IAMI, Oct. 11 — A measure on the November ballot in Florida seeks, among other things, to change one word of one phrase of the state constitution as it applies to the death penalty.
Supporters say it will strengthen the state's death penalty law, making it more resistant to legal challenges and to certain types of appeals.
But opponents see danger in the switch. They say it will have a consequence that was never intended and is hidden in the obscure ballot language: It will effectively lower the minimum age at which killers can be put to death to 16 from 17.
The amendment would change the state constitution's prohibition against "cruel or unusual" punishment to the stricter federal prohibition against "cruel and unusual" punishment. Criminals appealing their death sentences would have to convince a court that their punishment met both those standards.
"Those who are on death row in Florida file an average of 12 appeals over a 14-year period," said State Senator Victor Crist, a Republican and co-sponsor of the measure, "and every single individual always files one of those appeals contesting the semantic difference between the Florida statue and the federal statute, and every time the court rules in favor of the federal statue. All we're doing here is using the same words in the state statute that the federal statute uses."
But critics say the proposal — theoretically, at least — would also allow 16-year-olds to be executed. This is because United States Supreme Court rulings upholding the death penalty for 16-year-olds would take precedence over a 1998 ruling by the Florida Supreme Court that declared capital punishment unconstitutional for people under 17.
"Passage of this amendment would restore the death penalty in Florida for 16-year-old offenders," said Stephen Harper, coordinator of the Juvenile Death Penalty Initiative, a coalition seeking to eliminate the death penalty for juveniles. "We see that as a major step back given how other states are dealing with this issue and given how the international community has all but eliminated the death penalty for offenders under 18."
These critics say voters would have no way of knowing the implications of the change for juvenile offenders from reading the amendment, which makes no mention of it.
Proponents of the measure insist they never intended to put youthful killers to death. Indeed, no one on either side of the debate expects Florida to suddenly start executing teenagers.
"You'd have to have a very unusual case" in order for a person who was 16 at the time he committed a crime to be put to death, said Locke Burt, a Republican state senator and another co-sponsor of the measure. "Given the fact that the Supreme Court of Florida has said we don't want to execute 16-year-olds, I don't think you'd get the votes to do it."
Of the 38 states that authorize the death penalty, 17 permit the execution of criminals who were 16 when they committed murder. Five, including Florida, prohibit the execution of murderers who were younger than 17 when they committed their crimes, and 16 states prohibit anyone who committed a crime under the age of 18 from being executed.
There are at least three people on death row in Florida who were 17 when they committed their crimes. The state has not executed a juvenile in more than four decades.
Florida voters approved a similar amendment in 1998, but the State Supreme Court struck it down, ruling that the ballot description was misleading. While people on both side of the debate say the language on the November ballot is not misleading, more than a dozen elections supervisors unsuccessfully sued the state in August to remove the issue from the ballot because of its complicated, lengthy wording.
"It's ridiculous to present something this long, this convoluted and this complex to voters and expect them to come to a clear understanding of what they'll be voting on," said Ion Sancho, the supervisor for elections in Leon County who was among the election officials seeking to remove the 714-word amendment from the ballot.
Proponents of the amendment say its wording was intended to correct language in the original proposal that the Florida Supreme Court ruled was misleading. "I know what the intent of the law is and I know my personal policy," Senator Crist said, "and that is not to execute minors."
