of considerable legal chaos, uncertainty and turmoil . . . capital punishment often leads to years of appeals and other court hearings, and that it costs more than a life sentence.” 
Within hours of announcing that she would not be seeking the death penalty, Governor Rick Scott issued a notice that he was going to reassign the Loyd case to another state attorney.  Governor Scott said in a statement, “I am outraged and sickened by the loss of life and many families’ lives have been forever changed because of these senseless murders. These families deserve a state attorney who will aggressively prosecute Markeith Loyd to the fullest extent of the law and justice must be served.”
It so goes that, per Governor Scott, the only justice that can be served in Florida, well at least in this case, is the death penalty. And because Ms. Ayala had not pursued the death penalty, she, the first elected African-American state attorney in the state of Florida, was removed in public repugnant fashion. To be clear, the Florida governor has the power to remove a state attorney.  Florida statute 27.14 states: “If any state attorney is disqualified to represent the state in any investigation, case, or matter pending in the courts of his or her circuit or if, for any other good and sufficient reason, the Governor determines that the ends of justice would be best served.” This vested power to remove a prosecutor is of crucial significance given the ethical considerations that indeed occasionally arise when attorneys are tempted to be partial. However, Governor Scott’s use of such power now, for first time during his entire time in office, is suspect. It’s suspect because he has had the opportunity to use such power during his tenure and yet consistently chose not to, see e.g. former, State Attorney Angela Corey’s overly zealous prosecution of Marissa Alexander and mediocre prosecution of George Zimmerman.
In any case, Governor Scott’s questionable decisions aside, here he noticeably overstepped his boundaries in removing state attorney Aramis Ayala from prosecuting Markeith Loyd for murder because Florida law plainly gives every state attorney the discretion on whether or not to seek the death penalty.  A disagreement with Ms. Ayala’s decision, and public disagreement at that, is not simply inappropriate, it’s dangerous and impedes on the promotion and practice of “justice” he vehemently seeks in the name of the fallen victims. His decision to insert himself in this matter inherently serves as a rebuke of prosecutors to perform their jobs independently and worse, may potentially cause other state attorneys to prosecute acts and individuals differently out of fear or political pressure.
While Governor Scott may feel that Markeith Loyd’s actions, as vile and reprehensible as they were, call for the ‘mandatory’ pursuance of the death penalty by a state attorney, the fact of the matter is that there exists no legal standard in seeking the death penalty to which state attorneys are held accountable to.
In 1971, the Supreme Court stated in McGautha v. California, that “to identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.”  The Court, recognizing that death penalty sentencing was capricious, shortly thereafter in 1972 effectively struck down every state death penalty statute, in the landmark case of Furman v. Georgia, holding that the “arbitrariness” of the then existing death penalty procedures violated the Eighth Amendment’s ban on cruel and unusual punishment.  The death penalty is unusual if it discriminates against a defendant by reason of his race, religion, wealth, social position, or if it is imposed under a procedure that gives room for the play of such prejudices. 
In a 5-4 decision, the Court in Furman held that the death penalty was being applied arbitrarily and therefore unconstitutionally.  Each Justice wrote a separate opinion, however the consensus pointed to a lack of standards for imposing the death penalty, thus enabling it to be selectively applied to defendants based on improper criteria. The concern was that the death penalty was being imposed unevenly, infrequently, and often selectively against minorities; markedly so in Furman, where the three petitioners – all black – were sentenced to death.
In describing one way of recognizing arbitrary death sentences, Justice Brennan highlighted the subjective pursuit of the death penalty for particular defendants that strayed away from the usual punishment for the crime committed, stating "there is a substantial likelihood that the State, contrary to the requirements of regularity and fairness embodied in the [Eighth Amendment], is inflicting the punishment arbitrarily."  Arbitrariness of the death penalty represents the inconsistent application of the punishment on specific defendants for identical or similar crimes committed by others. The punishment is often based upon differing characteristics of the defendants and significantly the victims as well. This reality has been documented significantly in various studies of the application of the death penalty applied on defendants based upon their race, gender, and geographic location.
Illustratively highlighting arbitrariness of the death penalty, Justice Marshall in his concurring Furman opinion cited the disparity in the number of death sentences imposed on men over women stating, "There is also overwhelming evidence that the death penalty is employed against men and not women. … It is difficult to understand why women have received such favored treatment since the purposes allegedly served by capital punishment seemingly are equally applicable to both sexes." 
Florida Governor Rick Scott, upon removing state attorney Ayala stated, “it [is] clear that she will not fight for justice and that is why I am using my executive authority to immediately reassign the case to State Attorney Brad King." He was applauded by Orlando Police Chief John Mina, “for standing with law enforcement”  in appointing someone who would apparently seek the death penalty for a “cop killer”.  Orlando Police Lieutenant Debra Clayton, was killed by Markeith Loyd on January 9, 2017, upon confronting Markeith Loyd regarding a murder investigation.  Her murder was senseless; heartless; and deserving of all outcry it has received and should continue to receive in the future.
At the heart of Lieutenant Clayton’s murder however, though perceptibly not the root of calls for a state attorney to seek the death penalty, was the murder of Sade Dixon. Sade was the pregnant girlfriend of Markeith Loyd, whom he murdered on December 13, 2016.  It was her death investigation that led Lieutenant Clayton to question Mr. Loyd on January 9, 2017.  Many articles covering Governor Scott’s removal of Ms. Ayala mention Ms. Dixon’s death as an outlier rather than the foundation for calls of the death penalty  ; candidly some may argue, because her death is simply that; an outlier, to what truly warrants the death penalty - the killing of a police officer.
Conceivably, Ms. Dixon’s murder alone simply would not have garnered Governor Scott’s public call for the death penalty and the removal of a state attorney; no differently from Jordan Davis’s murder for playing loud music at a gas station  ; no differently from Jennifer Alfonso’s murder at the hands of her abusive husband  ; and no differently from Gediaelamir Rivera’s murder by his own father; angry with him because he would not stop crying.  All of these individuals were victims of callous violence in the state of Florida under Governor Scott’s watch; and none of their deaths were accompanied by calls for the death penalty for their murderers. It is this exact type of arbitrariness in the application of the ultimate punishment that the Supreme Court feared and conceded to in 1972; and one that State Ayala avoids by means of not pursuing the death penalty in any of her cases, despite political pressure.
Particularized grief for ‘particular’ victims, i.e., white as opposed to black, or law enforcement as opposed to private citizens, and the insisted upon punishment their culprits should be subjected to base upon such criteria violate principles of fairness and give way to prejudices that violate the eighth amendment. The Eighth Amendment's prohibition on cruel and unusual punishment forbids the arbitrary and capricious application of the death penalty.  As Ms. Ayala seeks to not pursue the death penalty in any of her cases, such questioning as to whether “justice” has been served is unwarranted. Ms. Ayala is undoubtedly competent and she will ensure that Mr. Loyd pays his debt to society, deservedly by spending the rest of his life in prison. She, nor any other prosecutor, should ever feel compelled to allow prosecutorial independence to be obstructed, be it by the general public, politics, and certainly not the Governor.
Rolland Hampton is a 2L at Howard Law. He is originally from Chicago, IL, and graduated from Tuskegee University with a degree in Psychology. He is passionate about civil rights and intellectual property rights.
1 J.D., 2018, Howard University School of Law; B.A., 2008, Tuskegee University.
2 See Monivette Cordeiro, Rick Scott Removes State Attorney Amaris Ayala From Markeith Loyd Case, Orlando Weekly (Mar. 16, 2017), http://www.orlandoweekly.com/Blogs/archives/2017/03/16/rick-scott-removes-state- attorney-aramis-ayala-from-markeith-loyd-case
3See Avalon Zoppo, Florida Governor Replaces Markeith Loyd Prosecutor Over Death Penalty Protest, NBC News, Mar. 16, 2017, 8:09 PM), http://www.nbcnews.com/news/us-news/florida-governor-replaces-markeith-loyd-
5 See J.D. Gallop & Associated Press, Death Penalty Stance In Marketih Loyd Case Draws Criticism, Florida Today, (Mar. 16, 2017), http://www.floridatoday.com/story/news/local/2017/03/16/gov-reassigns-markeith-lloyd- case/99270568/
7 FL ST § 27.14 Assigning state attorneys to other circuits
9 State v. Bloom, 497 So. 2d 2, 3 (Fla. 1986) (Under Florida's constitution, the decision to charge and prosecute is an executive responsibility, and the state attorney has complete discretion in deciding whether and how to prosecute.)
10 McGautha v. California, 402 U.S. 183, 205 (1971).
11 Furman v. Georgia, 408 U.S. 238 (1972) (holding the death penalty as applied currently in the states as violating the Eighth Amendment).
12 Id. at 242 (Douglas, W., concurring).
14 Id. at 276–77 (Brennan, J., concurring).
15 See e.g., David Baldus, et al., Arbitrariness And Discrimination In The Administration Of The Death Penalty: A Challenge To State Supreme Court," 15 Stetson L. Rev. 133 (1986); J. Donohue, "An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?," 11 Journal of Empirical Legal Studies (Dec. 2014); John Blume, Theodore Eisenberg, and Martin T. Wells, Explaining Death Row's Population and Racial Composition, Journal of Empirical Legal Studies, Volume 1, Issue 1,165-207, March 2004.
16 Furman v. Georgia, 408 U.S. 238, 365 (1972).
17 See Avalon Zoppo, Florida Governor Replaces Markeith Loyd Prosecutor Over Death Penalty Protest, NBC News, Mar. 16, 2017, 8:09 PM), http://www.nbcnews.com/news/us-news/florida-governor-replaces-markeith-loyd- prosecutor-over-death-penalty-protest-n734551.
20 See Steve Almasy, Orlando Officer Debra Claton Remembered As A Difference Maker, CNN News, (Jan. 14, 2017), http://www.cnn.com/2017/01/14/us/orlando-officer-debra-clayton-funeral/index.html
21 Supra note 2.
23 Id. (“who also [happened] to kill his pregnant girlfriend”).
24See Richard Luscombe, Michael Dunn Sentenced To Life Without Parole For Killing Of Florida Teenager, The Guardian (Oct. 17, 2014), https://www.theguardian.com/us-news/2014/oct/17/michael-dunn-sentenced-life- without-parole-florida
25 See Crimesider Staff, Convicted Fla. “Facebook Killer” Sentenced To Life In Prison, CBS News (Fed. 8, 2016), http://www.cbsnews.com/news/florida-facebook-killer-derek-medina-who-killed-his-wife-posted-photo- sentenced/
26 See Crimesider Staff, Cops: Dad Confesses To Killing Infant, Leaving Body In Woods, CBS News (Dec. 23, 2016), http://www.cbsnews.com/news/gene-anthony-quinones-rivera-cops-dad-admits-killing-infant-leaving-body-in- woods/
27 U.S. Const. amend. VIII.