Death Watch Journal (part 21)

Is Florida about to crank up it's killing machine again? While executions have been on hold since the Florida Supreme Court granted me a stay of execution days beforeI was to be put to death in early February following a decision in Hurst v Florida (which declared the way Florida decides who is condemned to death unconstitutional) it would appear that this week's decision by the Florida Supreme Court in Mullens v State has now effectively cleared the path for some executions to proceed - but not mine, at least not yet.

There has been an assumption that since I was the next in line for execution, my case would decide whether any executions would proceed. But nothing is ever that predictable in the administration of death penalty law. To be honest, I wasn't too excited about having my case decidethis issue, but I didn't exactly have much of a choice.

If not for the January 2016 decision by the United States Supreme Court in Hurst v Florida it's almost certain that I would have been executed on February 11, 2016. In that Hurst case the USSC declared that Florida law that allowed a judge to determine whether a person was eligible for the death penalty was unconstitutional as under the sixth amendment only a jury can make the factual determinations necessary to impose death.

Using my own case as an example, as with most Florida cases, the jury heard evidence of both why death should be imposed (aggravating circumstances) and why it should not be imposed (mitigating circumstances) then merely made a "recommendation" that death should be imposed, which the judge then reviewed, and writing up his own "findings in support of sentence of death". On march 22, 1984 I was formally condemned to die.

Over 80 men and women have been executed in the state of Florida between 1979 and 2016 under this illegal process, the latest execution being Oscar Bolin on January 7, 2016 (please read: "Execution Day: Involuntary Witness to State Sanctioned Murder"). I was to follow Oscar Bolin into the death chamber on February 11, 2016, but just as I was preparing to go into "phase II" of the death watch process, I was granted a "temporary stay" as the Florida Supreme Court weighted whether this Hurst v Florida decision was retroactively applied to older case such as mine.

As I write this, it has been 145 days since I received that temporary stay of execution. Each and every day I would watch the news anxiously awaiting that decision as to whether I would live or die. I would follow every case that addressed the issue as a growing body of lawyers and judges called upon the Florida Supreme Court to do the right thing and reduce all death sentences to life.

Myself and many others around me speculated on just what the court will rule and debated whether having a death sentence is reduced to life would be doing us a favor or condemning us to have faith even worse than death.... to slowly rot away in the prison system until we inevitable die of old age.

                                                           

Finally just this week the Florida Supreme Court gave us a glimpse into how the Hurst versus Florida decision might apply, or more accurately, how it would not apply. In the case of Khaddafi Mullens v State of Florida, the Florida Supreme Court declared that Hurst vs. Florida does not apply to Mullens because he waived his right to sentencing by jury. This is the first case to address application of Hurst and it's not a good sign.

The significance of this ruling is that it can now be used to exclude a larger number of Florida'd death sentenced prisoners from any relief under Hurst vs. Florida. Keep in mind that in Hurst, the US Supreme Court simply stated that only a jury can decide whether the elements necessary to justify a death sentence can be found. But under this same sixth amendment, it has long been recognised that the defendant can waive his right to have a jury decide his fate.

Although Mullens was on direct appeal, and his case would still have many more levels of appellate review before both the state and federal courts, there is actually a surprisingly large number of death sentenced prisoners who, like Mullens, waived their Sixth Amendment right to a jury at sentencing who have already exhausted their state and federal appeals and could now be targeted by Florida Governor Rick Scott for execution.

One might wonder why anyone facing the possibility of death would waive their fundamental constitutional right to have a jury decide their fate. But the truth is that many do. Some waive their right to jury determination because they feel having their case heard by only a judge would be preferable, while the majority of others waive their right to jury determination because they actually wanted to be sentenced to death and opposed presentation of any "mitigating" evidence.

This is something you rarely hear the courts or media talk about. There are many who actually wanted to be condemned to die, each for their own reasons. Some genuinely felt remorse for the victim and believed that justice could only be served if they were executed.  Others opposed any mitigation as they did not want to be sentenced to "life". They knew that they were only two choices ..life in prison with no chance of ever being free, or death. And they choose death.

Some find that decision difficult to comprehend. For most, if asked whether they would like to live or die, the answer is no brainer as it is our natural instinct to want to live. But in all fairness, I think the question is more comparable to asking someone with a terminal disease whethey would prefer to be put to death, or die slowly, as either way they know they're not coming out of this alive.

Those familiar with the prison system know only too well what awaits them if they are sentenced to life. See, that's something you'll never get the pro death penalty proponents to understand - that if they really wanted to make "murderers" suffer, instead of putting them to death they should sentence them to "life" in prison, as it truly is a fate worse than death. And those who know it will often ask the court to sentence them to death.

When someone is sentenced to death, they are placed in continuous solitary confinement, leaving that six foot concrete crypt only for at most a few hours each week for recreation on an enclosed concrete "yard". Condemned prisoners are not allowed to work a prison job, or go to the dining hall for meals or even participate in church services. They are simply warehoused in that solitary crypt until the state gets around to killing them decades later. And it's not much of a life, and most go crazy in their own way. But at least there's that morbid hope that the nightmare will come to an end when they are executed.

In contrast, if sentenced to life they are cast down into what most amounts to a  jungle and forced to survive among both man and beast, only too often preyed upon, if they don't evolve into the predator themselves.

Doing life without any hope of being released truly is a long death sentence, as Pope Francis recognized when he visited the United States last year and called for not only the abolishment of the death penalty, but also of mandatory life sentences, which he referred to as a "slow death penalty".

Recently this was addressed by the Florida Supreme Court in the case of Atwell vs State (decision dated May, 2016). In that case, Angelo Atwell was 16 years old in 1990 when he committed a robbery and murder, and was subsequently sentenced to life on both counts. However, in 2010 the United States Supreme Court held in Graham vs Florida that sentencing juveniles to life with no possibility of release amounted to cruel and unusual punishment because juveniles are not as capable as adults.

Florida then tried to weasel out of it by saying that Atwell would be assigned an "objective" parole date of 2130, meaning that Atwell did have reason to believe he would be freed; all he had to do was live to be 156 years old. Florida claimed that since it did provide him a release date (at 156 years old) his life sentences were not in violation of Graham vs Florida.

However, a majority of the Florida Supreme Court disagreed, finding that it was unreasonable to assume that Atwell would live to be 156 years old and a parole date in 2130 effectively amounted to a mandatory life sentence in violation of Graham v Florida.

In reaching this conclusion the Florida Supreme Court recognized that there are currently 4626 inmates in the prison system technically eligible for parole, but that in the fiscal year of 2013-14 only twenty-three of those 4626 inmates were actually granted parole. The conclusion is that for all practical purposes, parole doesn't exist in Florida and those serving a life sentence will die in prison.

This is why so many current death sentenced prisoners would rather not have their  death sentences reduced to life. It's not only those who waived a jury determination of sentence at trial, which are now precluded from relief under  Hurst v Florida, but also many more who now are demanding that their lawyers not raise claims of entitlement to relief under Hurst v Florida.

Myself, I have no intention of waiving anything. I do understand that like everything else in the Florida Criminal Justice system, the parole board haslong been politically corrupted and until they are forced to change there is no reasonable expectation of parole.  Assuming the parole system doesn't change, if those currently sentenced to death have their sentences reduced to life, they will still die in prison, only it will take longer and they'll have to survive in the jungle.

But the way I see it, this recent Atwell vs State case illustrates that not only is change  possible, but it's inevitable. There is a growing force of politicians andjudges who  want to see these mandatory life sentences abolished and the parole system modified to allow for reasonable release on parole.

For that reason I'm willing to fight to have my unconstitutionally imposed sentences of death reduced to life - if I am put to death, I obviously will not have any chance of proving my innocence and winning my freedom. But at least if I had my death sentence reduced to life, then there is still the hope that I can convince the courts to address my claim of innocence, and if not, then at least maybe in coming years what the Florida Supreme Court said in Atwell vs State about juveniles must be given a reasonable release date will extend to adults. If I know nothing else about the criminal justice system, it is that it evolves with society's ever-changing values. And change will come.

One of the guys who is insisting that he be executed rather than slowly die of old age in prison told me that I'm just afraid of dying and I immediately responded: "No, I'm not afraid to die - you're just afraid to live". And as long as I'm alive, I have hope of freedom. But nobody wins freedom from the grave.