If the rule of law means anything in Florida in death penalty cases — and is there is ample evidence to question if it does — then the Florida Supreme Court’s recent decisions greenlighting the executions of Michael Zack and Darryl Barwick should also have tolled the death knell for the state’s unconstitutional attempt to reintroduce the death penalty for non-lethal sexual offenses against children.
… If the rule of law means anything in Florida in death penalty cases.
Why?
In 2008, in Kennedy v. Louisiana, the United States Supreme Court unambiguously held that “a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.” The Court explained:
“Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. … [T]he death penalty is not a proportional punishment for the rape of a child.”
Governor Ron DeSantis and the Florida legislature have known from the outset that their death penalty bill was unconstitutional. The unconstitutionality was the point. DeSantis had already stacked the Florida Supreme Court with extremist judges from the Federalist Society who have systematically reversed case precedent that provided substantive and procedural protections for Florida’s death row prisoners.1 Their intent was to flout case precedent, banking on the probability that the conservative supermajority of the U.S. Supreme Court would do the same.
To make sure that the courts did not miss the point, the legislature included in the bill its opinion — denominated a “finding” — that “Kennedy v. Louisiana, 554 U.S. 407, (2008), was wrongly decided and an egregious infringement of the states’ power to punish the most heinous of crimes.”
But whatever the U.S. Supreme Court decides on this issue as a matter of future federal constitutional law, the Florida Supreme Court’s pronouncements in the Zack and Barwick cases compel the conclusion that the new statute cannot survive scrutiny under the Florida Constitution.
In his unsuccessful application to stay his execution, Michael Zack argued that he should be found to be ineligible for the death penalty because he suffered from a mental disability — Fetal Alcohol Syndrome — that the medical community now recognizes as producing mental impairments functionally indistinguishable from those suffered by individuals with intellectual disability. He maintained that the same evolving standards of decency that had persuaded the U.S. Supreme Court in Atkins v. Virginia to prohibit the use of capital punishment in cases of intellectual disability also should bar his execution.
Zack’s claim was similar to two issues raised earlier in the year by Darryl Barwick, who was age nineteen at the time of his offense. Barwick argued, based on new brain science studies, that the U.S. Supreme Court’s prohibition in Roper v. Simmons against the death penalty for juvenile offenders under the age of eighteen should be extended to bar his execution. He also argued for an extension of Atkins to include his “‘trifecta of vulnerabilities’—severe neuropsychological disorder, immutable cognitive impairments, and low mental age at the time of the murder,” which he said left him with deficits “indistinguishable” from those produced by intellectual disability.
In essence, Zack and Barwick asked the Florida courts to exercise independent judgment about the content of the constitutional prohibition against cruel and unusual punishment and, by way of that judgment, to take the next substantive step in the evolution of the evolving standards doctrine.
The Florida Supreme Court’s response was unequivocal: under the “conformity clause” of article I, section 17 of the Florida Constitution2, the court may not be an agent of change in determining whether a punishment is unconstitutionally cruel and unusual. Its analysis may not predict the future nor bring it to pass. Instead, its decisions on cruel and unusual punishment “shall be construed in conformity” with currently established U.S. Supreme Court precedent.
Citing the conformity clause, the court held Barwick’s age-extension claim to be “without merit because this Court lacks the authority to extend Roper.” The clause, the court said:
means that the Supreme Court’s interpretation of the Eighth Amendment is both the floor and the ceiling for protection from cruel and unusual punishment in Florida, and this Court cannot interpret Florida’s prohibition against cruel and unusual punishment to provide protection that the Supreme Court has decided is not afforded by the Eighth Amendment.
Because the Supreme Court has interpreted the Eighth Amendment to limit the exemption from execution to those whose chronological age was less than eighteen years at the time of their crimes, this Court is bound by that interpretation and is precluded from interpreting Florida’s prohibition against cruel and unusual punishment to exempt individuals eighteen or more years old from execution on the basis of their age at the time of their crimes. This Court simply does not have the authority to extend Roper to Barwick based on his age of nineteen at the time of the murder.
The court was equally direct regarding Barwick’s attempt to expand Atkins, writing:
This claim is also meritless because, like Barwick’s Roper extension claim, under the Eighth Amendment conformity clause in article I, section 17 of the Florida Constitution, this Court must interpret Florida’s prohibition against cruel and unusual punishment in conformity with decisions of the Supreme Court, which has limited the categorical ban announced in Atkins so that individuals with mental deficiencies other than intellectual disability are outside the scope of that ban. Just as this Court lacks the authority to extend Roper to individuals over the age of seventeen, it also lacks the authority to extend Atkins to individuals who, like Barwick, are not intellectually disabled as provided in Atkins. Thus, Barwick’s “trifecta of vulnerabilities” does not exempt him from execution.
In its opinion denying Zack a stay of execution, the Florida Supreme Court reiterated that it is powerless to deviate from U.S. Supreme Court evolving standards rulings.
[A]s recognized by Barwick, this Court lacks the authority to extend Atkins to individuals who “are not intellectually disabled as provided in Atkins.” This Court must interpret Florida’s prohibition against cruel and unusual punishment in conformity with decisions of the United States Supreme Court under the conformity clause in article I, section 17 of the Florida Constitution. “This means that the Supreme Court’s interpretation of the Eighth Amendment is both the floor and the ceiling for protection from cruel and unusual punishment in Florida ….”
The only difference between Governor DeSantis’s and the legislature’s argument and the arguments advanced by Zack and Barwick is that the state officials want the courts to shrink rather than expand constitutional protections. But if “the Supreme Court’s interpretation of the Eighth Amendment is both the floor and the ceiling for protection from cruel and unusual punishment in Florida,” both the Florida legislature and the state’s courts lack the authority to lower the floor.
That is the rule of law of Florida.
Multiple decisions by the U.S. Supreme Court have left no room for doubt that the death penalty may not be imposed for crimes against individual victims — including rape, kidnapping, and robbery3 — in which no one is killed. There is no part of the U.S. Supreme Court’s declaration in Kennedy — “a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments” — that affords the governor, the legislature, or the Florida Supreme Court the authority to lower the state constitutional floor in child-victim cases.
That means that the death penalty for non-lethal sexual offenses against children violates the state constitution.
If its prior pronouncements in Barwick and Zack have any meaning, if the language of the state constitution is more than just words, if the Florida Supreme Court is to act and be treated like a real court, it has no choice but to strike down Florida’s attempt to expand its death penalty to non-lethal sex offenses against children. And when it does that, consistent with its conformity clause case precedent, this is what it should say:
Under the Eighth Amendment conformity clause in article I, section 17 of the Florida Constitution, this Court must interpret Florida’s prohibition against cruel and unusual punishment in conformity with decisions of the U.S. Supreme Court, which has limited the use of the death penalty to crimes involving intentional murder. This Court is bound by that interpretation and is therefore precluded from interpreting Florida’s prohibition against cruel and unusual punishment as permitting capital punishment in cases of non-lethal child sexual battery. Just as this Court lacks the authority to extend Eighth Amendment prohibitions on execution to include individuals who are not categorically exempt under existing Supreme Court decisions, it also lacks the authority to extend the death penalty to non-lethal crimes.
Or the rule of law means nothing in Florida.
- The reconstituted court already has:
– receded from its prior decisions that had declared non-unanimous death sentences unconstitutional and reinstated death sentences where non-unanimous death sentences that had been overturned by lower courts were pending on appeal;
– “shredded precedent” by refusing to enforce a U.S. Supreme Court decision that had struck down Florida’s application of an unconstitutional test for evaluating a death-row prisoner’s intellectual disability in most of the cases in which the unconstitutional standard had been applied;
– abandoned a century-old standard for heightened appellate review of convictions that were grounded solely on circumstantial evidence;
– declared that the automatic proportionality review that the court had previously conducted in every capital direct appeal in the state for fifty years violated the state constitution; and
– extended its court-created ban on comparative proportionality review to also bar comparing the relative proportionality of the death sentence imposed an individual case to the more lenient treatment of an equally culpable co-defendant in the same case. ↩︎ - Article I, section 17 of the Florida Constitution states in full: “The prohibition against cruel or unusual punishment, and the prohibition against cruel and unusual punishment, shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution.” ↩︎
- Coker v. Georgia, 433 U.S. 584 (1977) (rape of an adult woman); Kennedy v. Louisiana, 554 U.S. 407 (2008) (rape of a child); Hooks v. Georgia, 433 U.S. 917 (1977) (robbery); Enmund v. Florida, 458 U.S. 782, 797 (1982) (robbery); Eberheart v. Georgia, 433 U.S. 917 (1977) (kidnapping). ↩︎