Judicial killing: American-style

from The Washington Post....

Florida weighs whether to overturn death
sentences for nearly 400 inmates

By MARK BERMAN | 8:13PM EDT - Thursday, May 05, 2016

People opposed to the death penalty and reporters gathered near the Florida State Prison in 2014.
— Photograph: Matt McClain/The Washington Post.

FLORIDA has more death row inmates than nearly any other state in the country, and it remains a bastion of capital punishment as fewer executions are carried out nationwide. But after a frantic few months that saw Florida's system of imposing death sentences struck down and rewritten, it remains an open question what will happen to the hundreds who remain on the state’s death row — and how much longer any of them will stay there.

On Thursday, the Florida Supreme Court heard arguments in a case that could lead to nearly 400 death-row prisoners receiving life sentences, a move experts say could be the country's single biggest jettisoning of death sentences in decades.

“We're looking at potentially the largest number of death sentences being vacated at a single time since the early 1970s,” said Robert Dunham, executive director of the Death Penalty Information Center.

The uncertain situation dates back to January, when the U.S. Supreme Court struck down Florida's unique system of imposing death sentences as unconstitutional because it let judges, rather than juries, make the final call. Florida promptly revamped its death penalty, which Governor Rick Scott (Republican) said at the time would let “allow families of these horrific crimes to get the closure they deserve.”

Left unanswered, though, was whether this Supreme Court ruling was retroactive and if it could ultimately empty Florida’s death row, the second-biggest in the country after California's.

The case in question on Thursday involves Timothy Lee Hurst, who was convicted of murdering his co-worker in 1998. According to court records, Cynthia Harrison's body was discovered bound, gagged and stabbed more than 60 times at a Popeyes restaurant in Pensacola, Florida, where she worked with Hurst.

State authorities argue that Hurst should not receive a life sentence, while Hurst's attorneys say that under state law, he must be sentenced to life in prison.

“This court really has, I hate to say it's an easy job, but it's a fairly straightforward one,” David A. Davis, an assistant public defender, told the justices.

Timothy Lee Hurst in an undated picture from the Florida
Department of Corrections. — Photograph: Reuters.

Davis's perspective was backed up earlier this week in an amicus brief filed by high-profile legal figures and groups in Florida, who argued that Hurst and anyone else previously sentenced to death for capital felonies in the state should be sentenced to life.

The group that filed this brief, which included three former chief justices of the Florida Supreme Court, pointed to a state statute requiring that death sentences be replaced by life sentences if “the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court.”

Pam Bondi, the Florida attorney general, has disagreed with this, arguing in court filings that the Supreme Court “struck a portion of the [sentencing] statute as a means of imposing a constitutional sentence” rather than the actual death penalty.

The state's statute did not intend to reduce all death sentences to life sentences “any time any aspect of the statute is held to be unconstitutional,” Bondi, a Republican, wrote in the filing. Bondi declined through a spokesman to be interviewed for this story. Some of the state's prisoners have been on death row for decades.

On Thursday, Carine L. Mitz, an assistant Florida attorney general, said she did not think Hurst, or anyone in his shoes, should be given a life sentence. “I still don't think we have a problem,” she told the justices.

The justices also expressed concerns that the new sentencing measure may still not be enough to provide constitutional protections to defendants.

“If we want a death penalty in Florida, we need it to be constitutional,” Justice Barbara J. Pariente said.

The justices also heard arguments in February about the question of whether or not the Supreme Court's ruling was retroactive. Depending on how the seven-member court rules, the decision could wind up altering the sentences for all 389 of the state's death-row inmates or just those who are at a certain point in their appeals process.

“There's going to be an effect to the Hurst decision,” said O.H. Eaton Jr., a death penalty expert and retired Florida judge who heard more than 20 capital cases while on the bench. “What is it going to be? It could be anything from a minor effect all the way to clearing out death row.”

It was not immediately clear when the justices would rule, but Eaton, speaking via telephone from his home outside Orlando, said it could be expected within two to three months.

Eaton said he assumed the decision would “take care of the vast majority of the cases,” but he added: “And I never predict what lawyers are going to do, lawyers and juries and judges.”

Dunham said that even if the justices only eliminate death sentences for the dozens of people believed to have cases on direct appeal, it would still be among the biggest single instances of death sentences being scuttled.

If all of Florida’s death sentences are overturned, Dunham said it would be the biggest such reversal since 1972, when the U.S. Supreme Court essentially struck down the death penalty in Furman v. Georgia. After that ruling, more than 600 death-row sentences were spared, according to the Death Penalty Information Center.

“It shouldn't make any difference if it's 15 people or 400 people based on the law,” said Sonya Rudenstine, an attorney in Gainesville, Florida, who works on post-conviction issues in capital cases and criminal appeals. “People may have a very different response emotionally, but the court's response is to put emotion aside.”

A move to empty Florida's death row would reverberate beyond that state, because it is home to a sizable proportion of the nearly 3,000 people on death row nationwide.

“It's significant, because what you're looking at is more than 10 percent of the people still on death row unconstitutionally sentenced to death,” Dunham said. “When one talks about the arbitrariness of the death penalty, the recognition that 10 percent of everybody who is there should not be there under the law, that recognition is a pretty strong statement that the death penalty is arbitrarily applied.”

In court on Thursday, Hurst's attorney sought to keep the focus on his client rather than the larger implications of their ruling.

“I don't want to presume to speak for all of the… people on death row,” Davis said. “I'm representing Timothy Hurst, and I just want to limit this to Timothy Hurst.”

Hurst also brought the case to the U.S. Supreme Court that ended with the justices striking down Florida's death-sentencing system in January. Florida's death penalty effectively ground to a halt after the Supreme Court's ruling in the Hurst v. Florida case, which prompted lawmakers to rework the sentencing statutes.

The new law says that at least 10 jurors have to recommend a death sentence, and it scraps the old language saying that a judge could determine the sentence “notwithstanding the recommendation of a majority of the jury.”

While death sentences and executions are increasingly rare across the country, Florida is an outlier. The state is one of only three that have carried out an execution in each of the past five years, along with Texas — which, like Florida, has also carried out an execution this year — and Oklahoma, where executions have been on hold since authorities obtained the wrong drug for a lethal injection there last fall.

A spokesman for the Department of Corrections said that it will “follow the order of the court,” whatever the justices decide. If executions do resume in Florida, corrections officials say they do have lethal injection drugs in its possession, but they said they would not release how much the department has or when they expire.

• Mark Berman covers national news for The Washington Post and anchors Post Nation, a destination for breaking news and stories from around the country.

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