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Romano: An odd rationale for Supreme Court death penalty reviews

The Florida Supreme Court is headquartered in the Supreme Court Building at 500 S Duval St. in Tallahassee. [Handout]
Published Feb. 5, 2018

Decisions have been coming out of the Florida Supreme Court so quickly the past two weeks, they're starting to read like form letters. Life-or-death form letters.

Since Jan. 22, the court has rejected more than 70 requests from death row inmates to have their sentences reviewed by a jury. Mind you, these aren't just random prayers from desperate prisoners.

The U.S. Supreme Court ruled two years ago that Florida's longtime method of handing down punishments in capital cases was unconstitutional. So, naturally, condemned inmates were suddenly eager to have their sentences reviewed and, possibly, changed to life in prison.

And the Florida Supreme Court supports that. Up to a point.

And that point is June 24, 2002.

The court has basically drawn a line on a calendar when it comes to whether prisoners get a chance to argue that their constitutional rights were infringed.

"It's not honest. It's not proper,'' said Stephen Harper, director of the Florida Center for Capital Representation. "There are a number of people who will not get relief even though they have very strong cases.''

Here's the basic issue:

Florida used to have juries vote on whether to recommend a death sentence, and then allowed a judge to make the final decision. When faced with a similar situation in a case in Arizona in 2002, the U.S. Supreme Court ruled that judges should not be making that call.

It took 14 years, and another U.S. Supreme Court decision, for Florida to figure that out. The Legislature has since passed a law requiring a unanimous jury verdict for a death sentence. Where it gets tricky is the retroactive issue.

The Florida Supreme Court has essentially said the state screwed up by not paying attention to the Arizona case, and thus any death row cases from 2002-16 should be subject to review.

That makes sense. The sentences, after all, were unconstitutional.

But so were the cases prior to 2002, right?

"The Florida Supreme Court's decision to make the rule retroactive to some people but not others, finds absolutely no support in anything that I'm aware of anywhere in the country,'' former Stetson law professor and current U.S. Court of Appeals Judge Michael Allen told a Florida legislative committee last year. "It really is like being pregnant. You either are pregnant, or you're not. There is no middle.

"A constitutional rule is either retroactive to people, or it's not. Because the result of this is truly strange.''

You want strange? Consider this scenario: Two juries recommend death. One by a 7-5 vote in May 2002. Another by an 11-1 vote in July 2002. The defendant from May is out of luck. The defendant in July could be re-sentenced.

If you were suspicious, you might even wonder if the decision had anything to do with the practical matter of re-doing hundreds of sentences. The state already will have to review about 150 cases post-2002, and would have about 200 more if pre-2002 cases were considered.

A bill (SB 870) is scheduled to be heard in a Senate judiciary committee this morning that would expand the number of retroactive cases, but it's hard to imagine the Legislature going down that road.

Meanwhile, the Florida Supreme Court has its own version of fair play.

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