The Florida Supreme Court Is Radically Reshaping Death Penalty Law

As the pandemic has raged across Florida, with more than 1.2 million infected and 21,000 dead, the state’s Supreme Court has been on a rampage of its own, issuing an unprecedented string of opinions that removes important safeguards designed to protect defendants facing the death penalty — an alarming development in the state with the most death row exonerations in the country, where death penalty practices have repeatedly been deemed unconstitutional by the U.S. Supreme Court.

“Today, the majority takes the most consequential step yet in dismantling the reasonable safeguards contained within Florida’s death penalty jurisprudence,” Florida Supreme Court Justice Jorge Labarga wrote in opposition to a decision handed down in late October. “I could not dissent more strongly.” It was the most recent in an increasingly agitated line of dissenting opinions Labarga has penned in response to a new conservative majority that has cavalierly tossed aside years of precedent, which experts say will weaken judicial oversight in capital cases.

Since being sworn in as governor in 2019, Ron DeSantis has reshaped the state’s highest court, turning a moderate panel into what some now consider the most conservative state supreme court in the country. Amid the pandemic, the newly reconstituted court has issued four consequential rulings eliminating legal guardrails meant to ensure that capital cases do not run afoul of constitutional protections, including the ban on cruel and unusual punishments.

“There’s no delicate way of saying this: The court has lost its legitimacy,” said Robert Dunham, executive director of the Death Penalty Information Center. “It is clearly no longer a neutral arbiter. The justices were handpicked for their far-right-wing beliefs, and they are aggressively substituting their views … in place of well-established law, and they are systematically dismantling necessary protections in capital cases.”

Palm Beach County Circuit Court Judge Jorge Labarga holds up a booklet about the Constitution of the United States that he received while in law school, Nov. 17, 2000.

Judge, Jury, Executioner

The current unraveling of Florida’s death penalty precedents dates back to a 2016 decision by the U.S. Supreme Court in a case called Hurst v. Florida. There, the court ruled 8-1 that Florida’s death penalty scheme was unconstitutional because it treated a jury’s decision on sentencing as merely “advisory” and instead gave the trial judge power to determine the case facts necessary to impose a death sentence. The Constitution, the U.S. Supreme Court ruled in Hurst, requires a jury to make those determinations. “The Sixth Amendment protects a defendant’s right to an impartial jury,” Justice Sonia Sotomayor wrote for the majority. “This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s factfinding.”

The case was kicked back to the state, and after further consideration, the Florida Supreme Court — led by then-Chief Justice Labarga — issued an exhaustive opinion concluding that the U.S Supreme Court’s decision, in concert with state law, meant that all factors relating to the imposition of the death penalty must be decided by a jury. The jury would need to decide if the murder in question was aggravated, making a defendant eligible for a death sentence in the first place: whether the crime was especially “heinous, atrocious or cruel,” for example, or committed during the course of another crime, like robbery or rape. And jurors would have to consider whether there was any evidence that might mitigate a defendant’s culpability, like whether the person had brain damage. They would then weigh mitigating evidence against the aggravating factors to decide whether to impose a sentence of life or death. Moreover, the Florida high court concluded, those jury decisions must be unanimous; before the Hurst case, a simple 7-5 majority could vote to recommend a death sentence.

Justice Charles Canady, who was a four-term U.S. representative and general counsel for Gov. Jeb Bush before joining the high court in 2008, disagreed with his colleagues, arguing that their interpretation of the U.S. Supreme Court’s holding was too broad. In his dissent, Canady wrote that the only thing jurors should be required to find are the “facts” of the case — that is, an aggravating factor that would make a person eligible for the death penalty. Anything beyond that, he argued, constituted subjective “determinations” about whether a death sentence should be imposed and thus, was not for a jury to decide. “In short, the majority fundamentally misapprehends and misuses” the U.S. Supreme Court’s ruling, Canady wrote, “thereby unnecessarily disrupting the administration of the death penalty in Florida.”

The court’s majority ruling brought Florida in line with how most death penalty states operate in determining whether to impose the ultimate punishment. Currently, Alabama is the only state that allows a non-unanimous jury to impose a death sentence. In response to the ruling, the Florida Legislature codified the unanimous jury requirement.

The ruling also meant that up to half of the nearly 400 people on the state’s death row at the time could be eligible for resentencing since they had been condemned under the old unconstitutional system. To date, there are roughly 100 individuals waiting for resentencing. So far, the majority of those whose cases have been resolved were resentenced to life in prison; two have been exonerated.

People file into the Florida Supreme Court in Tallahassee, Fla., on March 4, 2015.

Logical Contradictions

Amid the disruption the Hurst decision created for the state’s capital punishment system, voters elected DeSantis, a former congressman and ardent supporter of President Donald Trump, as their new governor. Under Florida law at the time, judges faced forced retirement at age 70, and three of the state’s seven Supreme Court justices had hit that mark as DeSantis came into office. (The retirement age was subsequently raised to 75.)

As Trump has also done, including with his three picks for the U.S. Supreme Court, DeSantis turned to the conservative Federalist Society (he’s a longtime member) to help fill those seats. Two of his handpicked judges were then elevated to the federal bench by Trump, giving DeSantis a total of five picks for the state’s highest court. The current court has six men and one woman; the majority of the court is white. For the first time in nearly 40 years, there are no Black justices on the court.

For the first time in nearly 40 years, there are no Black justices on the court.

Over the last year, this newly conservative panel has devoted a good amount of time to undoing precedents that provide safeguards to capital defendants — beginning with a January opinion that walked back the court’s position in the Hurst case. In its opinion in State v. Poole, the court essentially adopted the position previously advocated by Canady, who is now the chief justice. The court ruled that a jury need only find a single aggravating factor and opined that there is no need for a unanimous jury — signaling to the Florida Legislature that, if it wanted to, it could remove that provision from state law.

Charles Canady, center, takes the oath of office as he is sworn in as Florida Supreme Court justice by Justice Charles Wells, right, during ceremonies in Tallahassee, Fla., on Dec. 3, 2008.

The court made clear that not only was there no Sixth Amendment problem with its decision, but also that nothing about its conclusions in Poole would offend federal or state constitutional protections against cruel and unusual punishments. “Lest there be any doubt, we hold that our state constitution’s prohibition on cruel and unusual punishment … does not require a unanimous jury recommendation — or any jury recommendation — before a death sentence can be imposed.”

Labarga, who has become a regular, lone voice of dissent, wrote that the court’s decision would return Florida to an “absolute outlier” among death penalty states. “The majority removes an important safeguard for ensuring that the death penalty is only applied to the most aggravated and least mitigated of murders,” he wrote.

A few months later, in May, the court eliminated two additional protections for capital defendants.

In Bush v. State, the court tossed aside decades of precedent by eliminating a rule requiring the courts to apply extra scrutiny to cases in which evidence of guilt is entirely circumstantial, calling the longstanding practice “unwarranted” and “confusing.”

In determining this was the right thing to do, the court employed logic diametrically opposed to its reasoning in the Poole case. There, the court wrote that there was no issue with rendering Florida an outlier among death penalty states by walking away from a requirement that jurors make unanimous sentencing findings — after all, the justices reasoned, Florida is its own system and isn’t beholden to what other courts do. But in Bush, the majority found that since Florida’s circumstantial evidence rule is uncommon and “out of sync” with courts across the country, it should be eliminated. Again, Labarga dissented: “Today, this Court eliminates another reasonable safeguard in our death penalty jurisprudence and in Florida’s criminal law across the board.”

The court struck again just a week later in Phillips v. State, declaring that an updated method for determining whether a defendant is intellectually disabled should not be applied retroactively. There has been a categorical ban on executing intellectually disabled people since 2002, when a 6-3 majority of the U.S. Supreme Court ruled that the practice violated the Eighth Amendment’s prohibition on cruel and unusual punishments. But the court left it to the states to devise their own methods of determining which defendants are disabled, which has led to myriad approaches and plenty of additional litigation, including in Florida.

“I write to underscore the unraveling of sound legal holdings in this most consequential area of the law.”

In 2014, the U.S. Supreme Court found Florida’s scheme for determining intellectual disability unconstitutional, in part because it relied heavily on IQ scores and considered a score of 70 to be the high-end cutoff for intellectual disability without taking into account the test’s margin for error. Two years later, the Florida Supreme Court ruled that changes prompted by the U.S. court’s ruling should be made retroactive — after all, the ban is absolute, and defendants judged under the previous approach might have been placed in jeopardy by the state’s unconstitutional practices. Canady dissented from the opinion, only to have his reasoning adopted when the new court decided the Phillips case in May.

The court ruled that the changes in law resulting from the 2014 U.S. Supreme Court case did not constitute a “development of fundamental significance” that would warrant retroactivity. Instead, the court wrote, making them retroactive would pose an “ongoing threat of major disruption to application of the death penalty.”

Again, Labarga came out swinging. “The result is an increased risk that certain individuals may be executed, even if they are intellectually disabled,” he wrote. “I write to underscore the unraveling of sound legal holdings in this most consequential area of the law.”

Finally, in late October, the court dropped one more bomb, doing away with the longstanding practice of proportionality review, an effort to ensure that death sentences are limited only to the worst-of-the-worst, least mitigated of murders. Since 1995, proportionality review has led Florida’s high court to overturn death sentences in at least 11 cases.

But in its ruling, the court wrote that the only justification for such a review would be to ward against unconstitutionally cruel and unusual punishments. Since the U.S. Supreme Court has never said that proportionality review is required under the Eighth Amendment, the majority concluded, it is not allowed under Florida law. (The state Legislature could require the review by statute, the court wrote, though it was quick to explain that it had “no opinion as to whether … it should adopt such a requirement.”)

Labarga decried the opinion and noted that, taken together, the court’s recent death penalty decisions had radically reshaped judicial oversight of capital cases. “I deeply, regretfully, and most respectfully dissent,” he wrote.

Protesters demonstrate against the death penalty across the highway from the Florida state prison near Starke, Fla., on Oct. 1, 2013.

A Lust for Power

Stephen Harper, a law professor and supervising attorney of the Death Penalty Clinic at Florida International University, finds the court’s recent decisions deeply troubling. “The death penalty is the most consequential … area of the law, so you have to have extra precautions,” he said. And the current Florida Supreme Court is “just going backwards,” providing fewer protections for defendants facing the ultimate punishment.

If anything, Florida’s experience with the death penalty suggests that it needs more oversight, not less. Last year, The Intercept compiled a dataset with information on more than 7,000 people sentenced to die in 29 states and the federal system since capital punishment was reauthorized in 1976. The data reveals capital punishment as an arbitrary, racist, and failed public policy — including in Florida.

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Although Black people make up roughly 16 percent of the state’s population, more than 37 percent of those sentenced to die in Florida are Black. Of the nearly 1,000 people sentenced to die since 1976, a staggering 53 percent are no longer on death row, but not because they were executed — 412 people have been resentenced to a lesser punishment, 82 have died awaiting execution, and 59 have been released from prison altogether. The state has executed 88 people. Thirty of the state’s formerly condemned have been exonerated.

Among the issues Harper finds most disturbing is how blithely the court is doing away with years of precedent. In knocking out proportionality review, for example, the court tossed aside 50 years of precedent; in doing away with extra scrutiny of cases based on circumstantial evidence, the court rejected a century of precedent. “Taken together, the court has ignored the fundamental concept of stare decisis, and that creates a problem because the court loses its credibility, it loses the legal stability, it loses the predictability that lawyers and clients have when they go to court and argue an issue,” he said.

Stare decisis demands a certain fidelity to precedent, but the Florida Supreme Court has been on a kick of overturning established legal rules simply because it disagrees with them. “To me, as a lawyer, that’s just outrageous,” Harper said. “To reverse a decision, we demand a special justification over and above the belief that the precedent was wrongly decided.” The court has used an array of logic to justify overturning its precedents, which Harper considers disingenuous and politically motivated. He sees Canady as a ringleader driven by a narrow view of the law that bends away from criminal defendants and favors executions. “I think he’s a very dangerous and nasty man,” he said.

Harper considers the court’s decisions activist in nature — an irony, perhaps, given that conservative justices rail against so-called judicial activism, an idea embodied in the Federalist Society’s position that courts should say what the law is “rather than what they wish it to be.”

“Once the law becomes a vehicle for exercising power, instead of a vehicle for exercising restraint, you have lost the courts.”

“I’ve never seen such an active court with a bunch of conservative justices, because the court is clearly active,” he said. “By reversing, reversing, reversing, reversing against stare decisis, that’s a very active court.”

Dunham, of the Death Penalty Information Center, agrees, calling the court’s recent rulings “inherently contradictory and hypocritical.” On the one hand they’ve argued that safeguards should be removed because Florida was one of the only states to provide them, while on the other hand taking “unparalleled action” to put the state in the “extreme minority” by denying other protections, like those that would ensure the state doesn’t execute a person with intellectual disabilities. “That’s the mark of political activism,” he said. “There is no question that what the court is doing is driven by a desire to carry out executions, irrespective of whether they’re appropriate or not.”

Both Harper and Dunham worry that the court’s actions will place vulnerable defendants in greater jeopardy. And Dunham notes that the court’s “unparalleled, extreme actions” may have the effect of placing the future of Florida’s death penalty statute at risk. “The Constitution requires that the death penalty be administered in a manner that’s not arbitrary and capricious” and that provides for meaningful appellate review. “This court has made the administration of the Florida death penalty arbitrary” by dismantling important appellate protections, he said.

“Once the law becomes a vehicle for exercising power, instead of a vehicle for exercising restraint, you have lost the courts,” he said. “This is a court that has entirely lost its legitimacy. It is acting purely out of a lust for power and a lust for substituting its judgment for the law.”