The Illusory Quest to Execute Only “The Worst of the Worst”

Posted in: Criminal Procedure

On Thursday, May 21, the Florida Supreme Court decided that the state could proceed with its plan to execute Harry Franklin Phillips, one of 372 people on that state’s death row. Phillips, who was convicted of murdering a Miami parole officer in 1982, suffers from an intellectual disability and has an IQ of 70.

His case offers a striking example of the lengths to which Florida’s political and judicial conservatives will go to keep its machinery of death running. It comes on top of another decision, in January of this year, in which its state supreme court overturned a 2016 ruling and allowed its state legislature to authorize imposition of capital punishment without jury unanimity.

But, more importantly, the ruling in the Phillips case highlights America’s illusory, almost fifty-year quest to ensure that the death penalty be precisely targeted at “the worst of the worst.”

That quest has proceeded along two paths.

The first has involved the effort to devise procedures that would eliminate arbitrariness and discrimination in death sentencing. The second path has focused on excluding certain categories of persons from death eligibility.

With respect to the first path, the U.S. Supreme Court has said that, in determining who can be put to death, “it is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than emotion.”

The Court also believes that “because of the ‘severity and irrevocability’” of the death penalty, it is “qualitatively different from any other punishment” and that it is “desirable for the jury to have as much information as possible when it makes the sentencing decision.”

Thus, in Lockett v. Ohio, it held that the Eighth and Fourteenth Amendments of the United States Constitution required, in all but the rarest capital cases, that sentencers be allowed to consider a range of mitigating factors before imposing the death penalty. These factors included any aspect of a defendant’s character or record and any circumstances of the offense proffered as a reason for a sentence less than death.

Lockett made individualized consideration of the background and character of the accused “a constitutionally indispensable part of the process of inflicting the penalty of death.” The jurisprudence of capital punishment recognizes that the jury’s decision about who deserves to die is one that no set of legal rules can determine. The law can at best guide the jury to consider particular factors, but the decision itself is deeply personal and moral.

Almost half a century after Justice William Douglas warned in Furman v Georgia that “discretion is pregnant with discrimination,” juries still have wide latitude in capital sentencing.

Thus it should not be surprising that decisions about who deserves to die by juries, as well as by governors, prosecutors, and others involved in the death penalty process, still would reflect society’s conventions about what makes life worth saving as well as those of its prejudices that devalue the lives of particular persons or groups of persons.

The quest to ensure that the death penalty is reserved only for the worst of the worst is also reflected in a series of U.S. Supreme Court decisions identifying categories of offenders who could not be put to death. Starting in 2002, the court removed minors, those with intellectual disabilities, child rapists, and convicts who become mentally ill before execution from the reach of the capital sanction, each determined to be inappropriate subjects of execution.

Justice Anthony Kennedy, who led the Court in narrowing the categories of death-eligible offenders, argued that that “capital punishment must ‘be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’ ”

Kennedy also held out the hope that the death penalty could be reconciled with what he took to be central to the Eighth Amendment, that we respect the “human dignity” even of those we punish.

But he was also aware of the difficulty of realizing that ambition when the state kills. “When the law punishes by death,” Kennedy warned, “it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

Florida’s Supreme Court seems determined to ignore Kennedy’s concern about protecting the dignity of those subject to capital punishment and, at the same time, to show the wisdom of Kennedy’s warning.

Florida has long held the view that any capital defendant with an IQ of 70 or above should be death eligible. Six years ago, in Hall v Florida, the U.S. Supreme Court found that practice to be unconstitutional. It noted that no bright-line rule could capture the meaning and significance of intellectual disability.

As Justice Kennedy put it, “[i]ntellectual disability is a condition, not a number.” Florida’s rule, he said, “disregards established medical practice in two interrelated ways. It takes an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence. It also relies on a purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise.”

Kennedy went on to say that executing “an intellectually disabled person violates his or her inherent dignity as a human being” because the “diminished capacity of the intellectually disabled lessens moral culpability and hence the retributive value of the punishment.”

The precise issue in the Phillips case was whether the Hall decision should be applied retroactively since Phillips had been sentenced before the U.S. Supreme Court handed down its ruling.

Last month, the Florida court cast aside another of its recent precedents and refused to allow such an application. Treating Hall as merely an “evolutionary refinement” in the law, not a ruling of “fundamental significance,” it seemed determined to use any avenue to usher yet another person into its death chamber.

We can measure the significance of that determination if we recognize that severe functional deficits, of the kind from which Philips suffers, are, as Charles Ogletree notes, “the rule, not the exception, among the individuals who populate the nation’s death rows.”

For a long time, critics of the death penalty have pointed out the failure of America’s effort to end arbitrariness in death sentences. It is now time to acknowledge the failings of the effort to solve the death penalty’s dignity problem by trying to exclude clear categories of offenders from death eligibility.

Ogletree got it right when he said that “when you look closely, what you find is that the practice of the death penalty and the commitment to human dignity are not compatible.”

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