Death Penalty Law springs out of two wells in two forums: the judiciary and the legislature, at both the state and federal levels.
Consider the continuing interplay on the proper implementation of the Florida Death Penalty between SCOTUS and the Florida Supreme Court in Hurst v. State and Poole v. State, as one example. See, “Florida Supreme Court “Recedes” from Major Death Penalty Decision Creating Uncertainty About Status of Dozens of Cases,” published by the American Bar Association on March 11, 2020.
The power of appellate court decisions to control capital punishment in this country cannot be underestimated.
However, there is also tremendous power in the legislative branch, where new statutes can be passed which can curtail, alter, or end the death penalty as a means of punishment for capital crimes. An important attempt to create new Florida law regarding capital cases is currently in play up in Tallahassee.
Florida SB 1156 Seeks to End Capital Punishment for Mentally Ill in Florida
In February 2021, two Florida state senators introduced a bill into the Florida Senate that sought to prohibit capital punishment for those convicted in the Sunshine State of a capital offense who were shown to suffer from severe mental illness. It was filed as Florida Senate Bill 1156.
The lawmakers who drafted SB1156 looked to analogous legislation proposed (and passed into law) in the State of Ohio. They mirrored their bill on that language. If passed, this new Florida law would prohibit state prosecutors from seeking the death penalty when the accused is shown to have had severe mental illness at the time of the capital offense.
Unfortunately, there was no correlated support in the Florida House for SB1156. Accordingly, the bill is not expected to succeed in this legislative session, which ends on April 30th, but there are hopes that it will fare better when the Florida Statehouse reconvenes in November.
For more, read “Florida Still Executes the Mentally Ill. This Bill Would Stop That,” written by Kathryn Varn and published by the Tampa Bay Times on April 19, 2021.
- Mental Illness and the Death Penalty: When Insanity Becomes an Issue;
- New ABA Report: Severe Mental Illness and the Death Penalty;
- Mental Illness and the Death Penalty;
- Mental Illness and the Death Penalty: List of Studies on How The Mentally Ill Should Not Face Capital Punishment.
SB 1156: Synopsis and Full Text of Proposed Law
Serious Mental Illness as Bar to Execution; Prohibiting the imposing of a sentence of death upon a defendant convicted of a capital felony if the defendant had a serious mental illness at the time of committing the offense; requiring a defendant to provide a certain notice if he or she intends to raise serious mental illness as a bar to a death sentence; requiring the defendant to file a written motion if he or she intends to raise serious mental illness as a bar to a death sentence; requiring certain court orders if the court finds by clear and convincing evidence that the defendant had a serious mental illness at the time of the commission of the crime, etc.
Authored by Senator Jeff Brandes, the full text of this proposed legislation provides as follows:
A bill to be entitled 2 An act relating to serious mental illness as bar to 3 execution; creating s. 921.135, F.S.; defining the 4 term “serious mental illness”; prohibiting the 5 imposing of a sentence of death upon a defendant 6 convicted of a capital felony if the defendant had a 7 serious mental illness at the time of committing the 8 offense; requiring a defendant to provide a certain 9 notice if he or she intends to raise serious mental 10 illness as a bar to a death sentence; requiring the 11 defendant to file a written motion if he or she 12 intends to raise serious mental illness as a bar to a 13 death sentence; providing motion requirements; 14 providing for the testing, evaluation, or examination 15 of the defendant by experts; providing time 16 limitations for the filing of the motion; requiring 17 the circuit court to conduct an evidentiary hearing on 18 the motion; providing court requirements; providing 19 for waiver of the claim; requiring certain court 20 orders if the court finds by clear and convincing 21 evidence that the defendant had a serious mental 22 illness at the time of the commission of the crime; 23 authorizing the state to appeal such an order; 24 providing requirements; providing that the time of 25 diagnosis does not preclude the defendant from 26 presenting evidence of a serious mental illness; 27 prohibiting certain statements of the defendant from 28 being used against him or her; providing construction; 29 providing for postconviction proceedings; providing 30 requirements; providing for stays of certain 31 proceedings; providing an effective date. 32 33 WHEREAS, leading state and national mental health 34 organizations, including the American Psychological Association, 35 the American Psychiatric Association, and the National Alliance 36 on Mental Illness, have called for a prohibition on imposition 37 of the death penalty for persons with a serious mental illness 38 at the time of the commission of the crime, and 39 WHEREAS, the American Bar Association recently endorsed the 40 call for the end of the death penalty for persons with a serious 41 mental illness, NOW, THEREFORE, 42 43 Be It Enacted by the Legislature of the State of Florida: 44 45 Section 1. Section 921.135, Florida Statutes, is created to 46 read: 47 921.135 Imposition of death sentence upon defendant with 48 serious mental illness prohibited.— 49 (1) DEFINITION.—As used in this section, the term “serious 50 mental illness” means any mental diagnosis, disability, or 51 defect that significantly impairs a person’s capacity to do any 52 of the following: appreciate the nature, consequences, or 53 wrongfulness of his or her conduct in the criminal offense; 54 exercise rational judgment in relation to the criminal offense; 55 or conform his or her conduct to the requirements of the law in 56 connection with the criminal offense. A disorder manifested 57 primarily by repeated criminal conduct or attributable solely to 58 the acute effects of alcohol or other drugs does not, by itself, 59 constitute a serious mental illness for purposes of this 60 section. The condition or conditions defined in this section are 61 a bar to the imposition of the death penalty notwithstanding the 62 standard established in s. 775.027 for insanity and the criteria 63 specified in s. 916.12 for establishing competence to proceed. 64 (2) DEATH PENALTY PROHIBITED FOR DEFENDANT WITH SERIOUS 65 MENTAL ILLNESS AT TIME OF COMMISSION OF CRIMINAL OFFENSE.—A 66 sentence of death may not be imposed upon a defendant convicted 67 of a capital felony if it is determined in accordance with this 68 section that the defendant had a serious mental illness at the 69 time the criminal offense was committed. 70 (3) NOTICE REQUIRED.—A defendant charged with a capital 71 felony who intends to raise serious mental illness as a bar to a 72 death sentence must give notice of such intention in accordance 73 with the rules of court governing notices of intent to offer 74 expert testimony regarding mental health mitigation during the 75 penalty phase of a capital trial. 76 (4) MOTION FOR DETERMINATION OF SERIOUS MENTAL ILLNESS AS A 77 BAR TO EXECUTION; CONTENTS; PROCEDURES.— 78 (a) A defendant who intends to raise serious mental illness 79 as a bar to execution shall file a written motion to establish 80 serious mental illness as a bar to execution with the court. 81 (b) The motion must state that the defendant is seriously 82 mentally ill and, if the defendant has been tested, evaluated, 83 or examined by one or more experts, must include the names and 84 addresses of the experts. Copies of reports containing the 85 opinions of any experts named in the motion must be attached to 86 the motion. The court shall appoint an expert chosen by the 87 state attorney if the state attorney so requests and that expert 88 shall promptly test, evaluate, or examine the defendant and 89 submit a written report of any findings to the parties and the 90 court. 91 (c) If the defendant has not been tested, evaluated, or 92 examined by one or more experts, the motion must state that fact 93 and the court must appoint two experts who shall promptly test, 94 evaluate, or examine the defendant and submit a written report 95 of any findings to the parties and the court. 96 (d) Attorneys for the state and the defendant may be 97 present at the examinations conducted by court-appointed 98 experts. 99 (e) If the defendant refuses to be examined or to fully 100 cooperate with the court-appointed experts or the state’s 101 expert, the court may: 102 1. Order the defense to allow the court-appointed experts 103 to review all mental health reports, tests, and evaluations by 104 the defendant’s expert; 105 2. Prohibit the defense experts from testifying concerning 106 any tests, evaluations, or examinations of the defendant 107 regarding the defendant’s serious mental illness; or 108 3. Order such relief as the court determines to be 109 appropriate. 110 (5) TIME FOR FILING MOTION FOR DETERMINATION OF SERIOUS 111 MENTAL ILLNESS AS A BAR TO EXECUTION.—The motion for a 112 determination of serious mental illness as a bar to execution 113 must be filed no later than 90 days before trial or at such time 114 as is ordered by the court. 115 (6) HEARING ON MOTION TO DETERMINE SERIOUS MENTAL ILLNESS. 116 The circuit court shall conduct an evidentiary hearing on the 117 motion for a determination of serious mental illness. At the 118 hearing, the court shall consider the findings of the experts 119 and all other evidence on the issue of whether the defendant is 120 seriously mentally ill. If the court finds that the defendant is 121 seriously mentally ill, it shall enter a written order 122 prohibiting the imposition of the death penalty and setting 123 forth the court’s specific findings in support of the 124 determination. The court shall stay the proceedings for 30 days 125 from the date of rendition of the order prohibiting the death 126 penalty or, if a motion for rehearing is filed, for 30 days 127 following the rendition of the order denying rehearing, to allow 128 the state the opportunity to appeal the order. If the court 129 determines that the defendant has not established that he or she 130 is seriously mentally ill, the court must enter a written order 131 setting forth the court’s specific findings in support of that 132 determination. 133 (7) WAIVER.—A claim authorized under this section is waived 134 if it is not timely filed as specified in subsection (5), unless 135 good cause is shown for the failure to comply with that 136 subsection. 137 (8) FINDING OF SERIOUS MENTAL ILLNESS; ORDER TO PROCEED.—If 138 the court finds by clear and convincing evidence that the 139 defendant had a serious mental illness at the time he or she 140 committed the crime, the court must order the case to proceed 141 without the death penalty as an issue and must enter a written 142 order that sets forth with specificity the findings of support 143 for the determination. 144 (9) APPEAL.—The state may appeal a court order finding that 145 the defendant is seriously mentally ill, which stays further 146 proceedings in the trial court until a decision on appeal is 147 rendered. Appeals must proceed according to Rule 9.140(c), 148 Florida Rules of Appellate Procedure. 149 (10) TIME OF DIAGNOSIS.—A diagnosis of the condition or 150 conditions after the date of commission of the crime with which 151 the person is charged does not preclude him or her from 152 presenting evidence that he or she had a serious mental illness 153 at the time he or she is alleged to have committed the offense. 154 (11) STATEMENTS OF DEFENDANT.—Any statement that a person 155 makes in an evaluation or pretrial hearing ordered pursuant to 156 this section may not be used against the defendant on the issue 157 of guilt in any criminal action or proceeding. 158 (12) MITIGATION EXCLUSION.—This section may not be 159 construed to preclude the defendant from presenting mitigating 160 evidence of serious mental illness at the sentencing phase of 161 the trial. 162 (13) EFFECT ON POSTCONVICTION PROCEEDINGS.—If a person to 163 whom this section applies has completed state postconviction 164 proceedings, the person may request permission to file a 165 successive petition for postconviction relief in accordance with 166 the Florida Rules of Criminal Procedure alleging that the 167 petitioner is an individual who had a serious mental illness at 168 the time he or she committed the offense. A request under this 169 subsection must be filed not later than July 1, 2022. If the 170 successive petition is authorized, the postconviction court must 171 proceed under the Florida rules of postconviction relief. If the 172 postconviction court determines that the petitioner is an 173 individual with a serious mental illness, it must vacate the 174 petitioner’s death sentence and impose a sentence of life 175 imprisonment without parole. This subsection does not preclude 176 the postconviction court from granting the person any additional 177 relief to which the person may be entitled based on the merits 178 of the person’s additional postconviction claims. 179 (14) MOTION TO ESTABLISH SERIOUS MENTAL ILLNESS AS A BAR TO 180 EXECUTION; STAY OF EXECUTION.—The filing of a motion to 181 establish serious mental illness as a bar to execution does not 182 stay further proceedings in the absence of a separate order 183 staying execution. 184 Section 2. This act shall take effect July 1, 2021.