'Judicial activism' raised in key death penalty case

Reversing the state’s retroactive consideration of certain death-penalty cases would amount to “the most egregious judicial activism in the history of Florida,” a lawyer for a Death Row inmate argued in a brief filed Monday with the Florida Supreme Court.

The filing, in the case of convicted murderer Duane Eugene Owen, comes as a revamped Supreme Court is exploring whether to reverse course on decisions that allowed dozens of convicted murderers to have their death sentences reconsidered.

Justices are looking at the issue after Gov. Ron DeSantis reshaped the Supreme Court early this year, turning what had been widely viewed as a liberal-leaning majority into a court dominated by conservative justices.

The issue stems, in large part, from rulings in 2016 by the U.S. Supreme Court and the Florida Supreme Court about the state’s death-penalty sentencing system.

In a case known as Hurst v. Florida, the U.S. Supreme Court ruled that the state’s death-penalty sentencing system was unconstitutional because it gave too much power to judges, instead of juries, in deciding whether defendants should be sent to Death Row.

That ruling, premised on a 2002 decision in a case known as Ring v. Arizona, led to sentencing changes, including requiring that juries be unanimous in finding necessary facts and in recommending imposition of the death penalty.

In a pair of decisions in December 2016, the Florida Supreme Court decided that the sentencing changes would apply retroactively to cases that became final after the 2002 Ring ruling. Re-sentencing should only be an option for cases in which jury recommendations for death were not unanimous, the court also decided.

But the revamped Florida court in April ordered Owen’s lawyer and the state to address the retroactivity issue. That prompted Attorney General Ashley Moody’s office to urge justices to make a relatively rare move of receding from the previous retroactivity rulings in what are known as the Mosley and Asay cases.

Moody’s office said the Supreme Court should rule that the death-penalty sentencing changes should apply only to new cases, not retroactively to older cases. Moody’s office also contended that “stare decisis,” the concept of relying on court precedent, should not prevent the Supreme Court from revisiting the issue.

“The decisions in Asay and Mosley were premised on ignoring long standing existing precedent without justification,” the attorney general’s brief said. “Consequently, neither should be protected by stare decisis.”

But the “presumption in favor of stare decisis is strong,” Owen’s lawyer, James L. Driscoll, argued, relying on previous court rulings.

“The citizens have the right to rely on the death penalty being imposed or maintained under a constitutional system in a fair and non-arbitrary manner. Each pre-Hurst condemned individual was denied that,” Driscoll wrote in the 21-page reply brief Monday. “This court should never reverse stare decisis when the result would be to take away the availability of a remedy for constitutional violations that cause unfairness and unreliability.”

Roughly a third of the inmates resentenced since the 2016 retroactivity decisions have received life sentences instead of the death penalty, according to Driscoll.

The state “offers no compelling reason” for the court “to take the extraordinary step of overturning its precedent,” he wrote.

“The state has invited this court to engage in the most egregious judicial activism in the history of Florida,” Driscoll wrote. “If this court accepts the state’s invitation, the ability of individuals to seek a remedy for state and federal constitutional violations will be hindered for generations. ... This court should avoid judicial activism, maintain stare decisis and apply Florida’s consistent and workable retroactivity framework.” 

Owen, 58, has spent more than three decades on Death Row after being convicted of the 1984 rape and murder of Georgianna Worden in Palm Beach County.

Driscoll also argued that retroactivity should apply to all of the state’s Death Row inmates, not just those whose sentences were final by 2002. Cases with resentencing since the Hurst decisions “show that what previously produced a death sentence would not necessarily do so now,” he argued.