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.