After an 18-month hiatus following the U.S. Supreme Court’s Hurst v. Florida decision, Florida is gearing up to begin executions again.
Yesterday, the Florida Supreme Court issued an opinion in Hitchcock v. Florida that could affect several other death penalty cases that have been on hold pending the resolution of this one. In a brief decision, the court rejected the plaintiff’s seven arguments that his death sentence was unconstitutional because it wasn’t issued by a unanimous jury. The court said his arguments had been settled in Asay v. Florida — that the constitutional requirement for a jury to impose a death sentence would apply only to those cases decided after Ring v. Arizona was decided in 2002. In Ring, the U.S. Supreme Court found that the Sixth Amendment requires that a jury, not a judge, must impose a death sentence.
Mark James Asay, whose case was referenced in Hitchcock, is scheduled to be put to death in Florida in two weeks.
Florida’s last execution was in January 2016, five days before the U.S. Supreme Court issued its Hurst decision, finding that the state’s death penalty scheme was unconstitutional because it gave judges, not juries, the final authority to sentence a defendant to death.
As a result of Hurst, as well as several decisions by the Florida Supreme Court in response to Hurst, the state’s death penalty statute was amended to require a jury to unanimously find aggravating circumstances that justified a death sentence; that the aggravating factors outweigh the mitigating factors; and that the jury’s recommendation of a death sentence be unanimous. Gov. Rick Scott signed the final bill into law in mid-March, and set Asay’s execution date early last month.
Asay was convicted in 1988 of killing two men in Jacksonville. The Miami Herald reports that if he is executed, “he will be the first white person put to death for murdering a black person in Florida,” quoting retired state Supreme Court Justice James E.C. Perry.
Asay’s execution is scheduled for 6 p.m., August 24.
Meanwhile, nine death row inmates filed a federal class action lawsuit last month claiming that it is cruel and unusual punishment for the Florida Department of Corrections to automatically place all condemned prisoners in solitary confinement regardless of their behavior.
The lawsuit maintains that permanent solitary confinement can last for years – until the inmate is executed, exonerated, or dies — which plaintiffs allege is “an unconscionably long period of time.” The nine plaintiffs have been kept in solitary for between four and 30 years.
In a press release, Venable LLP, which is representing the plaintiffs with local trial counsel, says the plaintiffs and the rest of the hundreds of inmates on death row, “often spend 24 hours a day in their cells, allowed to leave at most twice a week to exercise and three times a week to shower alone. Their cells are concrete, windowless, cut off from other prisoners’ cells, and cramped—approximately the same size as a parking space for a car.”
The plaintiffs allege that solitary confinement deprives them of “the basic human contact required to maintain their mental and physical health,” and violates the Eighth Amendment prohibition of cruel and unusual punishment, as well as the Fourteenth Amendment right to due process.