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Re: S.J.R. 124
The author of the staff analysis for the proposed amendment to Article I, Section 17, believes that it would not overrule the Brennan decision because Brennan was decided after Amendment Two was passed in 1998. This is wrong. In footnote four of the Brennan decision, the court explains that it is applying the pre-Amendment Two constitutional language in Brennan because (1) the state did not rely on Amendment Two in its original arguments; (2) the validity of Amendment Two had not yet been resolved; and (3) Amendment Two probably could not be applied retroactively to Brennan, whose crime was committed before 1998, without violating the ex post facto clause of the federal constitution. Brennan v. State, 754 So.2d 1, 5-6 n.4 (1999).
Also, contrary to the representation that the decision rested on both the federal and state constitutions, the court said specifically, “For the reasons that follow, we conclude that the imposition of the death sentence on Brennan, for a crime committed when he was sixteen years of age, constitutes cruel or unusual punishment in violation of article I, section 17 of the Florida Constitution.” Id. at 5-6. The court also relied expressly on its precedent in Allen v. State, 636 So.2d 494 (Fla.1994), in which, the court explained, it “relied on article I, section 17 of the Florida Constitution, and not on . . . the Eighth Amendment of the United States Constitution.” Brennan, 754 So. 2d at 6.
The court noted that it was “mindful” of the U.S. Supreme Court decision in Stanford v. Kentucky, 492 U.S. 361 (1989), upholding the death penalty for defendants who commit crimes at 16 or 17, but reasoned that Stanford might not apply to Florida’s statute, because Florida does not require a transfer hearing before a child is tried as an adult for first degree murder. Id. at 8. The court concludes that Florida’s statute is therefore “suspect under the federal constitution and the reasoning of Stanford as it applies to sixteen-year-old offenders.” Id. at 9. Thus, while the court suggests that the execution of 16 year old offenders under Florida’s statute might violate the federal constitution as well, the court’s actual holding rests only on the state constitution. Id. at 5-6, 8-9.
As such, Brennan would be overruled by the proposed amendment to Article I, Section 17, which prohibits the state constitution from being interpreted more broadly than the federal constitution. If it is not the legislature’s intent to overrule Brennan, then this amendment must be rewritten to make that clear.
FLORIDA JUSTICE INSTITUTE, INC.
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February 27, 2001
The Honorable Gus M. Bilirakis
Chairperson
House Committee on Crime Prevention, Corrections & Safety
324 Capitol
402 South Monroe Street
Tallahassee, Florida 32399-1300
Re: PCB-CPCS-01-02 (S.J.R. 124)
Dear Chairperson Bilirakis:
As the attorney for Florida’s religious leaders in Armstrong v. Harris, the Supreme Court decision that struck Amendment Two after the election because it misled the electorate, I write to alert your Committee that it was given inaccurate information at your meeting on the above captioned successor legislation last Thursday, February 22nd and that the Staff Analysis is incomplete. This misinformation should be immediately corrected and your Committee’s position reconsidered. Please allow me to explain.
Since the Constitutional “train wreck” concerning the electric chair had been rendered moot, Rep. Heyman correctly pointed out at last week’s hearing that the only change the above proposed Constitutional amendment would make to Florida’s death penalty jurisprudence would be to overrule the Florida Supreme Court’s decision in Brennan v. State, 754 So. 2d 1 (1999), and allow the execution of 16 year old offenders.
In response to legislators’ concerns about extending the death penalty to 16 year old offenders, the author of the staff analysis for the proposed amendment to Article I, Section 17, insisted it would not overrule the Brennan decision because (1) Brennan was decided after Amendment Two was passed in 1998 and (2) Brennan’s holding rested equally on Article I, Section 17 and the Eighth Amendment to the U.S. Constitution. This advice is contrary both to the Brennan decision and to the Attorney General’s interpretation of Brennan in litigation before the Florida Supreme Court.
First, in footnote four of Brennan, the Court specifically explained it was applying the pre?Amendment Two constitutional language in Brennan because (1) the state did not rely on Amendment Two in its original arguments; (2) the validity of Amendment Two had not yet been resolved; and (3) Amendment Two probably could not be applied retroactively to Brennan, whose crime was committed before 1998, without violating the ex post facto clause of the federal constitution. Brennan, 754 So. 2d at 5-6 n.4.
Second, contrary to the representation that the decision rested on both the federal and state constitutions, the Court stated specifically: “For the reasons that follow, we conclude that the imposition of the death sentence on Brennan, for a crime committed when he was sixteen years of age, constitutes cruel or unusual punishment in violation of article I, section 17 of the Florida Constitution.” Id. at 5-6. The Court also relied expressly on its precedent in Allen v. State, 636 So. 2d 494 (Fla.1994), in which, the Court explained, it “relied on article I, section 17 of the Florida Constitution, and not on . . . the Eighth Amendment of the United States Constitution.” Brennan, 754 So. 2d at 6.
It is true that the Court attempted to distinguish the U.S. Supreme Court’s decision Stanford v. Kentucky, 492 U.S. 361 (1989), which held that the Eighth Amendment does not prohibit the death penalty for those who commit crimes at 16 or 17, by suggesting that Stanford’s reasoning might not apply to Florida’s death penalty statute, because Florida does not require a special hearing before a child is tried as an adult for first degree murder. Brennan, 754 So. 2d at 8. The Court concluded that Florida’s statute is therefore “suspect under the federal constitution and the reasoning of Stanford as it applies to sixteen-year-old offenders.” Id. at 9. The Court also prefaced its entire discussion of Stanford, however, by explaining that it is “not binding on our state constitutional analysis.” Id. at 8.
According to the Attorney General in subsequent litigation regarding the Brennan decision, this reasoning runs afoul of the “conformity clause” in Amendment Two (the successor legislation contains identical language), which does make the U.S. Supreme Court’s Eighth Amendment decisions binding on interpretat
ions of Article I, Section 17 of the state constitution. The Attorney General argued vigorously that, under the conformity clause, “the only conclusion possible is that Brennan is wrongly decided,” and the execution of 16 year old offenders is perfectly acceptable. Jeffrey Farina v. State, Fla. S. Ct. Case No. 93,907, Answer Brief of Appellee (served October 1, 1999).
Given the Attorney General’s contention that the only possible conclusion is that Amendment Two overrules Brennan, we must conclude that the author of the Staff Analysis is either misguided or that, once again, sponsors of this proposed amendment intend to mislead both other legislators and Florida’s voters about the real purpose and effect of this amendment. If it is not the legislature’s intent to overrule Brennan and allow the execution of children, then this amendment must be rewritten to make that clear. And if it is the legislature’s intent to overrule Brennan, then it must be disclosed to the voters of this state in the ballot title and summary, that the proposed amendment will extend the death penalty to 16 year old offenders.
If it is the latter intent as opposed to the former, I would like to point out that allowing the execution of 16 year old children would put Florida outside the mainstream of death penalty jurisdictions:
- Even Texas, the nation’s most pro-death penalty state, does not allow the execution of 16 year old offenders;
- The majority of death penalty jurisdictions in the U.S. set 17 or 18 as the minimum age for the death penalty;
- There are only twenty 16 year old offenders on Death Row in the entire country;
- Only one person who was 16 at the time of his crime has been executed in the United States since 1976;
- According to a recent national poll, only 26.4 percent of Americans support executing people who were juveniles when they committed their crime;
- The only other countries that permit the execution of juvenile offenders are Iran, Nigeria, Saudi Arabia, and the Democratic Republic of Congo; and
- The execution of juvenile offenders is a violation of international law and is strongly opposed by European countries which provide valuable tourist dollars to Florida.
Your Committee’s reconsideration of its decision to allow the execution of 16 year old offenders in Florida would be appreciated.
Respectfully submitted,
Randall C. Berg, Jr.
Executive Director cc: The Honorable Aaron Bean, Vice-Chair
The Honorable Sally Heyman
The Honorable Bev Kilmer
The Honorable Dick Kravitz
The Honorable Mitch Needleman
The Honorable Joseph Spratt
The Honorable Dwight Stansel
The Honorable Frederica Wilson
Staff Director David De la Paz
The Honorable J. Alex Villalobos
The Honorable Victor D. Crist
The Honorable Charlie Bronson
The Honorable Locke Burt
The Honorable Kendrick B. Meek
The Honorable Ronald A. Silver
The Honorable Rod Smith
The Rev. Dr. James Armstrong, Past Pres., Florida and National Councils of Churches
The Rev. Dr. Borko M. Douglas, Conf. Minister, United Church of Christ
The Rev. Dr. Jimmie L. Gentle, Reg. Minister, The Christian Church
(Disciples of Christ), Florida Region
Ms. Kathy Barber Hersh, Rep., South East Yearly Meeting of Friends (Quakers)
Thomas A. Horkan, Jr., Esq., General Counsel, Florida Catholic Conference
The Rev. Fred Morris, Executive Director, Florida Council of Churches
The Rev. Dr. Barry Snowden, President, Florida Council of Churches
SJR124Bilirak2.ltr
Floridians for Alternatives to the Death Penalty
800-973-6548
https://www.fadp.org
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2603 Dr. Martin Luther King Jr. Hwy
Gainesville, FL 32609
(800) 973-6548
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