Opinion: Florida's seemingly limitless death penalty

Lawmakers and Gov. Ron DeSantis keep expanding who the state can execute, attorney Melanie Kalmanson writes.

The state's death chamber.

The state's death chamber. Florida Department of Corrections

When it comes to the death penalty, Florida appears to have no limit – not even those set by the Constitution.

The U.S. Supreme Court held in 2008 in Kennedy v. Louisiana that it violates the Eighth Amendment to sentence someone to death for a crime in which the defendant did not intentionally cause the victim’s death. Earlier this year, Gov. DeSantis signed legislation, which went into effect Oct. 1, that blatantly disregards Kennedy. 

The new law allows Florida courts to sentence someone to death for sex crimes committed against children under the age of twelve even where the crime does not cause the victim’s death. Before reaching the governor’s desk, the legislation had bipartisan support in the legislature.

Of course, the law comes just after Florida lowered the standard for imposing a sentence of death to the lowest in the country, requiring a jury vote of only 8-4.

In addition to signing legislation that defies constitutional boundaries, Gov. DeSantis has also directed the state of Florida to complete a string of executions that raise constitutional concerns.

The U.S. Supreme Court held in 2016 in Hurst v. Florida that Florida’s pre-2016 capital sentencing scheme violated capital defendants’ right to jury trial under the Sixth Amendment. 

Since being in office, Gov. DeSantis has directed the State to execute eight people, all of whom were sentenced under that statute and denied review of their sentences based on retroactivity – meaning their sentences were too old for them to reap the benefit of the Court’s ruling in Hurst. Five of the six people executed by Florida so far in 2023 were sentenced to death following a jury’s nonunanimous recommendation for death.

The executions themselves have also raised concern.

The U.S. Supreme Court has long held that the Eighth Amendment precludes executing the insane. The Court’s 1986 decision in Ford v. Wainwright, which was out of Florida, is considered the landmark case on this topic. 

In June, Florida executed Duane Owen. Ahead of his execution, Owen’s attorneys argued, based on expert opinions, that Owen experienced delusional beliefs such that he did not have a rational understanding of the reasons or effects of his execution, which is the standard under the Eighth Amendment for determining insanity for execution. Florida’s courts rejected Owen’s claims of insanity and allowed the execution to proceed.

The U.S. Supreme Court held in 2002 in Atkins v. Virginia that the Eighth Amendment bars executing a person who is intellectually disabled. On Tuesday, Florida executed Michael D. Zack III. Zack, through his attorneys, challenged his execution based on Atkins, arguing that the severe effects he suffered from fetal alcohol syndrome (FAS) rendered him intellectually disabled. 

While the State’s attorneys acknowledged that the state does not intend to violate Atkins, they argued that Zack’s claims were without merit and procedurally barred. Florida’s courts rejected Zack’s claims and allowed the execution to proceed.

Zack is not the only person executed who suffered the effects of FAS. 

Of the other five people executed in Florida so far this year, records show that at least two had FAS: Donald Dillbeck (executed Feb. 23, 2023) and James Barnes (executed Aug. 3, 2023). In addition, records suggest that Louis Gaskin (executed April 12, 2023) and Duane Owen (executed June 15, 2023) also suffered from FAS.

After a three-and-a-half-year hiatus from conducting executions due to his reelection campaign and COVID, DeSantis restarted executions in February this year, seemingly motivated by his bid for the White House. 

Florida’s 2023 string of executions show that Florida, as led by DeSantis, has little concern for whether the executions it completes withstand long-standing constitutional boundaries.

Melanie Kalmanson clerked for Justice Barbara J. Pariente of the Supreme Court of Florida in 2016-19 and serves on the Steering Committee for the ABA Death Penalty Representation Project. Views expressed are those of the author and not of the City & State Florida editorial staff.

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