The Bottoson Effect

Two weeks ago, the Supreme Court struck down the Florida death penalty statute. As usual, the story that matters about this decision is the one that hasn’t been told.

You have probably never heard of Linroy Bottoson. He was executed by the State of Florida December 9, 2002. Bottoson’s execution was just another in a long series of forgotten killings since the Supreme Court reinstated the death penalty in 1976. Sixty-one men and two women preceded him to the gallows that year, and seven more would follow before the year ended. Nothing about his case has ever attracted the attention of the larger world. On the day he died, the lead story in the New York Times concerned the insistence by a top advisor to Saddam Hussein that Iraq had no weapons of mass destruction. The paper of record made no mention of Bottoson’s death.

But Linroy Bottoson nonetheless stands for something exceedingly important about the death penalty in the United States. For years, he insisted that his sentence was constitutionally flawed. For years, the courts turned him away—first the lower courts, and ultimately the Supreme Court. Eventually, however, the courts came to the conclusion that Bottoson had been right all along. By that time, however, he was dead. Bottoson thus exemplifies the fatal interaction between a man who is constitutionally before his time and a system that cannot undo its mistakes.

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The story begins in early 2002, when the Supreme Court agreed to hear a case involving the Arizona death penalty statute. In Arizona, some of the factual findings essential to a death sentence were made by the trial judge rather than the jury. The question in Ring v. Arizona was whether this statutory scheme violated the defendant’s Sixth Amendment right to trial by jury.

But wait. The Florida statute operates in much the same way. The jury in Florida is advisory, and some of the factual findings essential to a death sentence are made by the trial judge rather than the jury. When the Supreme Court agreed to hear Ring, lawyers for two death row inmates in Florida asked the Court to stay their pending executions, since the result in Ring might cast doubt on the Florida statute as well. Without explanation, the Court stayed these two executions pending the outcome in Ring. One was Linroy Bottoson.

Four months later, the Court in Ring held that the Arizona statute violated the Sixth Amendment. Yet shortly after that decision, the Court lifted the stays in the two Florida cases, including Bottoson’s. Once again, the Court acted without explanation, and we do not know its reasoning. But with the stay vacated, Florida was free to set a new execution date for both men, which it did.

Bottoson promptly filed papers in the Florida courts. Do not read too much into the High Court’s behavior, he said. The Supreme Court is inscrutable, and acts for reasons of its own. The only legally relevant fact, he argued, is that the Florida statute operates in the same way as the Arizona statute struck down in Ring—the trial judge rather than the jury makes factual findings that are essential to the death sentence. A straightforward application of Ring means the Florida statute is invalid.

The Florida Supreme Court was unmoved. As one of its justices reasoned, the Supreme Court “knew” that lifting its stay paved the way for Bottoson to be executed, and it was inconceivable the Supreme Court “would have permitted . . . Bottoson to be executed” if it believed Ring had any effect in Florida. Therefore, he reasoned, “it must follow logically” that Ring is irrelevant to the Florida statute. In other words, Bottoson couldn’t possibly be right—because if he were, the Supreme Court would have blood on its hands.

Still, we should not be overly hard on the Florida Supreme Court, for after the state court denied Bottoson’s claim, his lawyers returned to the U.S. Supreme Court. For Sixth Amendment purposes, they said, the Florida statute was identical to the Arizona statute struck down in Ring. Surely the Court would stop Bottoson’s execution and correct the obvious constitutional flaw.

The Supreme Court denied his request without comment and Bottoson was executed. And for the next 14 years, the Florida Supreme Court ritualistically cited its opinion in Bottoson as it rejected petitioner after petitioner who raised a Ring claim.

That is, until two weeks ago. In Hurst v. Florida, an 8-1 decision, the Supreme Court held that the Florida statute violated the Sixth Amendment right to a jury trial by directing the trial judge rather than the jury to make factual findings essential to a death sentence. Linroy Bottoson had been right all along.

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Between Ring and Hurst, Florida executed 41 men. Seven abandoned their appeals and volunteered for execution. Of the remaining 34, my research indicates that at least two-thirds raised the same constitutional claim as Hurst. (If anyone is interested, I have the cites). The total may be substantially higher, since the Florida Supreme Court rejected in unpublished orders challenges from a number of men, which has thus far prevented me from determining whether they too raised the claim.

But even if we use the most conservative accounting, 23 of the 34 men executed in Florida since Ring raised the same constitutional claim as Hurst. Yet they were killed because they were constitutionally before their time. I call it the Bottoson Effect.

What happened to Linroy Bottoson is not unusual, nor is it unique to Florida. Texas, the execution capital of the world, has long experience with the Bottoson Effect. In 1989, for instance, the Supreme Court in Penry v. Lynaugh struck down the Texas capital statute, holding that it did not allow the jury to give mitigating effect to certain types of concededly mitigating evidence, like intellectual disability.

But prior to the decision in Penry, the Texas Court of Criminal Appeals had rejected this same claim so many times that the state court eventually relieved trial counsel of the customary duty to preserve the claim at trial, holding that a contemporaneous objection would have been “an effort in futility.”

Florida, however, seems to have more than its share of experience with the Bottoson Effect. In 1987, for instance, the Supreme Court held in Hitchcock v. Dugger that the Florida capital statute prevented the jury from considering some types of mitigating evidence. The violation was obvious and the case was easy; Justice Scalia, writing for a unanimous Court, thought the error “could not be clearer.”

It was evidently not clear enough for the Florida Supreme Court, however, which had repeatedly rejected the same claim. Worse, lawyers for death row inmates had been asking the Supreme Court to strike down the statute for years. According to one careful study, Florida executed at least 13 men who had petitioned the Supreme Court to review the precise claim that eventually prevailed in Hitchcock.

The victories in Hurst, Hitchcock, Penry, and many other cases in the capital punishment canon, thus conceal a tragic history. For years, prisoners approached the courts with the key to a door that did not yet exist and were killed before the door was built. Just exactly how many Bottoson Effect executions have there been in the modern era? No one has ever counted.

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The organizing conceit of the American experiment with capital punishment is that the law, in its majestic omniscience, will spare us from fatal error. Linroy Bottoson would beg to differ.