Did the Death Penalty Die with Justice Scalia?

Call it a twist of irony that I’d like to think would have made the ornery old bastard smile, but within hours of my own scheduled execution, Supreme Court Justice Antonin Scalia (affectionately known to his friends as Nino) – perhaps the most vocal and unapologetic proponent of the death penalty– was found dead from natural causes at a ranch in West Texas. I am alive today because of one of Justice Scalia´s last decisions, rendered only a month before is death, in Hurst v. Florida.

It´s easy to think we live in a black and white world, one defined by political polarizations.  But in reality, we live in a world painted in shades of gray.  Most would characterize Justice Scalia as an unyielding conservative committed to his unique brand of strict constitutionalism siding with the state on most criminal issues, especially the death penalty.  And he made no apologies for his opinions advocating for the state´s power to execute prisoners by any means necessary.

But in all fairness, Justice Scalia was not simply unyielding.  His opinions were primarily guided by a commitment to uphold the fundamental principles set in stone when framers wrote the Constitution and Bill of Rights.  Under his philosophy, the courts were obligated to merely interpret the Constitution as it was written.  If any subsequent changes were to be made reflecting the evolution of societal values, such changes could only come through the democratic process.

Prisoners in America have longed for the day the marginally conservative Supreme Court would politically shift to the left.  Many times cases having a direct effect on us came down to 5 to 4 votes.  Conservative justices rallied around Scalia´s gift for prose, justifying prosecutors who knowingly convict innocent people, since the constitution gave prosecutors immunity from accountability.  At the same time the court insisted that the constitution provided no protection from being put to death. even if evidence established one’s innocence.

To us, it seemed Scalia´s true gift was in speaking with a forked tongue. He always found a way to justify his primary objective of protecting government and big business from accountability at the expense of those least able to defend against Big Brother.

But then I pause for a moment and remember George Porter, an elderly man I came to know on Florida´s Death Row over the past few decades.  George was convicted and condemned to death for a double homicide resulting from a domestic dispute that escalated out of hand.  When the dust settled, George´s recently estranged girlfriend and her male companion were dead.  George pled guilty and threw himself at the mercy of the Court.

Problem is, Florida courts are not known for showing capital defendants mercy and compassion. It surprised few when George was sentenced to death.  Notably, neither the prosecution nor the Court made allowances for the fact that George Porter was a decorated war hero who had long suffered from post-traumatic stress disorder (“PTSD”) and many years of alcoholism; his attempt to drown the ghosts of battlefields he’d fought on so long ago.

For almost two decades George´s capital case continued its trek through both Florida and Federal Courts, each court expressing open contempt towards his claims that his trial lawyer was constitutionally ineffective for failing to present evidence establishing George as a bona fide war hero.

Finally, George reached the end of the line, his last hope to be spared execution resting with the Supreme Court.  After almost a quarter of a century in continuous solitary confinement on Florida´s Death Row, George was now 75 years old and largely dependent on others around him to perform daily functions.  Throughout his odyssey, not one of the lower courts exhibited even a suggestion of compassion for this broken old man.

Then an unusual thing happened.  The Supreme Court granted review of his case and heard arguments on whether the lower courts were wrong in denying him relief.  By law, it wouldn’t be enough to find the lower courts were simply wrong — the Supreme Court would have to find their decisions “objectively unreasonable,” a threshold nearly impossible to meet.

In the early summer of 2009 the Supreme Court handed down its ´per curium´ decision in Porter v McCollum, unanimously ruling the state and federal courts were wrong and in their failure to consider George Porter´s battlefield experiences that left him a broken man, Omitting grounds that may have spared him from the death penalty was contrary to the basic fundamental principles of constitutional law.

It was the right decision, but what surprised legal experts and prisoners alike was that Justice Scalia sided with a death row prisoner, sparing his life. More importantly, the Court has established a precedent many more would subsequently rely on; even those condemned to death are entitled to constitutional protection, the Court had ruled.

A few years later Justice Scalia became the driving force in a capital case out of Arizona affriming the principles of constitutional law established a few years earlier in Aprendi v New Jersey, in which the Scalia-led court made clear that only a jury could decide facts allowing for the enhancement of a sentence based upon the use of a firearm during the commission of a crime.

In Justice Scalia´s view, right to have such facts decided by a jury was fundamentally written into the Constitution, and therefore could not be circumvented by procedural rules placing such decision making in the hands of a sentencing judge.

But many wondered whether Scalia would follow his own law when Ring v Arizona came before the Supreme Court in 2002.  As a staunch proponent of the death penalty, Justice Scalia´s scorching indictment of a judicial process allowing those condemned to death to pursue appeals, made it seem unlikely he would rule in favor of finding unconstitutional Arizona´s process of imposing death sentences by judge rather than jury.

After long months of speculation and anticipation, the decision was rendered.  To the surprise of many, Justice Scalia stood his ground and sided with the majority, that Arizona´s capital sentencing scheme unconstitutional. For the first time since the landmark decision holding the death penalty unconstitutionally “arbitrary and capricious” in Furman v Georgia (1972) the Supreme Court had found a state´s death penalty process to be unconstitutional – and did so upon principles of law campaigned by Justice Scalia.

Unfortunately the decision in Ring v Arizona would have very narrow application.  The following year Scalia´s Court decided in Summerlin v Schiro (2003) holding that the principle articulated in Ring v Arizona was not retroactive to cases already “final” in appeal.  Once again it appeared that Justice Scalia was speaking with a forked tongue.

Immediately, lawyers representing almost 400 prisoners on Florida´s Death Row argued that Ring v Arizona applied to Florida.  Just like Arizona, Florida also left to the trial judge the ultimate decision whether “statutory aggravations” justified a sentence of death.  The judge alone decided whether or not to impose a sentence of death – not the jury.

But in political sleight of hand, the Florida Supreme Court quickly decided that Ring v Arizona did not apply to Florida and proceeded to execute Amos King and Leroy Bothson just to prove their point.  The Supreme Court refused to intervene and Florida decided the Supreme Court´s silence gave them the green light to kill all they wanted.

From 1974 to 2002 Florida executed 53 prisoners, averaging nearly two executions per year.  That was before Ring v Arizona was decided, calling Florida´s process into question.

Immediately following Ring v Arizona, Florida accelerated the rate of executions. Between 2002 and today (Feb. 2016) Florida has put to death 39 more prisoners, averaging 3 per year.  During this period numerous Florida Supreme Court justices repeatedly called upon the Supreme Court to address whether Ring v Arizona applied to Florida, but in every case the Court declined review.

Then in 2010 a self-made billionaire under investigation for Medicare fraud decided to buy his way into office. Embraced by Tea Party Republicans, Rick Scott spent over a hundred million dollars to win the election, becoming Florida´s new governor.

Governor Scott wasted no time cranking up Florida´s killing machine with the signing into law of Florida´s infamous “Timely Justice Act” (Read: “The List”) expediting executions. Governor Scott earned a reputation for harboring no reservations to killing people.  Despite the continued controversy surrounding the constitutionality of Florida´s death penalty process, Governor Scott zealously signed death warrant after death warrant.

In 2015 Governor Scott made Florida history by putting more people to death than any Florida governor, ever.  And still, the lawyers were knocking on the Supreme Court´s door, trying to convince the Court to address whether Florida´s death penalty process was constitutional.

And then finally – the Supreme Court granted review on whether Florida´s death penalty process remains constitutional in light of Ring v Arizona. The case would become known as Hurst v Florida, and arguments were scheduled for October 2015.  But such a minor inconvenience as the legality of putting people to death wouldn´t slow Governor Scott down any more than executing an innocent man (read: “That Slippery Slope to State Sanctioned Murder”). Despite the Supreme Court granting review Governor Rick Scott continued his campaign to kill, carrying out at least 4 more executions while this Hurst v Florida case remained pending (Chadwick Banks, Johnny Kormandy, Jerry Correll and Oscar Bolin).

On November 30, 2015 Governor Scott signed my death warrant, only hours after the Supreme Court denied review of my actual innocence claim (Inre Cary Michael Lambrix, ussc case No 15-6163).  My execution was scheduled for Thursday, February 11, 2016, and I was moved to death watch (you can check out my weekly death watch journal at www.deathrowjournal.blogspot.gr) 

Each day the appointed time of my own death drew nearer.  While I was on Death Watch they carried out the execution of Oscar Rey Bolin as I sat silently only a few feet away. They planned to kill me next. (read: “Execution Day – Involuntary Witness to Murder”)

All the while we kept wondering whether Justice Scalia would put a stop to this madness.  It had now been over 13 years since Justice Scalia had steered the Court in Ring v Arizona and was going on a year since the Court granted review in Hurst v Florida.

Then that bolt of lightening unexpectedly struck on  on January 11, 2016, only days after they put Oscar Bolin to death – and the long awaited decision in Hurst v. Florida issued and by an 8 to 1 decision, the Supreme Court declared that its 2002 decision in Ring v Arizona did not apply to Florida and effectively recognized that the Florida death penalty process was unconstitutional.  The Court adopted Justice Scalia´s persistent argument: under the sixth amendment, only a jury could determine the facts necessary to justify the death penalty.  Florida´s system, which had allowed a judge to make this determination since 1977, was unconstitutional.

But not even the Supreme Court could slow Governor Scott down. As a self-made billionaire, he knew that laws don´t always apply to the rich.  Not only did he refuse to put the Florida death penalty on hold until new laws could be written, but he signed yet another death warrant on Mark Asay, scheduling his execution for March 2016.

I remained on death watch , preparing to accept my fate, despite the fact that the Supreme Court had declared Florida´s death penalty unconstitutional.  I had no doubt that Governor Scott and Florida Attorney General Pam Bondi would not hesitate to continue carrying out executions under the pretense that since the Courts hadn´t actually told them to stop, they could continue. It was an election year after all, and in the Deep South nothing wins votes like a good state-sanctioned lynching.

Finally, on February 2, 2016 the Florida Supreme Court took up my case as I had a little more than a week until my scheduled execution.  The Court held “oral arguments” and a few hours later entered an order postponing my February 11 execution date until it could decide whether the Hurst v Florida decision applies to older capital cases, or only to the more recent cases.

Time dragged by as I remained in the prolonged state of uncertainty, not knowing if I would live or die.  I spent that cold winter steps away from the execution chamber. Spring brought the absence of any decision, and with it the growing hope that maybe, just maybe, the Florida Supreme Court would do the right thing and recognize that Scalia´s final death penalty decision required all Florida death sentences to be vacated.  Even the typically pro-death penalty media and former Florida Supreme Court justices publicly advocated a decision that would do away with Florida´s death penalty.

Courts have a long history of speaking with a forked tongue – on one hand recognizing a process used to condemn a person as illegal, and on the other declaring that finding only applicable to future cases so that even if someone was illegally sentenced to death the state could kill them anyway. (please read: “Death by Default”)

2016 was an election year, a fact that could play heavily in any decision.  The death penalty is not so much about administering justice as it is about the politics of death. In a state fanatically favoring capital punishment, the political climate would presumably affect heavily a judicial the outcome.

Summer slowly passed and as fall brought cooler weather, I began to relax. It appeared the Florida Supreme Court would wait until after the November elections before deciding our fate. I laughed a little bit more and my loved ones cried a little bit less. We wanted to believe the delay was a sign the court would rule favorably.

On Friday, October 14, 2016. I was sitting on my bunk in my solitary cell amongst other condemned men, each in their own concrete crypt. One, then others yelled out to the wing: “Channel 4 – The Court ruled!” The wing grew silent, each of us eagerly absorbing every word the reporter said, holding our breath…

But it wasn’t the news we were waiting for, not entirely. The Florida Supreme Court released its decision in Hurst v State (the same capital case the United States Supreme Court ruled on), acknowledging that under the Supreme Court´s January decision the Florida death penalty process was illegal. The Court went a step further, finding that in addition to the Sixth Amendment’s requirement that a jury find each element relevant to imposing death (not the judge), that the Eighth Amendment (constitutional prohibition against infliction of cruel and unusual punishment) required this jury decision to be unanimous. Florida, Alabama and Delaware allowed a death sentence by majority rather than unanimous vote – making Florida´s death penalty statutes unconstitutional.

The Court recognized that any “error” in illegally condemning a person could be deemed “harmless” if it was found beyond reasonable doubt that the person would have been sentenced to death anyway.  That scared the hell out of us, since it appeared to create a way around granting relief.

Thanks to an issue that a proponent of capital punishment advocated, Florida had no legal death penalty. The presumption would be that every person sentenced to death since 1974 – including the 92 men and women actually executed – were all illegally sentenced to death.

The question left unanswered was whether the Florida Supreme Court would rule that this historic decision to be retroactive affecting those already on Florida´s Death Row, or they limit relief to only those whose cases were still pending on direct appeal?

The elections threw yet another unexpected twist into this already complex situation. After Justice Scalia passed away, President Obama nominated his choice for Scalia´s successor only to have the Republican controlled senate refuse to allow any confirmation hearings to take place.  Especially in election years, politics trumps justice. Now that Trump has won the election (Hitler also won the support of a majority of Germans when he campaigned upon his own agenda of hate and intolerance!), the question of who will take Justice Scalia´s seat on the Supreme Court remains to be seen.

One thing is certain…Senate Majority Leader Chuck Shumer is not going to roll over and allow an uncontested confirmation of anyone nominated by Trump.  Whoever Trump nominates will certainly face the most hostile confirmation process since Clarence Thomas.

Among Americans, the death penalty is not as popular as it once was, despite numerous states voting in favor of keeping it.  Given yet another conservative appointment to the Supreme Court, we hope that whoever replaces Justice Scalia will not possess his passion or persuasion.

And if the Florida Supreme Court does rule in coming weeks that the Hurst decision spawned — by Justice Scalia´s conflicted ideology is in fact retroactive, which would vacate the majority of Florida’s 386 death sentences, then we progress towards seeing the death penalty abolished.

I am still alive because of an issue Justice Scalia believed in even more than the death penalty. His rulings will play a big part in deciding whether the death penalty will survive – or whether it died with Justice Scalia.

Florida has the second highest number of death sentences prisoners (386). Only California has more (740).  If Florida holds that Hurst  is retroactive, it will vacate approximately 15% of all death sentences nationwide. The Courts must then confront the issue of whether capital punishment is tenable. Is it time to acknowledge the death penalty cannot be morally or judicially sustained?

Many will remember Justice Scalia as “a monster, an intellectual bully, a bare-knuckled conservative, a homophobic, a gun rights fanatic unable to overcome or even acknowledge his own biases” (“Scalia Played the Monster,”  by John Strand, USA Today, February 15, 2016) I choose to remember that I am alive today because, even while I held very little common ground with his vies of constitutional law or his unwavering support for the death penalty, in the end his ideology of strict constitutional constructionism laid the foundation for giving us the hope that within the foreseeable future, the death penalty will be laid to rest beside him.