I’ve now been moved back to a regular death row wing as we await a ruling from the Florida Supreme Court on whether the January decision by the U.S. Supreme Court in Hurst v Florida is retroactive to all Florida cases.
I remain in regular communication with my lawyers and am told that the Florida Supreme Court is still ordering legal counsel in other capital cases to submit arguments on this Hurst issue. That implies that the Florida Supreme Court has not decided what they will do. And considering the importance of this issue it's a good thing that they are taking their time and hopefully will do the right thing when they do rule.
To be clear, what this issue comes down to is whether the Supreme Court’s ruling in Hurst declaring Florida’s process for deciding whether someone should be sentenced to death is unconstitutional will apply only to a limited number of cases (those most recently sentenced to death who are still pursuing their first round of appeal), or must it apply to everyone?
The legal argument comes down to what would be fair? The state argues that “retroactive” application of Hurst to all cases would not be fair to the state, who has spent years pursuing the finality of that sentence by execution or the victim's family who are entitled to closure.
On the other hand, our argument is that it would violate fundamental principles of law prohibiting arbitrary and unfair application of laws if the court says that those most recently sentenced to death are entitled to have their sentences vacated under Hurst while those under death sentences imposed longer are not entitled to that same relief under indistinguishable circumstances.
The state's primary argument is that in a similar case in 2002 (Ring v Arizona) the Supreme Court already said that this type of ruling cannot be applied retroactively (See, Summerlin v Schivo, (2003)). But the problem with the state’s argument is that it ignores the undisputed fact that the Summerlin case was based exclusively upon application of the Federal standard of retroactive application ~ and that the state court is not obligated to follow that Federal standard of retroactive application.
What all this really comes down to is that the states are constitutionally empowered to adopt more liberal applications of retroactive law. In Florida, this state standard was established long ago in Witt v State, in which under state law the primary element in deciding retroactive application simply comes down to doing what is fair and right ~ and not the Federal standard of relying heavily upon rules of procedure and finality.
For this reason the lawyers remain confident that the Florida Supreme Court will rule in my favor and hold that Hurst v Florida will apply to all Florida death row cases.
And if I win this argument in my case then pretty much everyone else on Florida’s death row will also have their death sentence vacated.
Assuming for the moment that we do win this, then what? Technically. the court will most likely order a new sentencing process for all 390 Florida death row prisoners before a new jury. But it is extremely unlikely that the state of Florida would actually pursue new death sentences as the average capital sentencing costs about $250,000 each as in each case the defendant is legally entitled to obtain a mitigation specialist and necessary mental health experts as well as call witnesses to establish the “mitigating” circumstances applicable to each case. Likewise, the state is entitled to call it’s own expert witnesses and present the evidence necessary to establish the aggravating factors supporting a sentence of death.
What this means is that attempting to resentence all those currently on Florida’s death row would cost about one hundred million dollars and quite simply, the state just doesn’t have that money available. For that reason alone the majority of those currently on death row would simply have their sentences reduced to to life in prison. For those convicted prior to 1995, that “life” sentence means that they must serve at least 25 years before becoming eligible for parole ~ those convicted after 1995 would never become eligible for parole under the current “life without parole” law.
Myself, I was convicted in early 1984 and if the court rules in my favor then I would go from being on death watch facing imminent execution today to being technically eligible for parole tomorrow. Because by law each of us are legally entitled to credit for all time served on death row, technically I would have become eligible for parole in March 2008.
But the reason I repeatedly say “technically” is because the grant of parole is completely within the discretion of the parole board and history has shown that Florida’s parole board very rarely grants parole to anyone convicted of violent crimes.
The real irony in that is that virtually every credible study on which prisoners are most likely to commit another crime if released shows that those convicted of murder are the least likely to reoffend. But it doesn’t have anything to do with truth or justice… the decision to grant parole is based exclusively upon politics and little else.
However, politics do change and there are many today ~ including many conservatives ~ that think it’s time to reform the current system and bring an end to locking people away and throwing away the key. Quite simply, there’s a growing chorus of change and it’s now entirely conceivable that within the foreseeable future, parole will once again be available.
As all this remains yet undetermined the reality that I’m dealing with is that only a couple of weeks ago I was facing the probability of being put to death by execution. The court ordered a stay of execution as they consider how Hurst will apply. Then I was removed from the death watch holding area and placed back on a regular death row wing.
And today I can sit here and contemplate the increased likelihood that I will one day yet walk out that front gate of the prison and back into the real world. I can dream of what I would do if only I was allowed to go home. For many of those incarcerated as long as I have been, there’s little waiting for them outside the prison, but for me, I’m blessed in that I have family ~ parents, siblings, children, and grandchildren ~ and I have friends anxiously awaiting that day when I might yet walk to freedom. It’s not just my dream ~ it’s their dream too.
So, that’s the big change… although still technically on death watch. We all have renewed hope and where just a few weeks ago we were talking about my funeral preparations, today we talk about that possibility of freedom. That’s the power of hope and hope springs eternal.