Florida’s recklessness with death

The state of Florida is playing fast and loose with the death penalty. Louis Gaskin is scheduled to be executed April 12, 2023. Darryl Barwick is scheduled to be executed May 3, 2023.

Meanwhile, the Legislature is working in earnest to pass laws that make it easier to impose a death sentence and laws that would expand capital punishment to non-homicide crimes, despite long-standing U.S. Supreme Court precedent saying such laws are unconstitutional.

Gov. DeSantis has signed three death warrants this year. First, he signed the warrant for Donald Dillbeck’s execution the same day he publicly announced he would support legislation that would reduce the jury vote necessary to impose a sentence of death from 12-0 to 8-4. Dillbeck was executed February 23, 2023.

Second, Gov. DeSantis signed the warrant for Louis Gaskin’s execution in March, as the 8-4 legislation moved through the Legislature. As Maria DeLiberato and I wrote in a former Opinion published by Miami Herald, Dillbeck and Gaskin “seeme[d] to have been chosen on purpose because of the jury’s [8-4] vote[s] to recommend a sentence of death”– the same jury vote the Legislature now proposes as the new standard in pending legislation, consistent with DeSantis’s suggestion. If passed, Florida will have the lowest requirement in the country for sentencing someone to death.

Gaskin has filed several requests for relief in the Florida Supreme Court, all of which must be decided ahead of the execution.

Third, Gov. DeSantis signed Barwick’s warrant on April 3. Significantly, Barwick’s warrant marks the first time since 2015 – before the U.S. Supreme Court held in 2016 that the way Florida sentenced people to death violated the Sixth Amendment–that more than one inmate has been on death watch with an active warrant at the same time.

Meanwhile, the Florida Supreme Court is incomplete in light of Justice Ricky Polston’s recent abrupt resignation from the Court, effective March 31, 2023. As a result, the Court will be incomplete for the last two weeks of Gaskin’s warrant period – including when the Court will render its decisions on Gaskin’s final claims and the date of the scheduled execution. Indeed, the Judicial Nominating Commission has announced it will accept applications for the opening through April 17, 2023. Likewise, the Court will be incomplete for at least the first part of Barwick’s warrant period—possibly through the date of his scheduled execution.

According to the Court’s Internal Operating Procedures (IOPs), a quorum of the Court is five justices. If fewer than five justices are able to participate in a case, there is a procedure for the chief justice to appoint a judge from a district court of appeal to serve. The current version of the IOPs is dated February 18, 2021—before the state’s new Sixth District Court of Appeal opened.

While the Court will likely have quorum on Gaskin’s and Barwick’s cases, each justice’s vote matters—most significantly in these cases that are a matter of life and death.

Gaskin has been on Florida’s death row for over 20 years and has unsuccessfully filed numerous requests for relief from his sentence of death – including several claims that his sentence stands in violation of the Sixth Amendment to the U.S. Constitution because it was imposed under Florida’s prior unconstitutional capital sentencing scheme. He and his attorneys are now litigating his final claims in an effort to avoid the scheduled execution–a process that is taxing on everyone involved, including the Court. Barwick and his team are facing the same process.

If the Court did lack quorum for some reason, the procedure to appoint a district court judge to fill a vacancy does not seem adequate considering Florida’s district courts do not review capital cases, which go straight to the Supreme Court from the trial courts under Article V of the Florida Constitution.

While capital punishment remains legal in the United States, the U.S. Supreme Court has made clear that “death is different” and should not be taken lightly. Florida’s recklessness toward the death penalty surely conflicts with the “evolving standards of decency,” which is the governing standard for the Eighth Amendment’s protection against cruel and unusual punishment.

Melanie Kalmanson has been a member of The Florida Bar since 2016 and serves on the Steering Committee for the American Bar Association Death Penalty Representation Project.

JOIN THE CONVERSATION

Send letters to the editor (up to 200 words) or Your Turn columns (about 500 words) to letters@tallahassee.com. Please include your address for verification purposes only, and if you send a Your Turn, also include a photo and 1-2 line bio of yourself. You can also submit anonymous Zing!s at Tallahassee.com/Zing. Submissions are published on a space-available basis. All submissions may be edited for content, clarity and length, and may also be published by any part of the USA TODAY NETWORK.

This article originally appeared on Tallahassee Democrat: Florida’s recklessness with death