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The synthetic painkiller fentanyl has been the driving force behind the nation’s opioid epidemic, killing tens of thousands of Americans last year in overdoses. Now two states want to use the drug’s powerful properties for a new purpose: to execute prisoners on death row.
As Nevada and Nebraska push for the country’s first fentanyl-assisted executions, doctors and death penalty opponents are fighting those plans. They have warned that such an untested use of fentanyl could lead to painful, botched executions, comparing the use of it and other new drugs proposed for lethal injection to human experimentation.
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The situation has led states such as Florida, Ohio and Oklahoma to turn to novel drug combinations for executions. Mississippi legalized nitrogen gas this s…

Appeals court rules in favor of Florida death penalty law

Florida's death chamber
Florida's death chamber
Florida's new death-penalty sentencing process should apply to prosecutions that were already underway when the new law went into effect this month, a state appeals court ruled Friday.

The 5th District Court of Appeal also decided that a U.S. Supreme Court decision, in a case known as Hurst v. Florida, did not strike down the state's entire death penalty as unconstitutional, but instead overturned the procedure for imposing death sentences.

But because the issues "involve questions of great public importance," a 3-judge panel asked the Florida Supreme Court to decide whether the Hurst decision declared that the state's death penalty is unconstitutional and if the new law applies to cases already in the pipeline before the new sentencing process went into effect March 7.

In a Jan. 12 ruling, the U.S. Supreme Court found that Florida's system of giving judges, and not juries, the power to impose death sentences was an unconstitutional violation of defendants' Sixth Amendment right to trial by jury.

The 8-1 U.S. Supreme Court decision dealt with the sentencing phase of death-penalty cases after defendants are found guilty, and it focused on what are known as aggravating circumstances that must be determined before defendants can be sentenced to death. A 2002 U.S. Supreme Court ruling, in a case known as Ring v. Arizona, requires that determinations of such aggravating circumstances must be made by juries, not judges.

The ruling left Florida temporarily without a death-penalty sentencing structure, prompting the Legislature to hurriedly pass a bill intended to fix the process. Gov. Rick Scott signed the bill March 7, and it went into effect immediately.

Under Florida's new law, juries will have to unanimously determine "the existence of at least 1 aggravating factor" before defendants can be eligible for death sentences. The law also requires at least 10 jurors to recommend the death penalty in order for the sentence to be imposed, and it did away with a feature of the old law that had allowed judges to override juries' recommendations of life in prison instead of death.

The Florida Supreme Court, which indefinitely put on hold 2 executions after the Hurst ruling, has been grappling with how or whether to apply the ruling to inmates already on death row. The questions posed Friday by the appellate judges are part of a process known as "certifying" questions to the Florida Supreme Court.

Friday's ruling came in the consolidated cases of Larry Darnell Perry, accused of killing his 3-month-old son in 2013, and William Theodore Woodward, charged with murdering 2 of his neighbors in 2012.

After the Hurst decision, Perry and Woodward asked judges in their cases to bar prosecutors from seeking the death penalty. The judges agreed with the defendants' lawyers, who argued that, because there was no constitutionally permitted death penalty process in Florida at the time, the state could not pursue death sentences in the cases.

But the appellate court on Friday sided with the state, saying that blocking the death penalty "impermissibly invades" the discretion of the state to seek the sentence.

The appeals court also rejected arguments that the new sentencing law should not apply in the cases of Perry and Woodward because of a 1972 law that provides alternative sentences if the death penalty is deemed unconstitutional. The 1972 law, which required that all death sentences be converted into life imprisonment, came in response to a ruling in a case known as Furman v. Georgia that resulted in a nationwide moratorium on the death penalty.

In the 10-page decision issued Friday, appeals-court Judge Richard B. Orfinger wrote that the Hurst ruling "struck the process of imposing a sentence of death, not the penalty itself."

Orfinger, joined by judges Kerry I. Evander and F. Rand Wallis, also disagreed with the defendants' contention that the application of the new law to pending cases would amount to an "ex post facto" violation of the Florida and U.S. Constitutions.

That constitutional problem would only arise if the new law retroactively altered the definition of crimes or increased the punishment for the crimes, Orfinger noted.

While Florida's new law changes the process used to determine whether the death penalty will be imposed, it does not modify the punishment attached to 1st-degree murder, Orfinger wrote. "The new sentencing statute added no new element, or functional equivalent of an element, to 1st-degree murder. Hence, the changes to our capital sentencing procedures do not resemble the type of after-the-fact legislative evil contemplated by the ex post facto doctrine," he wrote.

Source: Tampa Tribune, March 21, 2016

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