Counsel Seeks to Challenge Rare Execution of 72-Year-Old Florida Prisoner on Constitutional Grounds in Florida Supreme Court

With just weeks remain­ing before his sched­uled exe­cu­tion, attor­neys for 72-year-old Samuel Lee Smithers are appeal­ing the dis­missal of their motion filed September 19, 2025, argu­ing that exe­cut­ing an elder­ly per­son vio­lates both Florida and the U.S. Constitutions’ pro­hi­bi­tion against cru­el and unusu­al pun­ish­ment and fails to meet any valid peno­log­i­cal jus­ti­fi­ca­tion. On September 22, 2025, the Hillsborough County Circuit Court denied Mr. Smithers’ request for an evi­den­tiary hear­ing to con­sid­er his claim. Mr. Smithers is sched­uled to be exe­cut­ed on October 14, 2025, mak­ing him the 14th per­son set for exe­cu­tion in Florida this year under Governor Ron DeSantis, who has over­seen more exe­cu­tions in a sin­gle year than any pre­vi­ous Florida governor.

Mr. Smithers was sen­tenced to death in 1999, at age 45, for the mur­ders of two women in Hillsborough County, Florida. Now 72-years-old, Mr. Smithers’ coun­sel alleges that exe­cut­ing some­one of his advanced age amounts to cru­el and unusu­al pun­ish­ment and no longer serves the ini­tial pur­pose of his death sen­tence. The motion cen­ters on the long­stand­ing prin­ci­ple that con­sti­tu­tion­al pro­hi­bi­tions against cru­el and unusu­al pun­ish­ment must be inter­pret­ed in light of con­tem­po­rary soci­etal stan­dards and values.

Central to the motion’s argu­ment is the sta­tis­ti­cal rar­i­ty of exe­cut­ing elder­ly indi­vid­u­als. Since the U.S. Supreme Court autho­rized the resump­tion of the death penal­ty in 1976, just 16 peo­ple over the age of 70 have been exe­cut­ed — account­ing for less than 0.01% of all exe­cu­tions in the U.S. since 1976. Only 41 of the 1640 indi­vid­u­als exe­cut­ed dur­ing this time­frame were age 65 or old­er. ​“The objec­tive evi­dence would sug­gest and sup­port that rar­i­ty of the exe­cu­tion of the elder­ly reflects the evolved stan­dards and sup­ports the find­ing of the unusu­al nature of exe­cut­ing the elder­ly,” argues defense coun­sel. In June 2025, Mississippi exe­cut­ed 79-year-old Richard Jordan, a Vietnam vet­er­an who was sen­tenced to death four sep­a­rate times, despite the state’s con­tention that his crime did not mer­it the death penalty.

The motion also draws on spe­cial pro­tec­tions for the elder­ly found in Florida law. The state leg­is­la­ture has rec­og­nized this population’s vul­ner­a­bil­i­ty, enact­ing numer­ous laws that enhance crim­i­nal penal­ties when vic­tims are 65 or old­er. Florida also allows peo­ple 70 and old­er to be per­ma­nent­ly excused from jury duty, acknowl­edg­ing age-relat­ed lim­i­ta­tions. ​“Florida’s stance on pro­tect­ing the elder­ly pro­vides evi­dence of a clear and expressed con­sen­sus of pro­tect­ing the elder­ly, espe­cial­ly those 65 years of age and old­er,” the motion states, argu­ing this demon­strates ​“evolved stan­dards of pro­tect­ing the vulnerable.”

When a person’s exe­cu­tion no longer has a ret­ribu­tive val­ue, the Supreme Court has said the exe­cu­tion amounts to noth­ing more than exact­ing mind­less vengeance, offend­ing the dig­ni­ty of society.

— September 19, 2025, motion filed by Attorneys for Samuel Smithers.

Defense coun­sel also argues that exe­cut­ing Mr. Smithers would serve nei­ther of the two rec­og­nized peno­log­i­cal jus­ti­fi­ca­tions for the death penal­ty: deter­rence and ret­ri­bu­tion. Citing U.S. Supreme Court prece­dent, coun­sel argues that when the death penal­ty fails to serve these goals, it becomes ​“the pur­pose­less and need­less impo­si­tion of pain and suf­fer­ing.” The motion draws par­al­lels to estab­lished con­sti­tu­tion­al pro­tec­tions against exe­cut­ing the insane, intel­lec­tu­al­ly dis­abled, and juve­niles — all of which are part­ly based on the prin­ci­ple that cer­tain pop­u­la­tions can­not be exe­cut­ed when doing so serves no legit­i­mate penological purpose.

In response, the state urged that Mr. Smithers’ motion be denied on pro­ce­dur­al grounds, call­ing it untime­ly and cit­ing oth­er pro­ce­dur­al bar­ri­ers. Attorneys for the state note ​“the claim became ripe when Smithers was six­ty-five years old,” but argue he ​“delayed…for six addi­tion­al years.” The State also argues Mr. Smithers’ claim is mer­it­less because the U.S. Supreme Court has not issued a rul­ing in favor of ​“age-based cat­e­go­r­i­al exemp­tion” to executions.

Hillsborough Circuit Judge Michelle Sisco agreed with the state, deny­ing Mr. Smithers’ request for an evi­den­tiary hear­ing. Judge Sisco wrote, “[t]he fact that [Mr. Smithers] is of advanced age does not dimin­ish the ret­ribu­tive val­ue of the death penal­ty in his case, or under­mine its deter­rent effect, in the same man­ner that a person’s sta­tus as a juve­nile or insane would.”

Counsel for Mr. Smithers have appealed this deci­sion to the Florida Supreme Court.

Source: Death Penalty Information Center, Hayley Bedard, September 29, 2025

"One is absolutely sickened, not by the crimes that the wicked have committed,

but by the punishments that the good have inflicted."

— Oscar Wilde