Florida

Florida

Is Racially Biased Testimony Wrongly Subjecting Intellectually Disabled Defendants to the Death Penalty?

The U.S. Supreme Court's 2002 decision in Atkins v. Virginia categorically bars states from executing any person who has Intellectual Disability. (Daryl Atkins is pictured.) However, as reported in recent stories in Pacific Standard Magazine and the newspaper, The Atlanta Black Star, some states have attempted to circumvent the Atkins ruling by using social stereotypes and race as grounds to argue that defendants of color are not intellectually disabled. Prosecutors in at least eight states have presented opinions from expert witnesses that "ethnic adjustments" should be applied to IQ tests and tests of adaptive functioning that would deny an intellectual disability diagnosis to Black or Latino defendants who, if they were White, would be considered intellectually disabled and ineligible for the death penalty. "Ethnic adjustments" typically take one of two forms. One adjustment purports to compensate for perceived racial bias in IQ testing by boosting the defendant's IQ scores. A second form of adjustment is determining, based upon the expert witness's subjective views about a defendant's social conditions and culture, that impairments in day-to-day functioning that would be considered adaptive deficits for White defendants are not as rare for a person with the defendant's racial, ethnic, and socio-economic background, and so are not evidence of intellectual disability. Robert M. Sanger, a trial lawyer and professor of law and forensic science at Santa Barbara College of Law in California who wrote the 2015 law review article IQ, Intelligence Tests, 'Ethnic Adjustments' and Atkins called the use of these adjustments "outrageous." “What these so-called experts do," Sanger says, "is say that, because people of color are not as likely to score as well on IQ tests, you should, therefore, increase their IQ scores from 5 to 15 points to make up for some unknown or undescribed problem in the test.” Sanger has documented the use of ethnic adjustments by prosecutors in Florida, Texas, Alabama, Tennessee, Missouri, California, Pennsylvania, and Ohio. “The idea of racially classifying a person and then using 'ethnic adjustments' to increase his or her IQ score, thereby qualifying that person for execution, is logically, clinically, and constitutionally unsound,” Sanger wrote. IQ scores, he says, are affected by a variety of  environmental factors "such as childhood abuse, poverty, stress, and trauma[, that] can cause decreases in actual IQ scores." Because people who experience these environmental factors "disproportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death." Moreover, the courts have repeatedly rejected the adjusting of test scores on the basis of race in cases that would benefit racial minorities, Sanger said, most prominently in cases in which African-American applicants for police or firefighting jobs had alleged that cities were using racially discriminatory tests. Sanger says "it’s sort of outrageous that you can adjust scores upward so you can be killed, but not so you can get a job.” In 2011, the Texas State Board of Examiners of Psychologists reprimanded psychologist Dr. George Denkowski for his misuse of ethnic adjustments in death-penalty cases. As part of an agreement dismissing disciplinary charges against him, Denkowski—who testified against sixteen Texas death-row prisoners, several of whom have been executed—was fined $5,500 and agreed that he would never again conduct intellectual disability evaluations in criminal cases. On January 4, 2018, Philadelphia prosecutors, who had used Denkowski's ethnic adjustments as part their argument that Pennsylvania death-row prisoner Jose DeJesus was not intellectually disabled, agreed that DeJesus should be resentenced to life. Ethnic adjustments are only some of the non-scientific barriers states have erected to avoid compliance with Atkins. In 2014, the U.S. Supreme Court ruled in Hall v. Florida that Florida had unconstitutionally emplyed an IQ cut-off score to reject claims of intellectual disability. In 2017, in Moore v. Texas, the court rejected the state's use of a set of unscientific lay stereotypes to claim that a defendant did not have the adaptive deficits necessary to be considered intellectually disabled. The Court called Texas's approach an "outlier" that, "[b]y design and in operation, ... create[s] an unacceptable risk that persons with intellectual disability will be executed." Moore reiterated that a court’s determination of intellectual disability in a death-penalty case must be “informed by the medical community’s diagnostic framework."

Florida Denies New Sentencing Hearings to More than Thirty Prisoners, Most Unconstitutionally Sentenced to Death

In three days of bulk decision-making, the Florida Supreme Court has denied new sentencing hearings to more than thirty death-row prisoners, declining to enforce its bar against non-unanimous death sentences to cases that became final on appeal before June 2002. At least 24 of the prisoners who were denied relief had been unconstitutionally sentenced to death after non-unanimous jury sentencing recommendations, including three prisoners—Etheria Verdell JacksonErnest D. Suggs, and Harry Franklin Phillips—with bare majority death recommendations of 7-5. The Florida court adopted June 24, 2002 as its cutoff date for enforcing its decision because that was when the U.S. Supreme Court decided Ring v. Arizona, an Arizona case establishing that the right to a jury trial entitles a capital defendant to have a jury find all facts that are necessary for a death sentence to be imposed. In January 2016, the U.S. Supreme Court ruled in Hurst v. Florida that Florida's death-penalty statute, which reserved penalty-phase factfinding for the judge, violated Ring. Later, also in Hurst's case, the Florida Supreme Court ruled that a capital defendant's right to a jury trial also required a unanimous jury vote for death before the trial judge could impose a death sentence. That decision potentially invalidated more than 375 Florida death sentences. However, in December 2016, the Florida Supreme Court ruled that Ring had announced a new legal right and that it would not apply Hurst to cases that had already completed their direct appeal before Ring was decided. The court issued opinions declining to apply Hurst in ten death-penalty cases on January 22, another ten on January 23, and a third set of ten on January 24. The court also issued unpublished orders denying relief in some other cases. Still more decisions are expected. These rulings reiterate the court's decision to not grant relief to prisoners who were unconstitutionally sentenced to death prior to Ring. On August 10, 2017, the court, by a 6-1 vote, upheld the death sentence imposed on James Hitchcock, despite his being unconstitutionally sentenced to death following a non-unanimious sentencing recommendation by the jury. In dissenting, Justice Barbara J. Pariente wrote: "To deny Hitchcock relief when other similarly situated defendants have been granted relief amounts to a denial of due process." In 80% of the new opinions, juries had not unanimously recommended death, but the prisoners' appeals had been completed before Ring was decided. In four cases, the appeals of unconstitutionally death-sentenced prisoners became final in 2001. Steven Maurice Evans's appeal became final in March of 2002 and James Ford's unconstitutional death sentence became final in May 28, 2002, less than a month before Ring was decided. In the six cases in which prisoners had unanimous jury recommendations for death, the court declined to review other potential violations of Hurst and whether instructions diminishing the jury’s sense of responsibility may have unconstitutionally affected the verdict. Among those whose appeals were denied on January 22, 2018 is Eric Scott Branch, who was unconstitutionally sentenced to death following a 10-2 jury recommendation for death in 1997. Branch is set to be executed on February 22. According to a Death Penalty Information Center analysis of Florida's death-row prisoners who have non-unanimous jury recommendations and whose convictions became final post-Ring, 153 prisoners on Florida's death row are entitled to resentencing. Of them,123 (or 80.9%) have already obtained relief. At least eighteen prisoners who obtained relief under Hurst have since been resentenced to life, while two prisoners who initially had non-unanimous sentencing recommendations have been resentenced to death. In 2017, Florida executed two prisoners—Marc Asay and Michael Lambrix—after denying them relief despite their unconstitutional non-unanimous death sentences. [UPDATE:  The Florida Supreme Court issued opinions denying relief in ten additional death-penalty cases on January 26, bringing the total of cases in which it declined to apply the constitutional protections announced in Hurst v. Florida and Hurst v. State during the past week to at least 41.]  

State Attorney Aramis Ayala's First Capital Prosecution Ends in Deal for Life in Prison

There will be no death penalty in the first capital prosecution authorized under the administration of Orange and Osceola County, Florida, State Attorney Aramis Ayala. In a case that rekindled the political confrontation between State Attorney Ayala and Governor Rick Scott over the use of the death penalty, Emerita Mapp (pictured) pleaded no contest on December 8 to one count of murder and a second count of attempted murder in exchange for a sentence of life without parole. The plea deal came just three days before the trial judge was scheduled to rule on Mapp’s motion arguing that the court should bar the death penalty in her case because the state attorney’s office had missed the filing deadline for seeking the death penalty. In March, State Attorney Ayala announced that her office would not seek the death penalty, saying that the use of the punishment was “not in the best interests of this community or in the best interests of justice." Scott responded by removing Ayala’s office from more than two dozen potential death-penalty cases over the course of several months, and replacing her with Lake County State Attorney Brad King. The move, which was opposed by civil rights groups and the Florida black legislative caucus, had unspoken racial undertones: Ayala, a Democrat, is Florida's only black elected state attorney; King, a Republican, is white and a vocal proponent of capital punishment. Ayala sued Scott, alleging that he had overstepped his powers, but in August 2017, the Florida Supreme Court upheld his actions, holding that Scott had acted “well within the bounds of the Governor’s broad authority.” Ayala said she respected the ruling and announced the formation of a panel to decide in which cases to pursue capital punishment. Mapp’s case was the first in which the panel had authorized the death penalty, but that authorization came 22 days after the deadline for providing notice of capital prosecution. That prompted another round of criticisms traded between Scott and Ayala as to who was to blame for missing the deadline.

Former Florida Death-Row Doctor: Experience of Veterans Highlights Death Penalty's Failures

A former Florida death-row doctor says the experience of U.S. military veterans who have been sentenced to death provides a lens through which the public can better understand some of the failures of the state's death penalty and identify opportunities for meaningful reform of the criminal justice system. In a Veterans Day guest column in Florida Politics, psychiatrist Dr. Joseph Thornton (pictured) writes that "18-percent of Florida’s death row is made up of veterans of our military services." Their backgrounds of "childhood trauma, drug use and more," he says, is typical of the experiences of "almost all" of the prisoners on the state's death row. In conjunction with Veterans Day 2015, DPIC released a report, Battle Scars: Military Veterans and the Death Penalty, that estimated at least 300 veterans were on state and federal death rows across the country, representing approximately ten percent of the nation’s death row population. The report highlighted the plight of veterans with Post-Traumatic Stress Disorder (PTSD), the lack of effective mental health intervention and support services, and the failures of defense counsel to investigate and present critical evidence to spare the veterans' lives. Dr. Thornton—whose more than 30-years of clinical experience includes three years overseeing medical and psychiatric care on Florida's death row—noted that two men whom Florida executed in 2017 were military veterans. Michael Lambrix, who was executed on October 5, was honorably discharged from the Army after becoming disabled in a training accident and subsequently developed a serious problem with drugs. Patrick Hannon, executed November 8, already suffered from drug abuse while in the military. "Neither," Dr. Thornton writes, "had the benefit of current intervention tactics deployed by the Veteran’s Administration to care for veterans with a history of trauma and drug abuse." Dr. Thornton advocates that Florida reallocate the money it spends on the death penalty for "more mental health treatment services, especially for military veterans, who deserve better treatment after sacrificing so much for our country." The state, he writes, should "place a moratorium on executions, and not just those of veterans, but everyone on Florida’s death row." Four veterans were executed in the United States in 2016: Georgia executed Brandon Jones and William Sallie, who had served in the Army, and Travis Hittson, who had served in the Navy; Alabama executed former Army reservist. Ronald Smith. Two men who served in the military have been exonerated in 2017: Air Force veteran Ralph Daniel Wright, Jr. was exonerated in Florida in May and Rickey Dale Newman, a mentally ill former Marine suffering from posttraumatic stress disorder who was homeless at the time he was charged with capital murder in Arkansas.

Supreme Court Directs Florida to Reconsider Intellectual Disability Decision in Death Penalty Case

The United States Supreme Court has ordered the Florida Supreme Court to reconsider a decision that had denied a death-row prisoner's claim that he was ineligible for the death penalty because he has Intellectual Disability. On October 16, the Court reversed and remanded the case of Tavares Wright (pictured, left), directing the Florida courts to reconsider his intellectual-disability claim in light of the constitutional standard the Court set forth in its March 2017 decision in Moore v. Texas. The decision in Wright v. Florida was the sixth time the Court has vacated a state or federal court's rejection of an intellectual-disability claim and remanded the case for reconsideration under Moore—and the third time it has done so in less than a month. Earlier in October, the Court vacated two decisions by the U.S. Court of Appeals for the 5th Circuit and remanded the cases of Texas death-row prisoners Obie Weathers and Steven Long for reconsideration in light of Moore, and on October 18, the Texas Court of Criminal Appeals cited Moore  as grounds for reconsidering its own prior rejection of intellectual-disability claims raised by Carnell Petetan, Jr. (pictured, right). Moore was expected to have broad impact in Texas, where—the Court unanimously agreed—the state courts had unconstitutionally adopted an unscientific set of lay stereotypes to determine whether a defendant facing the death penalty had impairments in functioning that qualified him or her as intellectually disabled. Five members of the Court also stressed in the majority opinion in Moore that the state had improperly rejected claims of intellectual disability by emphasizing a capital defendant's perceived adaptive strengths, instead of "focus[ing] the adaptive-functioning inquiry on adaptive deficits," as required by accepted medical practice. Lawyers in Harris County (Houston)—which has executed more prisoners than any other county—anticipate that more than a dozen prisoners sentenced to death in that county may be entitled to reconsideration of their death sentences under Moore, and one prisoner, Robert James Campbell, has already been resentenced to life. However, the Supreme Court's recent rulings indicate that its pronouncement in Moore that a state's determination of Intellectual Disability must be "informed by the medical community’s diagnostic framework" is not limited to Texas. In May, the Court vacated a decision of the Alabama Court of Criminal Appeals in the case of Taurus Carroll after his lawyer invoked Moore to argue that Alabama had unconstitutionally deviated from accepted methods of determining intellectual disability. In the Florida case, Wright's lawyers argued that the state supreme court's decision in his case was inconsistent with a line of Supreme Court cases on intellectual disability—Atkins v. Virginia (2002), which declared execution of those with intellectual disability to be unconstitutional; Hall v. Florida (2014), which struck down Florida's approach to measuring the role of IQ in determining intellectual disability; and Moore. Although its order did not set forth the reasons for its decision, the Supreme Court agreed and directed the Florida courts to reconsider the issue.

Florida Supreme Court Upholds Removal of Prosecutor From Death-Eligible Cases

The Florida Supreme Court has upheld Governor Rick Scott’s (pictured, left) removal of Orange and Osceola County State Attorney Aramis Ayala (pictured, right) as prosecutor in more than two dozen murder cases because of her official policy not to seek to seek the death penalty. Over two dissents, the seven-member Court held that Scott had acted “well within the bounds of the Governor’s broad authority” when he replaced Ayala with Lake County State Attorney and death-penalty proponent Brad King in cases that could be eligible for the death penalty under Florida law. On March 16, Ayala—the first African American elected as a Florida state attorney—announced that her office would not pursue the death penalty in any homicide cases, saying the use of capital punishment was “not in the best interests of this community or in the best interests of justice." That day, Governor Scott issued an executive order removing her from the case of Markeith Loyd, charged in the killing of an Orlando police officer, and appointing King to prosecute the case. He has since issued executive orders removing Ayala and appointing King in at least 26 other murder cases. Against a backdrop of racial discrimination, Ayala—supported by the Florida Legislative Black Caucus and a group of lawyers, legal experts, and retired judges—argued that Scott’s action was a power grab that threatened the autonomy of locally elected prosecutors to exercise their discretion in charging and sentencing practices. The court flatly rejected that argument, saying that “adopting a blanket policy against the imposition of the death penalty is in effect refusing to exercise discretion and tantamount to a functional veto” of Florida’s death-penalty law. The two women on the court, Justice Barbara Pariente, joined by Justice Peggy A. Quince, dissented. Justice Pariente wrote: “This case is about the independence of duly elected State Attorneys to make lawful decisions within their respective jurisdictions as to sentencing and allocation of their offices’ resources, free from interference by a Governor who disagrees with their decisions.” Ayala’s decision “not seek a sentence that produces years of appeals and endless constitutional challenges and implicates decades of significant jurisprudential developments,” she wrote “was well within the scheme created by the Legislature and within the scope of decisions State Attorneys make every day on how to allocate their offices’ limited resources.” Governor Scott hailed the decision as “a great victory.” Shortly afterwards, Ayala issued a statement saying she respects the ruling and announcing the formation of a death penalty review panel that will evaluate first-degree murder cases and recommend whether to seek the death penalty. “With implementation of this Panel,” the statement said, “it is my expectation that going forward all first-degree murder cases that occur in my jurisdiction will remain in my office and be evaluated and prosecuted accordingly."

50 Years After Historic Confirmation to Supreme Court, Thurgood Marshall's Legacy Continues To Shape Future

Fifty years ago today, Thurgood Marshall (pictured) was confirmed as the nation’s first African-American Supreme Court Justice. Marshall’s legacy is indelibly linked to his historic victory in 1954 as counsel in Brown v. Board of Education, breaking down the barriers of "separate but equal" segregated public education. But he is equally associated with his representation of capital defendants in racially charged cases in the Jim Crow South and his longstanding belief—first articulated in a concurring opinion in the Court's landmark 1972 decision in Furman v. Georgia striking down all existing death-penalty statutes—that "the death penalty is an excessive and unnecessary punishment that violates the Eighth Amendment." A grandson of slaves and a survivor of an attempted lynching by Tennessee police officers, Marshall devoted his life to ensuring that all people, irrespective of race, enjoyed the rights of full citizenship and the equal protection of the law. This inexorably drew him to the issues of lynching and capital punishment. Seven days after the Baltimore native received his law license in October 1933, a 23-year-old intellectually disabled black man, George Armwood, who had been in custody accused of the attempted assault and rape of an elderly white woman, was lynched in nearby Somerset County, Maryland. Marshall was one of ten lawyers to petition the governor seeking anti-lynching legislation and call for an investigation into state police involvement in the lynching. Marshall won his first Supreme Court case in 1940, arguing Chambers v. Florida, which established that coerced confessions obtained by police through duress and violence are inadmissible at trial. That year, he founded the NAACP Legal Defense and Educational Fund and served as its first Director-Counsel, representing numerous black defendants charged with crimes in Southern courts. In 1941, Marshall represented W.D. Lyons, an illiterate 21-year-old black sharecropper beaten into confessing to murdering a white family and burning down their home. Enduring racial epithets from an initially hostile white community, Marshall subjected the police who had framed Lyons to withering cross-examination and showed that they had obviously lied on the stand. Lyons was convicted and—after the U.S. Supreme Court denied his appeal—executed, but historians say the case awakened Marshall to the ability of lawyers to empower oppressed communities. Later, Marshall won retrials for three young African-American men who had been falsely accused of raping a 17-year-old white woman in Lake County, Florida. Two of the "Groveland Four" (a fourth young man charged in the case had been lynched by a white mob after escaping from custody) were wrongly sentenced to death; one of them was murdered and the other shot several times by a sheriff while being transported to their retrial. The surviving defendant was convicted and resentenced to death, but received a last-minute commutation. The third defendant—who was 16 at the time—received a life sentence. In April 2017, the Florida legislature issued an apology for the killings and wrongful convictions and asked Governor Rick Scott to issue posthumous pardons for the four. In November 1946, Marshall nearly was murdered. Tennessee law enforcement intercepted his car and placed him in the back of an unmarked car after he had won an acquittal for one of 25 black man charged with riot and attempted murder in the wake of local racial violence. They drove him down isolated roads and, Marshall later said, "were taking me down to the river where all of the white people were waiting to do a little bit of lynching." A white lawyer and a white journalist saw the abduction and followed the unmarked car, foiling the lynching. The Legal Defense Fund won acquittals in 23 of the 25 Tennessee riot cases. Marshall wrote in his concurrence in Furman that "[i]t is evident ... that the burden of capital punishment falls upon the poor, the ignorant and the underprivileged members of society." He firmly believed that the public would do away with the punishment if they understood the facts of how the death penalty actually was applied. The question for him in Furman was "not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available.”

Florida Death-Penalty Practices, Mark Asay Execution Draw Criticism From Human Rights Groups, Johnson & Johnson

As Florida prepared to execute Mark Asay (pictured) on August 24, the state’s death-penalty practices came under fire from human rights groups, criminal justice reformers, and one of the world’s largest pharmaceutical companies. Asay was executed despite the Florida Supreme Court’s recognition that his death sentence—imposed by a judge after three jurors had voted for life—was unconstitutionally imposed and that the court mistakenly believed both of Asay’s victims were black when it upheld his death sentence for what it believed to have been two racially motivated killings. Asay's execution also drew criticism from Johnson & Johnson, the world’s largest pharmaceutical company. Its pharmaceutical division, Janssen Pharmaceuticals, condemned the state’s proposed use of the drug etomidate, which the company invented a half-century ago exclusively for medical use. Asay’s execution has been described as a twist on Florida’s racially disproportionate use of capital punishment. His execution made him the first white defendant since the state brought back capital punishment in the 1970s to be put to death for the murder of any black victim. In December 2016, African-American Florida Supreme Court Justice James Perry—in dissenting from the court’s decision to lift a stay of execution for Asay—described this “sad statistic” as a “reflection of the bitter reality that the death penalty is applied in a biased and discriminatory fashion, even today.” To date, all 57 white prisoners executed in Florida in the modern era were condemned for killing at least one white or Latino victim. In that same time period, Florida has executed 28 black death-row prisoners, with more than 70% condemned for the interracial murder of at least one white victim. On August 21, Amnesty International issued a new report, USA: Death in Florida, saying that the Asay execution and Governor Rick Scott’s decision to remove Orlando State Attorney Aramis Ayala from 27 homicide prosecutions provided “a moment to reflect upon an often overlooked aspect of Florida’s history—that it was a leader in lynching in the South and slow to eradicate this phenomenon in the 20th century.” The Amnesty report noted that Ayala, the first African American to be elected as a Florida state attorney, had cited systemic racial discrimination as one of the flaws in capital punishment that led to her decision that pursuing the death sentences in first-degree murder prosecutions was “not in the best interests of the community” or “the best interests of justice.” It also highlighted her replacement, Brad King, a white prosecutor whose “well-established” support for the death penalty, Amnesty said, included “act[ing] as lobbyist-in-chief for the Florida prosecutorial community” in legislative efforts to oppose requiring unanimous jury recommendations for death. Asay’s execution was the first ever in which a state has used the injectable sedative etomidate. As part of its three-drug process, Florida then administered rocuronium bromide as a paralytic drug and potassium acetate to stop the heart. In a statement issued on August 21, Janssen said: “Janssen discovers and develops medical innovations to save and enhance lives. … We do not condone the use of our medicines in lethal injections for capital punishment." The human rights organization, Reprieve, issued a statement saying that “Governor Scott should listen to clear and unequivocal statements from Johnson & Johnson and others calling time on this dangerous misuse of medicines, and stay the execution of Mark Asay.” The state and federal courts denied Asay's applications to stay his execution and he was put to death on August 24.

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