Florida Supreme Court Limits Enforcement of Supreme Court Decision Barring Execution of Intellectually Disabled Prisoners

For the third time in 2020, the Florida Supreme Court has reduced the con­sti­tu­tion­al pro­tec­tions afford­ed to death-row pris­on­ers. In a May 21 deci­sion in Phillips v. State, the court over­turned its own case prece­dent and lim­it­ed enforce­ment of a U.S. Supreme Court case that bars exe­cu­tion of intel­lec­tu­al­ly disabled prisoners. 

The Miami Herald edi­to­r­i­al board said the deci­sion ​“shred­ded prece­dent” and ​“ignores clear and data-dri­ven direc­tion from the U.S. Supreme Court.” Dissenting Justice Jorge Labarga wrote, ​“Yet again, this Court has removed an impor­tant safe­guard in main­tain­ing the integri­ty of Florida’s death penal­ty jurispru­dence. The result is an increased risk that cer­tain indi­vid­u­als may be exe­cut­ed, even if they are intellectually disabled.”

Harry Phillips (pic­tured) may be one of those individuals. 

Phillips was con­vict­ed and sen­tenced to death for a 1982 mur­der in Miami-Dade County. Ten years lat­er, his death sen­tence was over­turned as a result of his lawyer’s inef­fec­tive rep­re­sen­ta­tion in the penal­ty phase of the tri­al. Represented by new coun­sel, five jurors in his resen­tenc­ing tri­al rec­om­mend­ed that Phillips be sen­tenced to life, but the tri­al court nev­er­the­less imposed the death penal­ty. The U.S. Supreme Court sub­se­quent­ly struck down Florida’s sen­tenc­ing pro­ce­dure because it gave the tri­al judge, rather than a unan­i­mous jury, the ulti­mate author­i­ty to find the facts lead­ing to a death sen­tence. However, the Florida Supreme Court allowed Phillips’ death sen­tence to stand, say­ing his sen­tence had already been appealed before the statute was declared unconstitutional.

In 2002, six years after Phillips’ resen­tenc­ing, the U.S. Supreme Court ruled that impos­ing the death penal­ty on indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty con­sti­tut­ed cru­el and unusu­al pun­ish­ment in vio­la­tion of the Eighth Amendment. Phillips sought to vacate his death sen­tence on those grounds, but the Florida courts reject­ed his claim in 2008, apply­ing an idio­syn­crat­ic stan­dard that required him to prove that his IQ was 70 or below before it would con­sid­er evi­dence of his impair­ments in day-to-day func­tion­ing. In 2014, in Hall v. Florida, the U.S. Supreme Court declared Florida’s use of a hard IQ-cut­off score uncon­sti­tu­tion­al­ly nar­row, say­ing the stan­dard ​“dis­re­gards estab­lished med­ical prac­tice” and has been reject­ed by the ​“vast major­i­ty of states.” 

Two years lat­er, the Florida Supreme Court ruled in Walls v. State that the Hall rul­ing ​“con­sti­tutes a devel­op­ment of fun­da­men­tal sig­nif­i­cance” that should be applied in all cap­i­tal cas­es involv­ing intel­lec­tu­al dis­abil­i­ty. The four-judge con­ser­v­a­tive major­i­ty in Phillips reversed course, rechar­ac­ter­iz­ing Hall as mere­ly an ​“evo­lu­tion­ary refine­ment” of the law that it would not apply to cas­es that had already become final on appeal before Hall was decid­ed.

Florida pros­e­cu­tors had not asked the court to reverse its deci­sion in Walls, lead­ing crit­ics to decry the rul­ing as polit­i­cal­ly moti­vat­ed judi­cial activism. In a May 27 edi­to­r­i­al, the Tampa Bay Times said “[t]he court is now an out­lier in revers­ing estab­lished law and the nation’s social norms.” Its ​“lurch to the right on death penal­ty cas­es“ the paper wrote, ​“and its easy will­ing­ness to jet­ti­son legal prece­dent is bad pol­i­cy for Florida and bad prac­tice for the courts.“ The paper described the Phillips deci­sion as ​“whip­saw­ing estab­lished court prece­dent“ and ​“send[ing] a chill­ing mes­sage about the high court’s con­science in han­dling the most severe pun­ish­ment soci­ety metes out.“ In a May 22 com­men­tary in Slate, Mark Joseph Stern wrote: ​“A court that spon­ta­neous­ly seeks out and repeals old laws it dis­likes is not real­ly a court. It is a leg­is­la­ture. There may be no clear­er exam­ple of unal­loyed, unapolo­getic judicial activism.”

“I am per­son­al­ly shocked at the Court’s audac­i­ty and, frankly, its mean­ness,” said Stephen Harper, Executive Director of the Florida Center for Capital Representation at Florida International University Law School.

In cap­i­tal appeals in the last four months, the court has also over­turned a land­mark prece­dent requir­ing that juries unan­i­mous­ly rec­om­mend a death sen­tence before a judge may impose death and a cen­tu­ry-old stan­dard for height­ened review in cas­es where the only evi­dence was cir­cum­stan­tial. It also over­turned its own case prece­dent that had required that juve­niles sen­tenced to terms longer than 20 years be afford­ed an oppor­tu­ni­ty for con­sid­er­a­tion of early release.

The com­po­si­tion of Florida’s high court changed dra­mat­i­cal­ly in 2019 when three lib­er­al and mod­er­ate jus­tices reached manda­to­ry retire­ment age and were replaced by Federalist Society mem­bers open­ly devot­ed to broad­ly reshap­ing Florida law. On May 26, Gov. Ron DeSantis appoint­ed two new jus­tices, both also mem­bers of the Federalist Society. The Times wrote that, with these appoint­ments, the new court’s ​“eager­ness to over­turn prece­dent set by a more mod­er­ate court is unlike­ly to change. … The court’s assault against prece­dent might only be start­ing, and the appoint­ments are anoth­er reminder that elec­tions have consequences.“