Florida Supreme Court Abandons 50-Year-Old Proportionality Safeguard for Capital Defendants

In a continuing diminution of procedural safeguards in capital cases, the Florida Supreme Court has ended its long-standing practice of independently reviewing death penalty cases on appeal to ensure that they are not disproportionate to sentences imposed in similar cases.

The practice, known as comparative proportionality review, was initiated by the court a half-century ago after the U.S. Supreme Court struck down all existing U.S. death penalty statutes in Furman v. Georgia because of the unconstitutionally arbitrary manner in which capital punishment was administered. Most other death penalty states enacted similar procedures as a critical appellate protection against arbitrary and discriminatory infliction of capital punishment. And in 1976, the U.S. Supreme Court upheld Florida’s death sentencing statute in Proffitt v. Florida in part because “[t]he Supreme Court of Florida reviews each death sentence to ensure that similar results are reached in similar cases.”

Although the U.S. Supreme Court held in Pulley v. Harris in 1984 that the absence of comparative proportionality review did not in itself render a capital appeal process unconstitutional, Florida and most other death penalty states continued the practice. Nonetheless, on October 30, 2020, over the strong dissent of Justice Jorge Labarga, the Florida justices ruled in Lawrence v. State that performing comparative proportionality review violates the Florida Constitution.

In dissent, Justice Labarga wrote that comparative proportionality review is “a fundamental component of this Court’s mandatory review in direct appeal cases,” and he called the court’s action “the most consequential step yet in dismantling the reasonable safeguards contained within Florida’s death penalty jurisprudence.”

The decision came in the direct appeal of death-row prisoner Jonathan Lawrence, who had been resentenced to death in 2018. Lawrence’s first death sentence, which the trial court imposed after a non-unanimous jury recommendation for death, had been overturned as a result of the U.S. Supreme Court’s January 2016 ruling in Hurst v. Florida, striking down the state’s capital sentencing procedures. Lawrence wrote to the trial judge seeking to have his death sentence reinstated. In his resentencing hearing, the court permitted Lawrence to waive his rights to a penalty-phase jury, to present mitigating evidence to spare his life, and to contest the State’s case for death.

The decision was the 50^th consecutive case in which the Florida Supreme Court denied a death-row prisoner’s appeal.

The court’s ruling marked the fourth time in 2020, that the newly constituted far-right majority of the court has eliminated constitutional protections previously afforded to capital defendants or death-row prisoners. In January, the court overturned a landmark precedent requiring that juries unanimously recommend a death sentence before a judge may impose the death penalty. Then, on May 14, it abandoned a century-old standard for heightened review in cases in which a conviction rested solely on circumstantial evidence. One week later, the court again reversed its own case precedent and limited enforcement of a U.S. Supreme Court case that bars execution of intellectually disabled prisoners. The court also has also overturned its own case precedent that had required that juveniles who were sentenced to terms longer than 20 years be afforded an opportunity to be considered for early release.

The decision, which Slate legal writer Mark Stern described as “an earthquake in Florida’s legal system,” provoked strong condemnation. “I could not dissent more strongly to this decision,” Justice Labarga wrote, calling it “one that severely undermines the reliability of this Court’s decisions on direct appeal, and more broadly, Florida’s death penalty jurisprudence.”

In an editorial entitled, A day of infamy at Florida’s Death Court, the South Florida Sun Sentinel wrote that “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 editorial board said: “What Florida’s death court did Thursday belies the old promise to ensure consistency between who lives and who dies for similar crimes under similar circumstances. It sets Florida far apart from most of the other states that still execute people. And it demonstrates that capital punishment in Florida is beyond justification or repair and must be abolished.”

The editorial also criticized Florida’s last two governors for making “right-wing credentials … a litmus test for appointment to the bench.” It accused the court of contorting the facts and the law and “taking what the U.S. Supreme Court never said as a pretext to invalidate a fail-safe provision against random cruelty in the application of society’s only irreversible punishment.”

The editorial concluded: “The armor of capital punishment is rotting away, revealing a ghoulish presence that has nothing to do with preventing crime. It is bloodlust, nothing more.”