Florida

Florida

INTELLECTUAL DISABILITY: Determination of Mental Retardation in Florida and Georgia Under Review

On October 21, the U.S. Supreme Court accepted a new case, Hall v. Florida (No. 12-10882), to determine whether the Florida Supreme Court properly upheld the death sentence of a man whose IQ is just above the state's standard for mental retardation. According to the state's law, defendants with an IQ above 70 cannot be considered intellectually disabled, even though most states use a broader definition and there is a margin of error in such IQ tests. Freddie Lee Hall's scores on three IQ tests ranged from 71 to 80. A state judge had previously found Hall to be mentally disabled, but the ruling took place before the state passed a law setting the IQ limit. The case will be argued later in the Supreme Court's term. In Georgia, a House committee will hold an out-of-session meeting to examine the state's strict standard for determining mental retardation in capital cases. Defendants are required to prove intellectual disability beyond a reasonable doubt, the strictest burden of proof in the nation.

Florida Identifies Over 100 Inmates Nearing Execution

Following the provisions of Florida's recently passed "Timely Justice Act," the clerk of the state's Supreme Court has identified 132 inmates on death row who are "warrant ready," based on their appeals. However, fewer than 20 of those inmates have begun the executive clemency process that must be completed before an execution can take place. Once the governor signals that the clemency process is over for an inmate, a death warrant must be signed in 30 days, but there is no mandatory schedule for the initial review. Over 150 attorneys representing inmates on Florida's death row are challenging the constitutionality of the law, saying it violates the separation of powers, as well as the inmates' rights to due process and equal protection. Stephen Harper, a law professor at Florida International University, said, "This [law] could create an unnecessary constitutional mess between the governor, the Legislature and the Florida Supreme Court as it's being litigated right now." Florida has already executed 5 inmates in 2013, second only to Texas. No one on death row has been granted clemency in Florida in 30 years.

LETHAL INJECTION: Many States Changing Lethal Injection Process

On October 4, Ohio announced it will be obtaining its execution drug, pentobarbital, from a compounding pharmacy if it is not available from the manufacturer. Texas made a similar announcement a few days earler. In the past, some compounding pharmacies have been implicated in providing contaminated drugs with fatal side effects. These local companies are not regulated by the Food and Drug Administration. Florida announced it will be using a new drug, midazolam, in its October 15 execution. The drug will be part of a 3-drug process and has never been used before in executions. The 3-drug process can be extremely painful if the first drug is not completely effective. Missouri intends to be the first state in the country to use the drug propofol in its October 23 execution, despite the fact that the drug company that delivered the drug has asked for its return. If Missouri goes ahead with the execution, European countries may impose restrictions on the exportation of this drug, thereby affecting other uses for vital surgeries in the U.S.  Finally, Tennessee will now use only a single drug, pentobarbital, in its executions, though it did not say where it hoped to obtain the drug.

NEW VOICES: Former Florida Justice Calls for Fundamental Change in Death Penalty

Raoul Cantera (pictured), a former Justice of the Florida Supreme Court, said the state should follow the practice of almost every other death penalty state and require juries to be unanimous when recommending a death sentence. Cantera also said that a a comprehensive review of the state's death penalty is "long overdue" and should begin by considering the recommendations of a 2006 American Bar Association report on the state's death penalty. Mark Schlakman, who was a member of the team that prepared the ABA report, joined Justice Cantera in calling for changes to the state’s system. Florida may have as many as 135 death penalty cases that could be moved close to execution under the state’s new Timely Justice Act. Recently, Florida has imposed more death sentences than any other state, and has had more exonerations than any other state since 1973. 

LETHAL INJECTION: Shortage of Drugs Leaves Texas Unsure About Future Executions

On August 1, the Texas Department of Criminal Justice announced its remaining supply of pentobarbital, used for lethal injections, expires in September, and it is unsure where to obtain more. The drug's manufacturer, Lundbeck, Inc., has barred distribution to states intending to use the drug in executions. DPIC’s Executive Director, Richard Dieter, remarked, “What’s happening is a scramble by Texas and other states to find something to quickly get into the syringe, rather than a reasoned public discussion about, if we’re going to do this, what is the best practice. The problem here is that life-saving drugs used by medical professionals are being used in executions, and the drug companies don’t want to be a part of that.” In recent months, other states have sought alternatives to pentobarbital. Missouri said it intended to use propofol, though its manufacturer also opposed such use. Georgia, Arkansas, Nebraska, California and other states are also reviewing execution procedures in response to problems with earlier protocols.  On August 1, a federal District Court in Florida ordered the state to reveal information about the drugs to be used in the upcoming execution of John Ferguson on August 5. Florida replied that it received doses of pentobarbital manufactured by Hospira, Inc. for Lundbeck, Inc. from Cardinal Health in Ohio. The drugs were received in 2011 and have expiration dates of Sept. 30 and Nov. 30, 2013.

UPCOMING EXECUTION: Florida's Narrow Interpretation of Mental Competency Leads to New Date

UPDATE: Ferguson was executed on Aug. 5. Florida has set an August 5 execution date for John Ferguson, a death row inmate who has suffered from severe mental illness for more than four decades. As far back as 1965, Ferguson was found to experience visual hallucinations. He was sent to mental institutions and was diagnosed as paranoid schizophrenic, delusional, and aggressive. In 1975, a mental health doctor described Ferguson as “dangerous and cannot be released under any circumstances.” Nevertheless, he was released less than a year later. Ferguson believes he is the "Prince of God" and is being executed so can save the world. Ferguson's attorneys recently filed a petition with the U.S. Supreme Court, asserting that Florida courts have applied the wrong standard for mental competency, ignoring the current interpretation of this issue by the High Court, which requires that an inmate have a rational understanding of why he is being executed. An earlier editorial in the Tampa Bay Times opposing Ferguson's execution, agreed, “Florida is embracing an interpretation of competency for execution so pinched that it would virtually extinguish limits on executing the severely mentally ill. The state says Ferguson is aware that he is being put to death and that he committed murder, and is therefore competent to be executed.”

RECENT LEGISLATION: Florida Lawyers Challenge New Law Accelerating Executions

On June 26, lawyers in Florida filed a lawsuit challenging the 2013 Timely Justice Act, a law signed by Gov. Rick Scott earlier in June. The Act could accelerate executions by requiring the governor to sign a death warrant within 30 days of a Supreme Court review, provided the governor determines that the clemency process is complete. An execution must follow within 180 days. The lawsuit was filed by the Capital Collateral Regional Counsel, a state agency that represents death row inmates during post-conviction proceedings, with more than 100 current death row inmates named as plaintiffs. The lawsuit claims that the new law is unconstitutional because it takes away the court’s powers and violates death penalty defendants’ rights to due process and equal protection. The suit stated, “The Act creates a rushed process for issuance of a likely flood of death warrants that will inundate the courts and abruptly cut off this Court’s exercise of judicial review in capital cases. If not addressed prior to its operation in practice, the process will have the unconstitutional and irreversible result of individuals being executed under a legislatively-determined judicial procedure in which violations of their constitutional rights go unresolved. Further, Florida history shows that diminished process can have tragic and irreversible consequences.” Florida leads the country in exonerations, with 24 inmates released from death row since 1973. The Timely Justice Act is scheduled to take effect on July 1.

EDITORIALS: "Gov. Scott Should Veto Bill that Speed Up Death Penalty Punishments"

A June 3 editorial in the Sun Sentinel called on Florida Governor Rick Scott (pictured) to veto the Timely Justice Act, a bill passed by the legislature earlier this year that would accelerate executions. The bill requires the governor to sign a death warrant within 30 days of a Supreme Court review, with an execution to follow within 180 days. According to the editorial, flaws in the system, evidenced by death row exonerations, should be sufficient reason to reject a bill that would speed up the death penalty process in the state. The law would give wrongfully convicted inmates approximately eight months to prove their innocence before facing execution. The editorial highlighted the case of former Florida death row inmate Seth Penalver, who spent a dozen years on death row before this conviction was overturned last year. Another inmate, Clemente Javier Aguirre-Jarquin, recently presented DNA evidence that could set him free, seven years after his conviction. The editors concluded, “If the Timely Justice Act were already law, he would not be alive to fight for his own justice.” Twenty four wrongfully convicted inmates have been released from death row in Florida since the mid-1970s, more than any other state in the country.  Read full editorial below.

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