Florida Supreme Court Recesses With No Hurst Decision

Thursday, July 7th was the final day that the Florida Supreme Court issued opinions before their summer break.  The session ended without rulings on the constitutionality of the state’s death penalty until its next term begins in late August.  This means there will be no executions in Florida for the next two months.  You can read a news article that quotes attorney Martin McLain by using this link: Miami Herald July 7, 2016.  We will keep you apprised of any updates as they develop.

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Ten Reasons to End the Death Penalty

Each week of the 2016 Legislative Session, members of TCADP distributed post cards that offered ten different reasons to end the death penalty.  Each link below will take you to the weekly card and issue.

Week 1 – Innocence – #1 Frank Lee Smith

Week 2 – Victims – #2 New Victims

Week 3 – Model Code – #3 Model Code

Week 4 – Groveland Four – #4 Groveland Four

Week 5 – Mental Illness – #5 mental illness

Week 6 – Maze of Unfair Practices – #6 Maze of Unfair Practices

Week 7 – Deterrence – #7 Deterrence

Week 8 – Innocence – #8 Innocence

Week 9 – Collateral Damage – #9 Collateral Damage

Week 10 – Arbitrary – #10 Arbitrary

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Rick Scott set the record for more executions than any Florida governor in modern times.  

Florida Governors and Executions

GOVERNOR

TERM

EXECUTIONS 

Bob Graham

1979 – 1987

 16 total = 8 average per term

Bob Martinez

1987 – 1990

   9 total = 9 average per term

Lawton Chiles

1991 – 1998

 18 total  = 9 average per term

Jeb Bush

1999 – 2006

 21 total = 10+ average per term

Charlie Crist

2007 – 2010

   5 total = 5 average per term

Rick Scott

   2011 – present

 23 total = 20 average per term

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U.S. Supreme Court Approves Execution Drugs

WASHINGTON — The Supreme Court ruled on Monday against three death row inmates who had sought to bar the use of an execution drug they said risked causing excruciating pain.

Justice Samuel A. Alito Jr. wrote the majority opinion in the 5-to-4 decision. He was joined by the court’s four more conservative justices.

The drug, the sedative midazolam, played a part in three long and apparently painful executions last year. It was used in an effort to render inmates unconscious before they were injected with other, severely painful drugs.

Four condemned inmates in Oklahoma challenged the use of the drug, saying it did not reliably render the person unconscious and so violated the Eighth Amendment’s ban on cruel and unusual punishment. Lower courts disagreed.

Oklahoma and several other states started to use midazolam in executions after manufacturers in Europe and the United States refused to sell them the barbiturates that were traditionally used to produce unconsciousness.

Lawyers for the Oklahoma inmates, with the support of experts in pharmacology and anesthetics, said midazolam, even if properly administered, was unreliable. They pointed to three executions last year that seemed to go awry.

In April 2014, Clayton D. Lockett regained consciousness during the execution procedure, writhing and moaning after the intravenous line was improperly placed. In Ohio in January 2014 and in Arizona in July, prisoners appeared to gasp and choke for extended periods.

Justice Alito wrote that the inmates had failed to identify an available and preferable method of execution or made the case that the challenged drug entailed a substantial risk of severe pain.

In dissent, Justice Sonia Sotomayor, joined by the other three members of the court’s liberal wing, said “the court’s available-alternative requirement leads to patently absurd consequences.”

“Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment — the chemical equivalent of being burned alive,” she wrote. “But under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death or actually burned at the stake.”

Click here for: Highlights of the Supreme Court’s Decision

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New York Times

The use of a lethal-injection drug involved in prolonged, apparently agonizing executions last year will come under scrutiny in the Supreme Court on Wednesday as the justices hear a case brought by three condemned prisoners from Oklahoma.

The prisoners, convicted murderers, are challenging the use of the sedative midazolam as the first step in executions. Lawyers for the prisoners, with the support of many medical experts, say that even if properly administered, the drug cannot reliably cause deep unconsciousness before the injection of other extremely painful agents that cause death.

Oklahoma and several other states have turned to midazolam because manufacturers in Europe and the United States have refused to sell them the barbiturates traditionally used in executions. Officials from these states argue that when properly administered, midazolam does render prisoners insensate.

They also say that they have adopted new procedures to prevent mishaps like the gruesome execution in Oklahoma last April of Clayton D. Lockett, who moaned and writhed in a procedure involving midazolam that took 43 minutes after the intravenous line was improperly placed. The sedative was also used in executions in Arizona and Ohio in which prisoners gasped for prolonged periods — for nearly two hours in the Arizona case.

Clayton D. Lockett, who regained consciousness and writhed in apparent pain during his prolonged execution in Oklahoma last year. Credit Uncredited/Oklahoma Department of Corrections, via Associated Press .

The Supreme Court has not examined lethal injections since 2008, when it held that what was then the standard three-drug combination did not violate the Eighth Amendment’s ban on cruel and unusual punishment. But multiple opinions in that ruling revealed a splintered court and left uncertainty about crucial questions, said Deborah W. Denno, a law professor at Fordham University, including what standards states should apply as they adopted other drugs and combinations, and when the courts should grant stays of execution.

In one striking sign of continued divisions, the Supreme Court did not delay the Jan. 15 execution using midazolam of a fourth Oklahoma prisoner who was originally part of the current lawsuit, Glossip v. Gross, No. 14-7955. That would have taken five votes. Yet little more than a week later, it agreed to hear the appeal of the other three men scheduled for executions, which required just four votes.

Lawyers for the prisoners say that there is a “scientific consensus” that midazolam “cannot reliably produce deep, comalike unconsciousness,” and that its use risks inflicting “agonizing pain and suffering” on prisoners.

The scarcity of time-tested anesthetics has led to turmoil in capital punishment as states have tried new drugs and combinations, sought drugs from secret sources and passed laws to conceal the identity of drug suppliers.

Some states have also revived plans for use of the electric chair, firing squads or, in the case of Oklahoma, nitrogen gas. But lethal injection remains the preferred option.

In the 2008 case, Baze v. Rees, condemned prisoners in Kentucky argued that the state’s three-drug regime violated the constitutional ban on cruel and unusual punishment because it risked causing severe suffering.

The prisoners conceded that the execution would be constitutional if performed correctly, but said there was a significant risk that the barbiturate could be improperly administered, causing the prisoners to suffer agony that would then be masked by the paralytic.

The Supreme Court ruled that the chance of an injection mishap did not present a “substantial” or “objectively intolerable” risk. The legality of that three-drug regime, at least, was established.

But with the refusal of manufacturers to sell sodium thiopental as well as pentobarbital, another barbiturate that can reliably induce coma and death, these drugs have become scarce.

The 2008 case turned on the possible misadministration of drugs. In contrast, the new case argues that midazolam cannot reliably meet a constitutional standard even when it is properly used, said Megan McCracken, a legal expert with the Death Penalty Clinic at the University of California, Berkeley, School of Law.

“This is an opportunity for the court to prevent other states from adopting a drug that has been so problematic,” Ms. McCracken said.

But Florida officials, in a brief to the Supreme Court, said Florida’s experience with midazolam in 11 “uneventful executions” showed that it can work well. They said barring its use would “threaten the ability of Florida and other states to carry out the punishments their citizens have selected.”

Another question posed in Wednesday’s case is whether those challenging a lethal injection protocol must show that alternative drugs are available.

A brief filed by Alabama, joined by 12 other states, charges that the Oklahoma prisoners’ suit is part of a pattern of “thinly veiled attempts to prevent an offender’s execution by any method.” The solution, it says, is to require the plaintiffs “to present an acceptable, available alternative to the state’s protocol.”

Eric M. Freedman, a professor of law at Hofstra University, called this argument unfair.

“It is the government’s obligation to conduct an execution that is not cruel and unusual,” he said. “The government cannot shift that obligation to the prisoner.”

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The Death Penalty: How Does it Impact the Family of the Victim?

                                     Monday, April 13 at 7 pm — Amtrak Community Center — 918 Railroad Avenue
Kathy Dillon-comWhen Kathy Dillon was 14 years old, her father was shot and killed in the line of duty on the New York State Thruway.  Emerson Dillon was a New York State Trooper who pulled over a car whose occupants had been involved in a robbery. The shooters got away, but were later caught and charged with murder.  Ten years later her boyfriend, David Paul, was also shot and left to die on a roadside.

Kathy writes and speaks publicly from the perspective of having lost both her father and her boyfriend to murder. She has spoken at churches, panel discussions, conferences, and public forums of various kinds. Kathy belongs to Murder Victims’ Families for Reconciliation and Murder Victims’ Families for Human Rights. She is a former board member of Floridians for Alternatives to the Death Penalty.

“The death penalty was in place in New York State for first-degree murder of a police officer, but it didn’t protect my father that day. I don’t believe that it has a deterrent effect. And for me, it always comes down to my belief that humans shouldn’t have the power to decide who lives and who dies. I feel that it is wrong for one person to take the life of another, either in an attack of violence or in response to violence.”

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A Stay of Execution for Jerry Correll

Friends,

Governor Rick Scott’s scheduled 22nd execution will not take place this month.  The execution of Jerry Correll scheduled for Thursday, February 26th has been stayed by the Florida Supreme Court in a 5 to 2 opinion today.

Justices Labarga, Pariente, Lewis, Quince and Perry concurred with an opinion written by Justice Labarga.  Justice Canady dissented and Polston concurred with his dissent.

  • The Court’s decision is based upon Florida’s use of the drug midazolam which is used in the lethal injection protocol.
  •  The use of midazolam in executions is being reviewed by the U. S. Supreme Court in response to an Oklahoma case, Glossip v. Gross.
  • Oklahoma’s protocol and Florida’s protocol are nearly identical.
  • Oral arguments in the U. S. Supreme Court case will be held during the last week of April and a decision is expected around the last week of June.
  • This will likely mean there will be no executions in Florida until there is an outcome of the U.S. Supreme Court case.

Some important sections of today’s Florida Supreme Court opinion are cited below.  (Emphasis added)

Because our jurisprudence is bound by the Eighth Amendment jurisprudence of the United States Supreme Court, if use of midazolam as the first drug in a three-drug lethal injection protocol is determined to be cruel and unusual—and therefore unconstitutional—then Florida’s precedent approving the use of midazolam and the current Florida three-drug protocol will be subject to serious doubt as to its continuing viability.

Without a stay of execution in this case, Florida risks the unconstitutional execution of Correll, for which there is no remedy.  In contrast, a stay pending determination of the issue in the United States Supreme Court will not prejudice the State and, more importantly, will ensure that Florida does not risk an unconstitutional execution, a risk that would threaten the viability of Florida’s entire death penalty scheme. For all these reasons—the most significant being the pending Supreme Court review of a protocol for which review had been denied in the past—this Court must err on the side of extreme caution and grant a stay of execution for Correll.

You can read the 15 page order here: http://www.floridasupremecourt.org/pub_info/summaries/briefs/15/15-147/Filed_02-17-2015_Order_Granting_Stay.pdf

We will update you as things develop.

Sheila Meehan
Chair, TCADP

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Faith Community Responses to the Death Penalty

FAITH COMMUNITY RESPONSES TO THE DEATH PENALTY

Inspired by a suggestion and some ground work laid by Rev. Emory Hingst, several TCADP members put the finishing touches on a booklet of  statements on the death penalty from approximately twenty different faiths.  Nancy Smith Fichter and Robert Fichter worked to get as many statements as possible and to obtain the most current available.  We printed 350 booklets and are making sure that every member of the Florida Legislature, Governor Rick Scott, and Attorney General Pam Bondi, all have a copy.  Click the link to download a copy of this booklet published by TCADP as part of our lobbying effort.

Faith Comments 2-4-13

 

 

The Death Penalty: Evolving Issues in Florida

The Florida State University Center for the Advancement of Human Rights & the American Bar Association present:The Death Penalty: Evolving Issues in Florida

A two-hour forum that will include perspective and commentary from FSU President Emeritus, former Dean of the College of Law and former American Bar Association President Talbot “Sandy” D’Alemberte; former Florida Supreme Court Justice Raoul Cantero; 2nd Judicial Circuit Judge Janet Ferris (retired); 18th Judicial Circuit Judge O.H. Eaton (retired) and former member of the ABA Florida Death Penalty Assessment Team; Harry Shorstein, former Fourth Continue reading ‘The Death Penalty: Evolving Issues in Florida’ »

Florida’s Catholic bishops repeated their plea for Gov. Rick Scott ….

Travis Pillow writes in the Florida Independent that Florida’s Catholic bishops repeated their plea for Gov. Rick Scott to call off the execution of Manuel Valle, the subject of Scott’s first death warrant.

Death Penalty, Still Racist and Arbitrary

Op-Ed Contributor, New York Times

By DAVID R. DOW
Published: July 8, 2011, Houston
LAST week was the 35th anniversary of the return of the American death penalty. It remains as racist and as random as ever.
Several years after the death penalty was reinstated in 1976, a University of Iowa law professor, David C. Baldus (who died last month), along with two colleagues, published a study examining more than 2,000 homicides that took place in Georgia beginning in 1972. They found that black defendants were 1.7 times more likely to receive the death penalty than white defendants and that murderers of white victims were 4.3 times more likely to be sentenced to death than those who killed blacks. Continue reading ‘Death Penalty, Still Racist and Arbitrary’ »

Commission on Capital Cases gets put to sleep ….

 

A commission established by the Florida Legislature almost 15 years ago to monitor the administration of justice in death penalty post-conviction proceedings has itself been sentenced to death.

The unintended consequences may be significant.

The Commission on Capital Cases, a relatively obscure entity, was abolished earlier this month purportedly to “save” $400,000 in related costs. Among its tasks was to receive public input, and advise and make recommendations to the governor, Legislature and Florida Supreme Court.

The current slate of commissioners, a Republican and a Democrat from the Senate and the House, a retired District Court of Appeal judge and a former county court judge, seemed poised to play a more active role than their immediate predecessors.

However, the Florida Senate adopted a relatively low-profile and late-emerging House conforming bill during the final hours of the 2011 regular legislative session without deliberation.


Death Penalty Information Center report

On December 21, the Death Penalty Information Center released its latest report, “The Death Penalty in 2010: Year End Report,” on statistics and trends in capital punishment in the past year.  The report noted there was a 12% decrease in executions in 2010 compared to 2009 and a more than 50% drop compared to 1999. DPIC projected that the number of new death sentences will be 114 for 2010, near last year’s number of 112, which was the lowest number since the death penalty was reinstated in 1976. Death sentences declined in all four regions of the country over the past ten years, with a 50 percent decrease nationwide when the current decade is compared to the 1990s.  Only 12 states carried out executions in 2010, mostly in the South, and only seven states carried out more than one execution. Texas led the country with 17 executions, but that was a significant drop from last year.  The number of new death sentences in Texas this year was 8, a dramatic decline from 1999 when 48 people were sentenced to death.  Since the death penalty was reinstated in 1976, 82% of the executions have been in the South. California has not had an execution in almost 5 years, and the same is true for North Carolina, Maryland, Pennsylvania, and many other states that rarely carry out the death penalty.  “Whether it’s concerns about the high costs of the death penalty at a time when budgets are being slashed, the risks of executing the innocent, unfairness, or other reasons, the nation continued to move away from the death penalty in 2010,” said Richard Dieter, DPIC’s Executive Director and the report’s author.

Practicing Medicine on Death Row

Thursday 09 December 2010

by: Robert Wilbur, t r u t h o u t | News Analysis

Practicing Medicine on Death Row ( Edited: Jared
Rodriguez / t r u t h o u t)

Execution by lethal injection has shone a harsh light on the complicity
of health professionals – physicians, nurses and paramedics – in
carrying out capital punishment. In a 2001 survey in the prestigious
journal, Archives of Internal Medicine, an astonishing 41 percent of
physicians surveyed said that they would assist or even carry out an
execution by lethal injection and there is little evidence that the
percentage has changed significantly since then. Deborah W. Denno JD,
PhD, a leading scholar of death penalty litigation at the Fordham
University School of Law in New York City, remarked that physician
participation in executions is more prevalent than one might think,
although exact numbers are not available because of the secrecy
surrounding executions. And this does not even include the nurses and
paramedics (also known as Emergency Medical Technicians or EMTs) who
head up the execution teams in many states. Interestingly, the
leadership of several major organizations have taken a more enlightened
view on executions than many of their members.
Continue reading ‘Practicing Medicine on Death Row’ »

Restoring fairness to the death penalty

Daniel Ruth St Petersburg Times Correspondent
Restoring fairness to the death penalty,
In Print: Tuesday, November 30, 2010
Imagine lying on a gurney, a needle inserted in your arm. The clock ticks toward the appointed hour. In minutes you’ll be — dead.
The only thing standing between your last breath and a reprieve is the U.S. Supreme Court. Maybe you are guilty of your crimes. Then again, maybe you’re not. And maybe nobody cares.
At a moment like this, that person facing society’s ultimate sanction should have at the very least an expectation he will get a fair shake from the judicial system. After all, once the switch gets thrown, there are no mulligans on death row. Continue reading ‘Restoring fairness to the death penalty’ »

State must act to fix flaws in the death penalty

ABA Forum in Tallahassee with the Florida State University Center for the Advancement of Human Rights.


My View essay in October 30th, 2010 edition Tallahassee, Democrat

Raoul G. Cantero III and Mark R. Schlakman


F
our years ago, the American Bar Association released a comprehen­sive Florida Death Penalty Assessment Team report that raised serious concerns about the state’s death penalty process. Since then, with few exceptions, state government has done little to remedy problems identified in the report.

To conduct the assessment, the ABA assembled a diverse and highly qualified eight member team to work in collaboration with its Washington, D.C. based staff.

The objective was to ensure that prosecutorial, defense, judicial, academic and other relevant perspectives were adequately represented when assessing Florida’s death penalty process.

The team resolved at the outset that its findings and recommendations had to be unanimous to be included in the report. Put simply, the report’s findings and recommendations were intended to improve the administration of justice in Florida and promote fairness and accuracy in our criminal-justice system without regard to ones views on capital punishment.

Among the key findings was that death penalty defen­dants often receive abysmal legal representation.

The report makes sever­al related recommendations, including reinstating the Capital Collateral Regional Counsel office in the north­ern region of Florida (it was disbanded within the context of a still ongoing pilot project that relies on private registry counsel). These private law­yers generally don’t specialize in capital defense work nor do they benefit from the supervision and support available to CCRC lawyers in central and south Florida, and they typically receive only nominal compensation for their efforts. Continue reading ‘State must act to fix flaws in the death penalty’ »