TALLAHASSEE (CBSMiami/NSF) – More than 100 inmates condemned to death could face a major upheaval, as a revamped Florida Supreme Court ponders whether to undo a 2016 ruling that allowed nearly half of the state’s Death Row prisoners to have their death sentences revisited.
With a conservative bloc of justices led by Chief Justice Charles Canady now in the majority, the court has begun the process of reconsidering whether changes to Florida’s death penalty-sentencing system should continue being applied retroactively to cases dating to 2002.
The court’s reopening of the retroactivity issue, which came in an April 24 order, sent shockwaves through the state’s death-penalty legal community.
“This is judicial activism. The right has always complained about judicial activism and not wanting judicial activist judges. But when you don’t respect precedent, that really is the judicial activism,” Marty McClain, a lawyer who has represented hundreds of defendants in death-penalty cases, told The News Service of Florida in a telephone interview.
The high court’s latest move is part of continuing fallout from a January 2016 U.S. Supreme Court decision, in a case known as Hurst v. Florida, which found the state’s method of sentencing prisoners to death was unconstitutional.
McClain and other defense lawyers who specialize in the death penalty point to a legal principle, known as “stare decisis,” in which judicial decisions are based on precedent. Courts rarely depart from the doctrine.
“The reason for precedent is to bring stability and predictability to the law. And when you stop respecting precedent, it’s like, what? There’s no stability. You have no idea what you can and cannot do,” McClain said.
But Brad King, the state attorney for the 5th Judicial Circuit, which is based in Ocala, told the News Service that reversing the current process “will no more destabilize the law than the current, crazy, retroactivity rule has destabilized the law.”
The U.S. Supreme Court ruling found the state’s process of allowing judges, instead of juries, to find the facts necessary to impose the death penalty was an unconstitutional violation of the Sixth Amendment right to trial by jury.
The decision in the Hurst case, premised on a 2002 case known as Ring v. Arizona, led to a change in Florida law requiring unanimous jury findings of fact and unanimous jury recommendations for death sentences to be imposed.
The revised law, however, did not address the issue of whether the unanimous requirements should be applied retroactively to older cases, so the state court stepped in.
In a pair of critical death penalty decisions issued Dec. 22, 2016, the Florida Supreme Court decided the Hurst decision should apply retroactively to cases that were final after the 2002 Ring ruling. Re-sentencing should only be an option for cases in which jury recommendations for death were not unanimous, the court also decided.
“In this instance … the interests of finality must yield to fundamental fairness,” the majority wrote in the case of John Mosley, convicted of murdering his girlfriend and their infant child in 2004. “Because Florida’s capital sentencing statute has essentially been unconstitutional since Ring in 2002, fairness strongly favors applying Hurst, retroactively to that time.”
But in a sharply worded dissent joined by Justice Ricky Polston, Canady scolded the majority for departing from precedent in the 5-2 decision that applied Hurst retroactively.
As it did in previous cases, the court should have viewed Hurst as “an evolutionary refinement,” and thus “a new rule that should not be given retroactive application,” Canady argued.
“A decision that simply ignored existing precedent will rarely be entitled to any more weight as a precedent than the weight it afforded to the authority it ignored,” he wrote.
Canady, a former Republican state representative and congressman from Lakeland, at the time was one of two justices who frequently parted ways with the court’s more-liberal majority.
But three members of the longstanding court majority, Barbara Pariente, R. Fred Lewis and Peggy Quince, were required to step down early this year because of a mandatory retirement age. New Republican Gov. Ron DeSantis quickly replaced them with justices Robert Luck, Barbara Lagoa and Carlos Muniz.
As a result, Canady now presides over a conservative bloc of six jurists, with Justice Jorge Labarga the lone holdover from the old majority.
Late last month, the court ordered lawyers in the case of Death Row inmate Duane Eugene Owen to file briefs addressing the retroactivity issue.
In a brief filed last week, lawyers for Owen argued that retroactivity should apply to all death penalty cases, not only to those that were final after Ring was decided. That would mean also applying the new sentencing requirements to cases that became final before 2002.
But they also stressed that the court, at a minimum, should keep in place the current process of reconsidering cases after 2002. They said the analyses involved in whether to overturn precedent “bolster the strong presumption in favor” of maintaining the process.
Declaring Hurst “entirely non-retroactive would do serious injustice to the scores of capital defendants who have spent countless time and energy challenging their unconstitutional death sentences,” they added.
According to the Death Penalty Information Center, 154 of the state’s Death Row prisoners were eligible for resentencing following the 2016 rulings. Since then, 29 inmates have had death sentences overturned and received sentences of life in prison without parole, and four have been resentenced to death. Many prosecutors may not have sought the death penalty a second time, because the cases were too old or because juries were narrowly split on whether to recommend death the first time.
“I think the issue comes down, in my view, to justice versus procedural finality. And this court seems to be more concerned about procedural finality,” said Florida International University law professor Stephen Harper, executive director of the school’s Florida Center for Capital Representation.
But prosecutor King, who was instrumental in crafting the state’s response to Hurst, said the Florida majority’s 2016 decisions ignored long-standing precedent on when retroactivity should be applied.
The Canady court will have to balance “which is more important — having the law stable and not changing the law, or having the law be right,” said King, whose circuit is made up of Citrus, Hernando, Lake, Marion and Sumter counties.
The court’s order for briefs in the Owen case has rattled defense lawyers, some of whom are scurrying to seek rehearings for Death Row inmates in the hope of having sentences reduced to life in prison before the court finalizes a decision on retroactivity.
“The lawyers with pending resentencing cases are concerned about what the court might do. The people who have had their clients already resentenced are in a state of confusion about how the court’s opinion might impact them, as well,” Pete Mills, an assistant public defender in the 10th Judicial Circuit who also serves as chairman of the Florida Public Defenders Association Death Penalty Steering Committee.
Judicial decision-making that abandons the doctrine of stare decisis — in any area of the law — is troubling, defense lawyers said.
“It reduces the legitimacy of the courts, as opposed to the far more political process of electing a governor, electing a Congress or a legislature. The judiciary’s supposed to be more neutral and see things more in the long-term,” Harper said in a telephone interview. “You have to respect precedent, even if you don’t agree with it.”
(©2019 CBS Local Media. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed. The News Service of Florida’s Dara Kam contributed to this report.)