Attorney General Weighs In On Death Penalty Changes

By Jim Saunders – News Service of Florida

Published June 5, 2019 at 8:46 AM EDT

Florida Attorney General Ashley Moody - flanked on both sides by Hillsborough County Sheriff Chad Chronister and Pasco County Sheriff Chris Nocco - led a discussion in Tampa Wednesday about mental health and the criminal justice system.

Attorney General Ashley Moody’s office is urging the Florida Supreme Court to reverse course on decisions that allowed dozens of convicted murderers to have their death sentences reconsidered.

Moody’s office late Monday filed a 59-page brief in a case in which the Supreme Court is delving into whether changes in Florida’s death-penalty sentencing system should continue to be applied retroactively to cases dating to 2002.

The issue stems, in large part, from rulings in 2016 by the U.S. Supreme Court and the Florida Supreme Court about the state’s death-penalty sentencing system. It also comes after Gov. Ron DeSantis appointed three Florida Supreme Court justices early this year --- turning what had widely been viewed as a liberal court into a conservative court.

The U.S. Supreme Court in January 2016, in a case known as Hurst v. Florida, ruled that the state’s death-penalty sentencing system was unconstitutional because it gave too much power to judges, instead of juries, in deciding whether defendants should be sent to Death Row. That ruling led to sentencing changes, including requiring that juries be unanimous in finding necessary facts and in recommending imposition of the death penalty.

In a pair of decisions in December 2016, the Florida Supreme Court decided that the sentencing changes would apply retroactively to cases that became final after a 2002 U.S. Supreme Court ruling in a case known as Ring v. Arizona. That was because the Hurst ruling was premised on the Ring decision.

The effect of the Florida Supreme Court’s move was to allow dozens of inmates sent to Death Row since 2002 to have their cases reconsidered.

But the court changed dramatically early this year, when longtime justices Barbara Pariente, R. Fred Lewis and Peggy Quince stepped down because of a mandatory retirement age and were replaced by DeSantis appointees Barbara Lagoa, Robert Luck and Carlos Muniz.

After the turnover, the court issued an order in April that sought arguments from attorneys about whether it should reverse course --- or, in legal-speak, “recede” --- from the earlier decisions on the retroactivity issue.

In the brief late Monday, Moody’s office said the Supreme Court should recede from the December 2016 rulings in what are known as the Mosley and Asay cases and rule that the death-penalty sentencing changes are “prospective only” --- in other words, applying only to new cases. Also, Moody’s office contended that the Supreme Court should not be prevented from revisiting the issue because of “stare decisis,” the concept of relying on court precedent.

“The decisions in Asay and Mosley were premised on ignoring long standing existing precedent without justification,” the attorney general’s brief said. “Consequently, neither should be protected by stare decisis.”

The Supreme Court’s April order requesting briefs on the retroactivity issue came in an appeal by Death Row inmate Duane Eugene Owen. His lawyers argue that retroactivity should apply to all death penalty cases, not only to those that were final after the Ring case was decided. That would mean also applying the new sentencing requirements to cases that became final before 2002.

But they also stressed that the court, at a minimum, should keep in place the current process of reconsidering cases that became final since 2002.

The Owen brief said that “declaring Hurst entirely nonretroactive would do serious injustice to the scores of capital defendants who have spent countless time and energy challenging their unconstitutional death sentences, as is their absolute right.”