Counsel Seeks to Challenge Rare Execution of 72-Year-Old Florida Prisoner on Constitutional Grounds in Florida Supreme Court

With just weeks remain­ing before his sched­uled exe­cu­tion, attor­neys for 72-year-old Samuel Lee Smithers are appeal­ing the dis­missal of their motion filed September 19, 2025, argu­ing that exe­cut­ing an elder­ly per­son vio­lates both Florida and the U.S. Constitutions’ pro­hi­bi­tion against cru­el and unusu­al pun­ish­ment and fails to meet any valid peno­log­i­cal jus­ti­fi­ca­tion. On September 22, 2025, the Hillsborough County Circuit Court denied Mr. Smithers’ request for an evi­den­tiary hear­ing to con­sid­er his claim. Mr. Smithers is sched­uled to be exe­cut­ed on October 14, 2025, mak­ing him the 14^th per­son set for exe­cu­tion in Florida this year under Governor Ron DeSantis, who has over­seen more exe­cu­tions in a sin­gle year than any pre­vi­ous Florida governor.

Mr. Smithers was sen­tenced to death in 1999, at age 45, for the mur­ders of two women in Hillsborough County, Florida. Now 72-years-old, Mr. Smithers’ coun­sel alleges that exe­cut­ing some­one of his advanced age amounts to cru­el and unusu­al pun­ish­ment and no longer serves the ini­tial pur­pose of his death sen­tence. The motion cen­ters on the long­stand­ing prin­ci­ple that con­sti­tu­tion­al pro­hi­bi­tions against cru­el and unusu­al pun­ish­ment must be inter­pret­ed in light of con­tem­po­rary soci­etal stan­dards and values. 

Central to the motion’s argu­ment is the sta­tis­ti­cal rar­i­ty of exe­cut­ing elder­ly indi­vid­u­als. Since the U.S. Supreme Court autho­rized the resump­tion of the death penal­ty in 1976, just 16 peo­ple over the age of 70 have been exe­cut­ed — account­ing for less than 0.01% of all exe­cu­tions in the U.S. since 1976. Only 41 of the 1640 indi­vid­u­als exe­cut­ed dur­ing this time­frame were age 65 or old­er. ​“The objec­tive evi­dence would sug­gest and sup­port that rar­i­ty of the exe­cu­tion of the elder­ly reflects the evolved stan­dards and sup­ports the find­ing of the unusu­al nature of exe­cut­ing the elder­ly,” argues defense coun­sel. In June 2025, Mississippi exe­cut­ed 79-year-old Richard Jordan, a Vietnam vet­er­an who was sen­tenced to death four sep­a­rate times, despite the state’s con­tention that his crime did not mer­it the death penalty.

The motion also draws on spe­cial pro­tec­tions for the elder­ly found in Florida law. The state leg­is­la­ture has rec­og­nized this population’s vul­ner­a­bil­i­ty, enact­ing numer­ous laws that enhance crim­i­nal penal­ties when vic­tims are 65 or old­er. Florida also allows peo­ple 70 and old­er to be per­ma­nent­ly excused from jury duty, acknowl­edg­ing age-relat­ed lim­i­ta­tions. ​“Florida’s stance on pro­tect­ing the elder­ly pro­vides evi­dence of a clear and expressed con­sen­sus of pro­tect­ing the elder­ly, espe­cial­ly those 65 years of age and old­er,” the motion states, argu­ing this demon­strates ​“evolved stan­dards of pro­tect­ing the vulnerable.”

Defense coun­sel also argues that exe­cut­ing Mr. Smithers would serve nei­ther of the two rec­og­nized peno­log­i­cal jus­ti­fi­ca­tions for the death penal­ty: deter­rence and ret­ri­bu­tion. Citing U.S. Supreme Court prece­dent, coun­sel argues that when the death penal­ty fails to serve these goals, it becomes ​“the pur­pose­less and need­less impo­si­tion of pain and suf­fer­ing.” The motion draws par­al­lels to estab­lished con­sti­tu­tion­al pro­tec­tions against exe­cut­ing the insane, intel­lec­tu­al­ly dis­abled, and juve­niles — all of which are part­ly based on the prin­ci­ple that cer­tain pop­u­la­tions can­not be exe­cut­ed when doing so serves no legit­i­mate penological purpose.

In response, the state urged that Mr. Smithers’ motion be denied on pro­ce­dur­al grounds, call­ing it untime­ly and cit­ing oth­er pro­ce­dur­al bar­ri­ers. Attorneys for the state note ​“the claim became ripe when Smithers was six­ty-five years old,” but argue he ​“delayed…for six addi­tion­al years.” The State also argues Mr. Smithers’ claim is mer­it­less because the U.S. Supreme Court has not issued a rul­ing in favor of ​“age-based cat­e­go­r­i­al exemp­tion” to executions.

Hillsborough Circuit Judge Michelle Sisco agreed with the state, deny­ing Mr. Smithers’ request for an evi­den­tiary hear­ing. Judge Sisco wrote, “[t]he fact that [Mr. Smithers] is of advanced age does not dimin­ish the ret­ribu­tive val­ue of the death penal­ty in his case, or under­mine its deter­rent effect, in the same man­ner that a person’s sta­tus as a juve­nile or insane would.”

Counsel for Mr. Smithers have appealed this deci­sion to the Florida Supreme Court.