No Court Has Reviewed the Evidence that Gary Bowles May Be Intellectually Disabled; Florida Plans to Execute Him Anyway.

In a case that raises concerns about procedural impediments that prevent enforcement of constitutional rights, Florida is preparing to execute a man whose claim of intellectual disability has never been reviewed by the state or federal courts. [UPDATE: Florida executed Gary Ray Bowles on August 22, 2019.]

In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that the use of the death penalty against individuals with intellectual disability constitutes cruel and unusual punishment, in violation of the Eighth Amendment. Twelve years later, in Hall v. Florida, the Court struck down Florida’s approach to enforcing that prohibition, holding that the state had unconstitutionally required death-row prisoners to meet a 70 IQ-score cutoff before they could be considered intellectual disabled. In 2017, Gary Ray Bowles, whose IQ scores slightly above that cutoff had previously prevented him from obtaining relief under Atkins in Florida’s courts, filed an intellectual disability petition in state court seeking to vacate his death sentence. The petition sat idly for two years while new counsel was appointed to represent Bowles. Then, shortly after new counsel was appointed, and before his petition could be reviewed, Governor Ron DiSantis issued a death warrant scheduling Bowles’ execution for August 22, 2019. The Florida state and federal courts have refused to review the merits of his claim and he has petitioned the U.S. Supreme Court seeking a stay of execution and review of his claim.

Bowles pleaded guilty and was sentenced to death for the 1994 murder of a Jacksonville man in a series of killings targeting gay men. He confessed to the murder of four other gay men and is serving two life sentences. His intellectual disability claim presents evidence of an IQ score of 74, within the accepted range of intellectual disability, and neuropsychological test results showing brain damage consistent with an intellectual disability. Bowles presented statements from witnesses who described him as “forgetful, gullible, naïve, immature, socially inept, impulsive, and lacking a sense of consequences for his actions. He had impaired language skills, could not keep up in conversations, struggled with memory, and could not perform day-to-day tasks such as utilizing public transportation, using money, or seeking employment.”

The Florida courts summarily denied Bowles’ petition as untimely filed. The Florida Supreme Court ruled that under state law enacted to establish procedures for litigating death-penalty intellectual disability claims, Bowles should have filed his claim in 2004. However, Bowles argued that raising his claim at that time, while Florida was applying its 70 IQ-score cutoff, would have been futile and he could not be required to raise a claim that the courts would have rejected out of hand. Rather, he said, it became appropriate for him to raise his claim after the Florida Supreme Court ruled in 2016 that Hall applied retroactively in Florida intellectual disability cases. The Florida Supreme Court rejected those arguments, writing that “Bowles’ inaction should not be ignored on the basis of the perceived futility of his claim.”

Bowles’ petition in the U.S. Supreme Court has gained the support of several prominent groups of defense lawyers and disability advocates. The Florida Association for Criminal Defense Lawyers and the association’s Miami Chapter filed a brief emphasizing the procedural morass created by the Florida Supreme Court’s treatment of intellectual disability claims. The brief argues: “Florida should not be permitted to rely upon a defense lawyer’s failure to foresee the future as an excuse for imposing the ultimate, final, and irreversible punishment of death on an intellectually disabled person.” Disability Rights Florida, the National Disability Rights Network, and the Bazelon Center for Mental Health Law filed an amicus brief arguing that, as no court would allow someone to be executed if they were discovered to have been a juvenile at the time of crime, no court should allow someone to be executed if they are discovered to have intellectual disability. The groups urge the United States Supreme Court to enforce its categorical ban on executing individuals with intellectual disability.

As of the writing of this post, Bowles’ Supreme Court challenge to these decisions remains pending.