The Florida Supreme Court’s U-turn on the death penalty | Editorial
The court is now an outlier in reversing established law and the nation’s social norms
Florida's five Supreme Court justices listen to oral arguments on Feb. 5. Gov. Ron DeSantis appointed two new justices Tuesday. From left: Justice Alan Lawson, Justice Ricky Polston, Chief Justice Charles Canady, Justice Jorge Labarga and Justice Carlos Muniz
Florida's five Supreme Court justices listen to oral arguments on Feb. 5. Gov. Ron DeSantis appointed two new justices Tuesday. From left: Justice Alan Lawson, Justice Ricky Polston, Chief Justice Charles Canady, Justice Jorge Labarga and Justice Carlos Muniz [ Times (2020) ]
This article represents the opinion of the Tampa Bay Times Editorial Board.
Published May 27, 2020

What’s the obsession at the Florida Supreme Court with becoming an outlier on the death penalty, with reversing established law and shaking public confidence in the state’s judicial system? A recent decision by the court, which overturned protections for death row inmates with intellectual disabilities, is only the latest sign of judicial activism out of control, out of sync with the times and out of keeping with the tradition of restraint and following court precedent.

In a case this month, the court ruled 4-1 against Harry Franklin Phillips, who for years has sought to set aside his death sentence for the murder of Bjorn Thomas Svenson, a parole supervisor, in Miami in August 1982. Phillips has argued he cannot be executed because he is intellectually disabled, which the U.S. Supreme Court, in 2002, outlawed as “cruel and unusual punishment.” Phillips wanted his claim reconsidered in light of a U.S. Supreme Court case in 2014 that expanded the basis of disability findings, and under a 2016 decision by the Florida Supreme Court that applied those looser standards retroactively.

At issue was the U.S. Supreme Court’s decision in Hall v. Florida in 2014, which struck down a state law that set an IQ test score of 70 as the maximum threshold for a defendant to present evidence of his intellectual disability. The court found that Florida’s “rigid rule” was not “proper or humane,” out of line with most states and the test’s designers themselves. It held that defendants whose IQ fell within the test’s range of error, or about 5 points, “must be able to present additional evidence of intellectual disability.” In 2016, the Florida Supreme Court found the Hall decision significant enough to apply it retroactively to cases where disability claims had been rejected. Phillips had presented IQ scores in 2006 of 70, 74, and 75.

But the reworked Florida Supreme Court reversed the decision this month, ruling it had erred in 2016 because the IQ threshold was a minor issue. The majority characterized the higher test score as a “procedural” matter. And conveniently, it cited the dissent that Chief Justice Charles Canady wrote on the losing side in 2016, warning that retroactivity posed "the ongoing threat of major disruption to (the) application of the death penalty.”

Canady was joined by Justice Ricky Polston, another on the losing end then, in settling this score. Beyond whipsawing established court precedent, the decision sends a chilling message about the high court’s conscience in handling the most severe punishment society metes out. And it completely ignores the U.S. Supreme Court’s entire point for holding that the intellectually disabled must be given some consideration in presenting their defense.

The court’s lurch to the right on death penalty cases and its easy willingness to jettison legal precedent is bad policy for Florida and bad practice for the courts. In January, the court reversed a previous decision that required unanimous jury recommendations in death penalty sentences. (In response, the Legislature amended the state’s capital sentencing laws in 2017 requiring jury unanimity.)

This eagerness to overturn precedent set by a more moderate court is unlikely to change. Gov. Ron DeSantis named two new justices Tuesday to fill vacancies created when his two previous appointments moved to federal court appointments. John Couriel and Renatha Francis have both been affiliated with the Federalist Society, the conservative-libertarian organization that promotes a “textualist" interpretation of the law - the so-called plain meaning of legal documents. Couriel has no judicial experience; Francis has been a trial court judge for three years and must wait until September to join the bench because she has not been an attorney for 10 years. The court’s assault against precedent might only be starting, and the appointments are another reminder of that elections have consequences.

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Editorials are the institutional voice of the Tampa Bay Times. The members of the Editorial Board are Times Chairman and CEO Paul Tash, Editor of Editorials Tim Nickens, and editorial writers Elizabeth Djinis, John Hill and Jim Verhulst. Follow @TBTimes_Opinion on Twitter for more opinion news