Conservative FL Supreme Court justices are making it easier for the state to put people to death

By: - November 6, 2020 7:00 am
Florida Supreme Court

Florida Supreme Court. Credit:

Florida’s newly conservative Supreme Court has reversed one of its own precedents in a death penalty case for the fourth time this year — the latest being a move that could speed the execution of a severely mentally ill inmate.

Each time, justices appointed by Gov. Ron DeSantis have joined with other conservative justices to make it easier for the state to put people to death.

The court did so by invoking the “textualist” principles much lauded by the Republican governor, who looks to the conservative Federalist Society for Law and Public Policy Studies for guidance on judicial appointments. Textualism means ostensibly interpreting the words of a statute or constitutional provision as written.

The precedent in question, discarded in the most recent ruling, is intended to prevent courts from handing down death sentences in circumstances that don’t align with other death sentences handed down in the state. It’s called “proportionality review.”

An editorial in the South Florida Sun-Sentinel called it: “A day of infamy at Florida’s Death Court.”

The editorial board wrote: “Over one anguished dissent, five arch-conservative justices discarded a nearly 50-year-old precedent in order to approve more executions, not caring whether the prisoners actually deserve to die. The justices renounced their duty to review death sentences for proportionality — that is, whether execution would be too severe in comparison to other cases.”

In earlier rulings, the court reversed its own requirement for unanimous jury verdicts to impose death sentences; lowered the legal standard for weighing circumstantial evidence; and made it easier to execute someone with intellectual disabilities. Additionally, the court reversed a year-old decision and imposed tighter standards for determining the admissibility of expert testimony.

But the approach toward “stare decisis” — respect for precedent, so that people know what the law requires of them — could pressage reversal in other areas, including abortion rights, gun control, and political redistricting.

Justice Jorge LaBarga of the Florida Supreme Court. Credit: Supreme Court

As he had done in the earlier rulings, Justice Jorge LaBarga, a holdover from the more liberal court of old, issued an ardent dissent in the latest case.

“I lamented the erosion of our death penalty jurisprudence” in those earlier rulings, he wrote.

“Now today, the majority jettisons a nearly 50-year-old pillar of our mandatory review in direct appeal cases. As a result, no longer is this court required to review death sentences for proportionality. I could not dissent more strongly to this decision, one that severely undermines the reliability of this court’s decisions on direct appeal, and more broadly, Florida’s death penalty jurisprudence,” he wrote.

Murder spree

In this case, the 5-1 unsigned ruling handed down on Oct. 29 could speed the execution of Jonathan Huey Lawrence in the grisly 1998 first-degree murder of Jennifer Robinson in Santa Rosa County. It was among one attempted and two actual murders he’d been involved in over a matter of weeks, but his attorneys argued he suffers from schizophrenia and schizoaffective disorder.

Writing on his Twitter feed, Slate justice reporter Mark Joseph Stern, called the ruling “an earthquake in Florida’s criminal justice system.”

He wrote: “This decision is a HUGE deal. The Florida Supreme Court has long reviewed death sentences for proportionality. But five conservative justices just decided they didn’t like that rule, so they tossed it out the window.”

Justice Jamie Grosshans, added to the court by Gov. Ron DeSantis last month, did not participate in the case. Hers was among the appointments the governor has used to swing the court’s jurisprudence to the right following the mandatory retirement of three more liberal justices.

Lawrence’s attorneys cited a precedent the court established in 1973 requiring proportionality review.

It’s predicated, Labarga wrote, “at least in part on the recognition that death is a uniquely irrevocable penalty, requiring a more intensive level of judicial scrutiny or process than would lesser penalties.”

Labarga argued the review promoted consistency.

Florida Supreme Court Chief Justice Charles Canady. CD Davidson-Hiers/Florida Phoenix

However, the majority concluded that proportionality review isn’t authorized under the Florida Constitution. These justices cited a “conformity clause,” added to the state Constitution in 2002, that requires adherence to U.S. Supreme Court rulings on constitutional matters.

The U.S. Supreme Court ruled in 1984 that these reviews aren’t required. Therefore, the majority said, the state high court has been reviewing death cases under this standard in out of conformity with the Florida Constitution.

“Post-conformity clause, we have wrongly continued to enforce a state-law requirement for comparative proportionality review and have wrongly written this requirement into our procedural rules governing the scope of our appellate review,” the majority wrote.

“We cannot judicially rewrite our state statutes or Constitution to require a comparative proportionality review that their text does not. Nor can we ignore our constitutional obligation to conform our precedent respecting the Florida Constitution’s prohibition against cruel and unusual punishment to the Supreme Court’s Eighth Amendment precedent by requiring a comparative proportionality review that the Supreme Court has held the Eighth Amendment does not.”

State Attorney General Ashley Moody had urged the court to take that step.

Florida Attorney General Ashley Moody. Credit: Official photo, office of Attorney General.

“[E]ven if Florida’s death penalty statute mandated proportionality review, all that would mean is that that particular provision of the statute would be unconstitutional under the state’s conformity clause,” her brief says. “The state Constitution, obviously, would trump any state statute. A state statute is not a legitimate basis for ignoring the state Constitution. This court should recede from [the precedent] to comply with the state’s constitutional conformity clause.”

The majority in the case at hand defended discarding the precedents.

“Higher legal authority”

“In a case where we are bound by a higher legal authority — whether it be a constitutional provision, a statute, or a decision of the [U.S.] Supreme Court — our job is to apply that law correctly to the case before us. When we are convinced that a precedent clearly conflicts with the law we are sworn to uphold, the precedent normally must yield,” those justices wrote.

The court had upheld proportionality review as recently as 2014, in a case called Yacob v. State, with now-Chief Justice Charles Canady dissenting. This time, the majority expressly cited a dissent Canady filed at the time, saying the court should have listened to him then.

The majority added that eliminating the proportionality review won’t matter to defendants because they “do not alter their behavior in expectation of such review. In contrast, victims and the state have strong interests in this court’s upholding death sentences obtained in compliance with [state law,]” they also argued.

Labarga, however, insisted that the U.S. Supreme Court did not expressly forbid state courts to conduct proportionality review and in fact said the process creates an additional safeguard to the death penalty process, which in Florida includes mandatory review of all death sentences by the state high court.

“Further supporting my conclusion that the majority’s decision is a highly unfortunate departure from settled law is the fact that proportionality review is conducted in a majority of other death penalty states. Twenty-five states currently impose the death penalty. Sixty percent of those twenty-five states, not including Florida, conduct a proportionality review,” he wrote.

“I deeply, regretfully, and most respectfully dissent.”

As for the court’s attitude toward precedent, in the past it overturned them only when they had proved unworkable, when reversal wouldn’t impose injustice to people who relied upon them, and when changed circumstances rendered them “utterly without legal justification.”

“The presumption in favor of stare decisis is strong, and where the decision in issue was a watershed judgment resolving a deeply divisive societal controversy, the presumption in favor of stare decisis is at its zenith,” the court said in 2003.

The new majority established its intentions in State v. Poole, it’s unanimous-verdict ruling.

“We believe that the proper approach to stare decisis is much more straightforward. In a case where we are bound by a higher legal authority — whether it be a constitutional provision, a statute, or a decision of the [U.S.] Supreme Court — our job is to apply that law correctly to the case before us. When we are convinced that a precedent clearly conflicts with the law we are sworn to uphold, precedent normally must yield.”

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.