A new law intended to speed up executions did little to change the status quo, an attorney representing the state told the Florida Supreme Court on Tuesday.
But a lawyer representing Death Row inmates argued that the “Timely Justice Act” is premised on a faulty list that violates the constitutionally protected separation of powers as well as inmates’ rights to due process.
More than 150 lawyers and Death Row inmates are challenging the law, signed by Gov. Rick Scott in June.
The law requires the Supreme Court clerk to give the governor a certified list of Death Row inmates whose initial state and federal appeals have been exhausted. The law orders the governor to sign death warrants for the condemned on the list within 30 days and to direct the warden to schedule their executions within 180 days — but only once the executive clemency process has been completed. Scott and his lawyers maintain that the clemency process ends when the governor signs a warrant.
In October, then-Supreme Court Clerk Tom Hall certified to Scott an initial list of 132 inmates who are at least partially “warrant ready” under the requirements of the law.
Scott has signed four death warrants since the law went into effect. Prior to that, Scott ordered nine executions since taking office in 2011.
Marty McClain, who represented the lawyers and inmates during oral arguments before the court on Tuesday morning, said the “warrant ready” list was flawed and included some Death Row convicts whose litigation was still pending.
But Assistant Attorney General Carol Dittmar told the justices that “the list is just to provide for information purposes” and did not change the process by which warrants are signed by the governor. Lawmakers who sponsored the legislation said it was intended to shorten the time between conviction and execution, which now is longer than two decades.
“It seems that the argument being made is that the Timely Justice Act was all for show and didn’t actually change anything,” McClain argued. “Certainly that was not what was expressed by the Legislature at the time. They meant to make changes.”
Some of the justices took issue with McClain’s argument that the Legislature had encroached on their power by forcing their administrator to generate the list.
Justice R. Fred Lewis said he found “difficult to understand why it’s unconstitutional for this court to give information” because that is “very natural and normal” within court operations.
Justice Barbara Pariente suggested that, although “we may not all agree that this is the best policy,” the court could add more information to the list and give lawyers representing Death Row inmates the chance to show why their clients should not be included on it before sending it to the governor.
And she pointed out that there is nothing in the new law that prohibits the court from issuing a stay once a warrant has been signed, pointing to the case of Ray Swafford, whose execution was halted by the court hours before he was scheduled to be put to death in 1990. Swafford, who was deemed “warrant ready” by Hall in October, has spent 28 years on Death Row for the abduction, rape and murder of a gas station attendant in Volusia County.
In November, the Florida high court vacated Swafford’s sentence and ordered a new trial based on new DNA evidence. But McClain said the Swafford case was a perfect example why the law is problematic.
Swafford had at least five appeals before the court ordered a new trial in the fall, McClain pointed out.
“Twenty-one years after the conviction, the information develops. He could have been executed in 1990,” McClain said.
–Dara Kam, News Service of Florida