By DARA KAM
THE NEWS SERVICE OF FLORIDA
Arguing that state law requires it, a who’s who of prominent attorneys — including former presidents of the American Bar Association — are advising the Florida Supreme Court to reduce the death sentences of all inmates awaiting execution to life in prison.
The cadre of attorneys, including former Florida Supreme Court justices and associations focused on capital punishment, filed a friend-of-the-court brief on Tuesday, two days before the court is slated to hear arguments in a key case that overturned the state’s death-penalty sentencing structure and resulted in an overhaul of the sentencing law.
The case involves Timothy Lee Hurst, who was sentenced to death for the 1998 killing of a fast-food worker in Pensacola. Hurst was the plaintiff in a legal challenge that led to a U.S. Supreme Court ruling in January that Florida’s death-penalty sentencing system was unconstitutional because it gave too much power to judges, instead of juries.
State lawmakers and Gov. Rick Scott hurriedly overhauled the system during this year’s legislative session in an attempt to resolve the constitutional issues.
But the Florida Supreme Court, which will hear arguments Thursday in the Hurst case, is grappling with whether the U.S. Supreme Court decision should apply retroactively to the 390 inmates on Death Row. Lawyers for Death Row inmates, including Hurst, contend that the prisoners received death sentences under what was an unconstitutional process. Lawyers for the state argue the court should consider the effect of the Hurst ruling on a case-by-case basis and have identified fewer than four dozen cases in which the Hurst ruling could apply.
In the 33-page brief filed Tuesday, the high-profile lawyers argued that a state law crafted in 1972 requires that all of the current death sentences be commuted to life imprisonment without parole. That law came in anticipation of a ruling in a case known as Furman v. Georgia that resulted in a nationwide moratorium on the death penalty.
The law provides that “in the event the death penalty in a capital felony is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court,” the court having jurisdiction over a person previously sentenced to death “shall sentence such person to life imprisonment.”
“Based on a plain reading of this statute, persons previously sentenced to death for a capital felony prior to the decision in Hurst v. Florida, are entitled to have their death sentences replaced by sentences of life without parole,” the lawyers wrote.
In Tuesday’s brief, the lawyers advised the Florida justices to repeat what the court did following the Furman decision, when the death sentences of 100 inmates were reduced to life imprisonment without parole.
“To be sure, (commuting the sentences) has widespread implications,” the lawyers wrote. “…This is not the first time that this court has faced such a sweeping outcome following the invalidation of the death penalty, and it would not be the first time that the court has determined that a life sentence (or term of years) must be imposed on every individual on Death Row.”
The 1972 law “suffers no ambiguity,” the lawyers argued.
“Relying on only the plain terms of the statute, which this court’s rules of statutory construction mandate, the legislative intent is manifest,” they wrote. “The statute contains no qualifying or limiting terms as to the ground(s) or breadth of unconstitutionality required to invoke it, nor the number of individuals on Death Row who stand to benefit from the remedy.”
Since the U.S. Supreme Court’s ruling in the Hurst case, the Florida Supreme Court has heard arguments touching on the impact of the ruling in a slew of death penalty cases and has indefinitely postponed two scheduled executions.
Lawyers for Attorney General Pam Bondi, whose office represents the state in death penalty cases, have argued that the Hurst decision did not overturn Florida’s entire death penalty law, only the portion of it dealing with the sentencing procedure.
During arguments heard since the Hurst decision, some of the justices have appeared to agree with the state’s reasoning.
In one instance, Justice Barbara Pariente dismissed reliance on the 1972 law because “the statute wasn’t found in its whole unconstitutional.”
“I think the argument that defendants have been making is fallacious that they would all have to be reduced to life,” Pariente said during a hearing in the case of Kenneth Jackson in March.
But in Tuesday’s brief, the lawyers insisted that the court should heed the “plain language contained in the first sentence” of the law, which “could not offer a clearer command: Upon the condition precedent that the death penalty in a capital felony is held unconstitutional by this court or the United States Supreme Court, the court having original jurisdiction over the case ‘shall’ resentence the defendant to life imprisonment.”
Lawyers signing onto Tuesday’s brief included former Florida Supreme Court justices Harry Lee Anstead, Gerald Kogan and Rosemary Barkett; former American Bar Association presidents Martha Barnett and Sandy D’Alemberte, who also served as president of Florida State University; former Florida Bar Association President Hank Coxe; the Florida Association of Criminal Defense Lawyers; Florida Capital Resource Center; and the Florida Center for Capital Representation at Florida International University,
The attorneys and former judges “devote or have devoted much of their time and efforts to safeguarding the constitutional rights of capital defendants,” they wrote in the friend-of-the-court brief, known as an “amicus curiae,” filed in the cases of Hurst and two other Death Row inmates. The court is scheduled to hear arguments in the three cases on Thursday.
In briefs, Hurst’s attorneys have raised a series of arguments related to the U.S. Supreme Court ruling, including that the convicted killer received the death sentence under what was an unconstitutional process.
But Bondi’s office has argued in court papers that the Florida Supreme Court should reject Hurst’s request for a life sentence, in part contending that any error in his death sentence was “harmless.”