On October 29, 2020, the Florida Supreme Court issued its opinion in Lawrence v. State, No. SC18-2061 (Fla. Oct. 29, 2020). It is another controversial decision from the state’s highest court, and there has been swift reaction against it.
- Read, for instance, the South Florida Sun Sentinel editorial board’s response in “A day of infamy at Florida’s Death Court,” published on October 30, 2020.
What is Comparative Proportionality?
Comparative proportionality involves an appellate court reviewing each sentence to “…ensure uniformity of sentencing in death penalty proceedings … [with death sentences] for only the most aggravated and least mitigated of first-degree murders.” Rogers v. State, 285 So. 3d 872, 891-2 (Fla. 2019), quoting Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998).
Comparative Proportionality has existed in Florida for almost fifty years, first being recognized in 1973, but no more. The Florida Supreme Court, in Lawrence, has determined that comparative proportionality review violates the conformity clause of article I, section 17 of the Florida Constitution.
Florida Supreme Court and the Death Penalty: Justice Labarga’s Dissent
In a rock-solid dissent, Justice Jorge Labarga writes the following regarding the changing stance of the state High Court to capital punishment and the review of death penalty sentences in the State of Florida.
His dissent is respectfully provided here, in its entirety, for your consideration. It reads as follows:
Today, the majority takes the most consequential step yet in dismantling the reasonable safeguards contained within Florida’s death penalty jurisprudence—a step that eliminates a fundamental component of this Court’s mandatory review in direct appeal cases.
The Majority’s Recent Decisions in Context
I cannot overstate how quickly and consequentially the majority’s decisions have impacted death penalty law in Florida. On January 23, 2020, this Court decided State v. Poole, 297 So. 3d 487 (Fla. 2020). As I noted in my dissent in Poole, despite the clearly defined historical basis for requiring unanimous jury verdicts in Florida, this Court receded from the requirement that juries must unanimously recommend that a defendant be sentenced to death. Poole, 297 So. 3d at 513 (Labarga, J., dissenting). After 2016, only the state of Alabama permitted a nonunanimous (10-2) jury recommendation. Poole paved the way for Florida to return to an absolute outlier status of being one of only two states that does not require unanimity.
On May 14, 2020, this Court decided Bush v. State, 295 So. 3d 179 (Fla. 2020). In that case, this Court uprooted the long applied heightened standard of review in cases that are wholly based on circumstantial evidence. Under the heightened standard, “[e]vidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, it is not sufficient to sustain [a] conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict.” Davis v. State, 90 So. 2d 629, 631-32 (Fla. 1956). This standard, applied for more than one hundred years, served as an important check on circumstantial evidence cases. As I noted in my dissent in Bush, while circumstantial evidence is a vital evidentiary tool in meeting the State’s burden of proof, “circumstantial evidence is inherently different from direct evidence in a manner that warrants heightened consideration on appellate review.” Bush, 295 So. 3d at 216 (Fla. 2020) (Labarga, J., concurring in part and dissenting in part). “The solemn duty imposed upon this Court in reviewing death cases more than justifies the stringent review that has historically been applied in cases based solely on circumstantial evidence.” Id. at 217.
On May 21, 2020, this Court decided Phillips v. State, 299 So. 3d 1013 (Fla. 2020). In Phillips, this Court receded from Walls v. State, 213 So. 3d 340 (Fla. 2016) (holding that Hall v. Florida, 572 U.S. 701 (2014), is to be retroactively applied). The United States Supreme Court’s decision in Hall held that Florida law, which barred individuals with an IQ score above 70 from demonstrating that they were intellectually disabled, “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” Id. at 704. The Supreme Court concluded: “This Court agrees with the medical experts that when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.” Id. at 723. In Walls, this Court held that Hall is to be retroactively applied. The majority’s recent decision in Phillips subsequently receded from Walls.
As expressed in my dissent in Phillips, in light of the majority’s decision to recede from Walls, “an individual with significant deficits in adaptive functioning, and who under a holistic consideration of the three criteria for intellectual disability could be found intellectually disabled, is completely barred from proving such because of the timing of his legal process. This arbitrary result undermines the prohibition of executing the intellectually disabled.” Phillips, 299 So. 3d at 1025 (Labarga, J., dissenting).
In each of these cases, I dissented, and I lamented the erosion of our death penalty jurisprudence. Now today, the majority jettisons a nearly fifty-year-old pillar of our mandatory review in direct appeal cases. As a result, no longer is this Court required to review death sentences for proportionality. I could not dissent more strongly to this decision, one that severely undermines the reliability of this Court’s decisions on direct appeal, and more broadly, Florida’s death penalty jurisprudence.
Mandatory Review in Death Cases
Until today, this Court has for decades carried out its solemn responsibility to evaluate each death sentence for both the sufficiency of the evidence on which the State relied to convict the defendant, and the proportionality of the death sentence when compared with other cases. We have consistently explained: “In death penalty cases, this Court conducts an independent review of the sufficiency of the evidence.” Caylor v. State, 78 So. 3d 482, 500 (Fla. 2011) (citing Phillips v. State, 39 So. 3d 296, 308 (Fla. 2010)). Whether the evidence is sufficient is judged by whether it is competent and substantial. See Blake v. State, 972 So. 2d 839, 850 (Fla. 2007). “In conducting this review, we view the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Rodgers v. State, 948 So. 2d 655, 674 (Fla. 2006) (citing Bradley v. State, 787 So. 2d 732, 738 (Fla. 2001)).
Moreover, “[i]n capital cases, this Court compares the circumstances presented in the appellant’s case with the circumstances of similar cases to determine whether death is a proportionate punishment.” Caylor, 78 So. 3d at 498 (citing Wade v. State, 41 So. 3d 857, 879 (Fla. 2010)). “In deciding whether death is a proportionate penalty, `we make a comprehensive analysis in order to determine whether the crime falls within the category of both the most aggravated and the least mitigated of murders, thereby assuring uniformity in the application of the sentence.'” Offord v. State, 959 So. 2d 187, 191 (Fla. 2007) (quoting Anderson v. State, 841 So. 2d 390, 407-08 (Fla. 2003)). “This entails `a qualitative review . . . of the underlying basis for each aggravator and mitigator rather than a quantitative analysis.'” Id. (quoting Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998)).
“[P]roportionality review in death cases rests at least in part on the recognition that death is a uniquely irrevocable penalty, requiring a more intensive level of judicial scrutiny or process than would lesser penalties.” Tillman v. State, 591 So. 2d 167, 169 (Fla. 1991). In fact, the sufficiency of the evidence and the proportionality analyses are so fundamental to this Court’s direct appeal review that they are conducted regardless of whether the defendant challenges sufficiency and proportionality on direct appeal. See Fla. R. App. P. 9.142(a)(5) (“On direct appeal in death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief.”).
This Court first recognized the doctrine of proportionality in 1973 in State v. Dixon, 283 So. 2d 1, 10 (Fla. 1973), superseded on other grounds by ch. 74-383, § 14, Laws of Fla., as stated in State v. Dene, 533 So. 2d 265, 267 (Fla. 1988), in which this Court explained:
It must be emphasized that the procedure to be followed by the trial judges and juries is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present. Review by this Court guarantees that the reasons present in one case will reach a similar result to that reached under similar circumstances in another case. No longer will one man die and another live on the basis of race, or a woman live and a man die on the basis of sex. If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great. Thus, the discretion charged in Furman v. Georgia . . . can be controlled and channeled until the sentencing process becomes a matter of reasoned judgment rather than an exercise in discretion at all.
In the decades since Dixon, a robust body of case law, consisting of literally hundreds of cases, has reaffirmed this rationale and continually strengthened the reliability of this Court’s proportionality review.
While the overwhelming majority of this Court’s death penalty cases are upheld on proportionality grounds, the fact that this Court has reversed death sentences due to a lack of proportionality underscores the need for proportionality review. See, e.g., McCloud v. State, 208 So. 3d 668 (Fla. 2016); Phillips v. State, 207 So. 3d 212 (Fla. 2016); Yacob v. State, 136 So. 3d 539 (Fla. 2014); Scott v. State, 66 So. 3d 923 (Fla. 2011); Crook v. State, 908 So. 2d 350 (Fla. 2005); Williams v. State, 707 So. 2d 683 (Fla. 1998); Jones v. State, 705 So. 2d 1364 (Fla. 1998); Voorhees v. State, 699 So. 2d 602 (Fla. 1997); Curtis v. State, 685 So. 2d 1234 (Fla. 1996); Sinclair v. State, 657 So. 2d 1138 (Fla. 1995). Yet, I emphasize that not only is the reversal of a death sentence on proportionality grounds a rare occurrence, when a death sentence is reversed as disproportionate, the result is not a “get out of jail free” card. It means that the death penalty is not a proportionate punishment in a particular case, and that instead, the statutory maximum punishment for first-degree murder, a sentence of life imprisonment, is what the law requires.
Today’s decision by the majority, striking proportionality review from this Court’s mandatory review in death penalty appeals, leaves only the sufficiency analysis. In removing this fundamental component of proportionality review, the majority’s decision threatens to render this Court’s initial review of death sentences an exercise in discretion.
Proportionality Review is Consistent with the Eighth Amendment
“The concept of proportionality is central to the Eighth Amendment.” Graham v. Florida, 560 U.S. 48, 59 (2011). Contrary to the conclusion reached by the majority, I view this Court’s lengthy history of conducting proportionality review as entirely consistent with the Eighth Amendment as interpreted by the United States Supreme Court, and thus, not a violation of the conformity clause contained in article I, section 17 of the Florida Constitution. Even though the United States Supreme Court concluded in Pulley v. Harris, 465 U.S. 37 (1984), that proportionality review was not constitutionally mandated, the Supreme Court acknowledged proportionality review as “an additional safeguard against arbitrarily imposed death sentences.” Id. at 50.
Thus, I disagree with the majority’s reasoning that because the Supreme Court does not expressly mandate proportionality review, Florida’s conformity clause forbids it. The Supreme Court recognized proportionality review as an “additional safeguard” against the very thing the Eighth Amendment prohibits— arbitrarily imposed death sentences. As observed by Justice Brennan in his dissent in Pulley:
Disproportionality among sentences given different defendants can only be eliminated after sentencing disparities are identified. And the most logical way to identify such sentencing disparities is for a court of statewide jurisdiction to conduct comparisons between death sentences imposed by different judges or juries within the State. This is what the Court labels comparative proportionality review. Although clearly no panacea, such review often serves to identify the most extreme examples of disproportionality among similarly situated defendants. At least to this extent, this form of appellate review serves to eliminate some of the irrationality that currently surrounds imposition of a death sentence. If only to further this limited purpose, therefore, I believe that the Constitution’s prohibition on the irrational imposition of the death penalty requires that this procedural safeguard be provided.
Pulley, 465 U.S. at 70-71 (Brennan, J., dissenting) (citation omitted).
The United States Supreme Court’s acknowledgment of proportionality as an additional safeguard—combined with the fact that the Supreme Court has not held proportionality review unconstitutional—affirms that in this case, the majority could well have concluded that proportionality does not run afoul of the conformity clause. Instead, yet again placing Florida outside of the majority of death penalty states, the majority has chosen to construe the United States Supreme Court’s reasoning as prohibiting Florida’s decades old proportionality review. I could not disagree more.
Proportionality Review in Other States
Further supporting my conclusion that the majority’s decision is a highly unfortunate departure from settled law is the fact that proportionality review is conducted in a majority of other death penalty states. Twenty-five states currently impose the death penalty. Sixty percent of those twenty-five states, not including Florida, conduct a proportionality review. In fourteen of those states, the review is statutorily imposed: Alabama, Georgia, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Carolina, Ohio, South Carolina, South Dakota, Tennessee, and Virginia.
Similar to Florida (prior to today’s decision), appellate review of death sentences in Utah involves a proportionality review despite the lack of a statutory requirement. State v. Honie, 57 P.3d 977, 988 (Utah 2002) (“Despite the fact that proportionality review is not required, either by the Utah or federal constitutions or by statute, we have chosen to assume the responsibility of reviewing death sentences for disproportionality.”); State v. Wood, 648 P.2d 71, 77 (Utah 1982) (“In the penalty phase, it is our duty to determine whether the sentence of death resulted from error, prejudice or arbitrariness, or was disproportionate.”); see also State v. Maestas, 299 P.3d 892, 987 (Utah 2012); State v. Andrews, 574 P.2d 709, 710-11 (Utah 1977); State v. Pierre, 572 P.2d 1338, 1345 (Utah 1977).
The Utah Supreme Court has emphasized that a proportionality review “means that this Court will not allow sentencing authorities to impose the death penalty in an invidious fashion against particular types of persons or groups of persons or in a fashion disproportionate to the culpability in a particular case . . . that over time, as this Court becomes aware of a general pattern in the imposition of the death penalty in this state, the Court may set aside death sentences that fall outside the general pattern and thus reflect an anomaly in the imposition of the death penalty.” State v. Holland, 777 P.2d 1019, 1025-26 (Utah 1989). The court stated that this review function “substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury.” State v. Pierre, 572 P.2d 1338, 1345 (Utah 1977) (quoting Gregg v. Georgia, 428 U.S. 153, 206 (1976)).
Even in states that statutorily mandate proportionality review, several state supreme courts have emphasized its importance. The Supreme Court of Virginia explained: “The purpose of our comparative [proportionality] review is to reach a reasoned judgment regarding what cases justify the imposition of the death penalty. We cannot insure complete symmetry among all death penalty cases, but our review does enable us to identify and invalidate a death sentence that is `excessive or disproportionate to the penalty imposed in similar cases.'” Orbe v. Commonwealth, 519 S.E.2d 808, 817 (Va. 1999) (quoting Va. Code Ann. § 17.1-313(C)(2)); see also Lawlor v. Commonwealth, 738 S.E.2d 847, 894-95 (Va. 2013).
Similarly, the Tennessee Supreme Court has recognized that “the purposes of comparative proportionality review are to eliminate the possibility that a person will be sentenced to death by the action of an aberrant jury and to guard against the capricious or random imposition of the death penalty,” and that “comparative review of capital cases insures rationality and consistency in the imposition of the death penalty.” State v. Bland, 958 S.W.2d 651, 665 (Tenn. 1997) (citing State v. Barber, 753 S.W.2d 659, 665-66 (Tenn. 1988)); see also State v. White, 565 S.E.2d 55, 68 (N.C. 2002) (recognizing that “[p]roportionality review also acts `[a]s a check against the capricious or random imposition of the death penalty.'” (quoting State v. Barfield, 259 S.E.2d 510, 544 (N.C. 1979))); State v. Ramsey, 864 S.W.2d 320, 328 (Mo. 1993) (stating that proportionality review “is designed by the legislature as an additional safeguard against arbitrary and capricious sentencing and to promote evenhanded, rational and consistent imposition of death sentences.”); State v. Kyles, 513 So. 2d 265, 276 (La. 1987) (stating that although not constitutionally required, the court “conducts a proportionality review as a further safeguard against arbitrariness”).
Without proportionality review, each death sentence stands on its own. Failing to consider a death sentence in the context of other death penalty cases impairs the reliability of this Court’s decision affirming that sentence.
In line with a vision consistent with evolving standards of decency, as envisioned by the United States Supreme Court in Trop v. Dulles, 356 U.S. 86, 101 (1958), our state’s jurisprudence has in many instances provided its citizenry with greater rights and protections than the minimum required by the United States Supreme Court, the federal government, and other states. In this instance, our state has consistently done just that, by requiring a proportionality review in every death penalty case, thus providing “an additional safeguard against arbitrarily imposed death sentences.” Pulley, 465 U.S. at 50. As noted earlier, sixty percent of the twenty-five states that currently impose the death penalty require a proportionality review.
Sadly, this long-standing jurisprudential approach has been significantly, if not completely, repudiated by this Court’s various opinions, beginning with its decision in Poole, followed by Bush and Phillips, and continuing with today’s decision to discontinue conducting a proportionality analysis in each death penalty appeal.
I deeply, regretfully, and most respectfully dissent.