Petition for Writ of Certiorari — Jonathan Huey Lawrence, Petitioner v. Florida

Supreme Court briefMay 27, 2021

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No.

In the

Supreme Court of the United States

JONATHAN HUEY LAWRENCE,

Petitioner,

STATE OF FLORIDA,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Florida

_____________

PETITION FOR A WRIT OF CERTIORARI

JESSICA J. YEARY

Public Defender

BARBARA J. BUSHARIS*

Assistant Public Defender

*Counsel of Record for Petitioner

SECOND JUDICIAL CIRCUIT OF FLORIDA

OFFICE OF PUBLIC DEFENDER

301 South Monroe Street, Ste. 401

Tallahassee, Florida 32301

(850) 606-1000

barbara.busharis@flpd2.com

May 28, 2021

CAPITAL CASE

QUESTIONS PRESENTED

In the decision below, the Florida Supreme Court held that maintaining

conformity with this Court’s Eighth Amendment jurisprudence required eliminating

Florida’s practice of conducting proportionality review of death sentences. Lawrence

v. State, 308 So. 3d 544, 548 (Fla. 2020). The questions presented are:

Whether eliminating proportionality review from Florida’s capital

sentencing scheme contravenes this Court’s Eighth Amendment jurisprudence,

including Proffitt v. Florida, 428 U.S. 242, 251 (1976) (upholding Florida’s thencurrent capital sentencing statute) and Pulley v. Harris, 465 U.S. 37, 50-51 (1984)

(holding a state’s capital sentencing scheme is not required to include comparative

proportionality review to satisfy the Eighth Amendment, as long as the scheme

adequately narrows the class of cases in which death sentence may be imposed).

II.

Whether eliminating a comparative review of the basis for imposing

death sentences leaves individual defendants in Florida susceptible to being treated

differently from those similarly situated without a rational justification for or

appellate review of the distinction, in violation of the right to equal protection under

the law guaranteed by the Fourteenth Amendment to the Federal Constitution.

III.

Whether eliminating proportionality review from Florida’s capital

sentencing scheme violates due process and the ex post facto prohibition of Article I,

section 10 of the Federal Constitution.

STATEMENT OF RELATED PROCEEDINGS

Lawrence v. State, 308 So. 3d 544 (Fla. 2020), No. SC18-2061 (Fla. opinion and

judgment rendered on October 9, 2020; order denying rehearing issued on December

31, 2020; mandate issued on January 19, 2021).

Lawrence v. State, 969 So. 2d 294 (Fla. 2007), No. SC06-352 and No. SC061152 (Fla. opinion and judgment rendered November 1, 2007; mandate issued on

November 26, 2007).

Lawrence v. State, 846 So. 2d 440 (Fla. 2003), No. SC00-1827 (Fla. opinion and

judgment rendered on March 20, 2003; mandate issued May 14, 2003, petition for

certiorari denied October 14, 2003).

State v. Lawrence, No. 57 1998 CF 270 (Fla. 1st Cir. Ct. judgment entered on

September 12, 2018).

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

STATEMENT OF RELATED PROCEEDINGS .......................................................... iii

TABLE OF CONTENTS ............................................................................................... iv

TABLE OF AUTHORITIES ......................................................................................... vi

PETITION FOR WRIT OF CERTIORARI ................................................................... 1

OPINION BELOW......................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL PROVISIONS INVOLVED......................................................... 1

INTRODUCTION AND STATEMENT OF THE CASE .............................................. 2

REASONS FOR GRANTING THE PETITION ............................................................ 5

Eliminating Proportionality Review from Florida’s

Capital Sentencing Scheme Contravenes this Court’s Eighth

Amendment Jurisprudence. ............................................................................... 5

This Court’s Decisions Expressly Allow States to Include

Proportionality Review as a Necessary Component of a Capital

Sentencing Scheme. ............................................................................................ 5

Eliminating Comparative Proportionality Review from

Florida’s Capital Sentencing Scheme Leaves the Scheme

Lacking Checks on Arbitrary or Inconsistent Imposition of

Death Sentences, Which Violates the Eighth Amendment. .............................. 6

Eliminating a Comparative Review of the Basis for

II.

Imposing Death Sentences Leaves Individual Defendants in

Florida Susceptible to Being Treated Differently from Those

Similarly Situated without a Rational Justification for or

Appellate Review of the Distinction, in Violation of the Right to

Equal Protection Under the Law Guaranteed by the Fourteenth

Amendment to the Federal Constitution. ........................................................ 13

III. Eliminating Proportionality Review from Florida’s

Capital Sentencing Scheme Violates Due Process and the Ex

Post Facto Prohibition of Article I, section 10 of the Federal

Constitution....................................................................................................... 16

CONCLUSION............................................................................................................. 21

APPENDIX

Opinion of the Florida Supreme Court

Rendered on October 29, 2020...............................................................................A-1

Order of the Florida Supreme Court Denying Motion for Rehearing

Rendered on December 31, 2020 ...........................................................................B-1

TABLE OF AUTHORITIES

PAGES

CASES

Beazell v. Ohio, 269 U.S. 167 (1925) ........................................................................... 18

Bouie v. City of Columbia, 378 U.S. 347 (1964).............................................. 16, 17, 18

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) ......................... 13

Engquist v. Oregon Dep’t of Ag., 553 U.S. 591 (2008) .......................................... 13, 14

Espinosa v. Florida, 505 U.S. 1079 (1992).................................................................. 12

Furman v. Georgia, 408 U.S. 238 (1972) .......................................................... 5, 11, 14

Godfrey v. Georgia, 446 U.S. 420 (1980) ................................................. 8, 9, 10, 11, 12

Gregg v. Georgia, 428 U.S. 153 (1976) .......................................................................... 7

Hurst v. Florida, 136 S. Ct. 616 (2016) ......................................................................... 3

Hurst v. State, 202 So. 3d 40 (Fla. 2016), receded from by State v. Poole,

297 So. 3d 487 (Fla. 2020) ........................................................................................ 3

Jurek v. Texas, 428 U.S. 262 (1976) .............................................................................. 7

Kring v. Missouri, 107 U.S. 221 (1883) ....................................................................... 17

Lawrence v. Florida, 124 S. Ct. 394 (2003) ................................................................... 2

Lawrence v. Secretary, Florida Dep’t of Corrections, 700 F. 3d 464 (11th

Cir. 2012) .................................................................................................................. 3

Lawrence v. State, 308 So. 3d 544 (Fla. 2020) ......................... i, 3, 4, 5, 6, 8, 14, 19, 20

Lawrence v. State, 846 So. 2d 440 (Fla. 2003) .............................................................. 2

Lawrence v. State, 969 So. 2d 294 (Fla. 2007) .............................................................. 2

Leftwich v. Florida Dept. of Corrections, 148 So. 3d 79 (Fla. 2014) ........................... 16

Marks v. United States, 430 U.S. 188 (1977) .............................................................. 16

Maynard v. Cartwright, 486 U.S. 356 (1988) ................................................... 5, 10, 11

McCloud v. State, 208 So. 3d 668 (Fla. 2016) ............................................................. 19

Miller v. Florida, 482 U.S. 423 (1987) ........................................................................ 17

Peugh v. United States, 569 U.S. 530 (2013) .............................................................. 17

Phillips v. State, 207 So. 3d 212 (Fla. 2016) ............................................................... 20

Proffitt v. Florida, 428 U.S. 242 (1976) .................................................................. i, 5, 7

Pulley v. Harris, 465 U.S. 37 (1984)................................................................... i, 5, 6, 7

Rogers v. Tennessee, 532 U.S. 451 (2001) ............................................................. 18, 19

Sager v. State, 699 So. 2d 619 (Fla. 1997) .................................................................. 15

Scott v. State, 66 So. 3d 925 (Fla. 2011) ...................................................................... 20

Sochor v. Florida, 504 U.S. 527 (1992) ....................................................................... 12

State v. Dixon, 283 So. 2d 1 (Fla. 1973) .................................................................. 5, 14

Village of Willowbrook v. Olech, 528 U.S. 562 (2000) ................................................ 13

Wood v. State, 209 So. 3d 1217 (Fla. 2017) ................................................................. 19

Yacob v. State, 136 So. 3d 539 (Fla. 2014) .......................................................... 4, 8, 19

vii

CONSTITUTIONAL PROVISIONS

Art. 1, § 17, Fla. Const. .................................................................................................. 4

U.S. Const. amend. VIII ................................................................................ 1, 6, 11, 12

U.S. Const. amend. XIV ........................................................................................ i, 1, 13

U.S. Const. Art. I, § 10 ......................................................................................... ii, 1, 16

STATUTES

§ 941.141(6)(a)-(p) (2020) ............................................................................................... 8

OTHER AUTHORITIES

“The 2% Death Penalty: The Geographic Arbitrariness of Capital

Punishment in the United States,” available at

deathpenaltyinfo.org/stories/the-clustering-of-the-death-penalty ....................... 15

Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme

Court, 109 U. Pa. L. Rev. 67 (1960) ....................................................................... 17

Fair Punishment Project, “Too Broken to Fix: Part 1/An In-depth Look

at America’s Outlier Death Penalty Counties,” available at

http://mediad.publicbroadcasting.net/p/wjct/files/201608/FPPTooBroken.pdf ........................................................................................................ 15

Ken Driggs, “The Most Aggravated and Least Mitigated Murders”:

Capital Proportionality Review in Florida, 11 St. Thomas L. Rev.

207 (1999) ......................................................................................................... 14, 15

Stephen K. Harper, The False Promise of Proffitt, 67 U. Miami L. Rev.

413 (2013) ............................................................................................................... 12

viii

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

The opinion below is reported at Lawrence v. State, 308 So. 3d 544 (Fla.

2020), and a copy is attached to this Petition as Appendix A. The order of the

Florida Supreme Court denying Petitioner’s motion for rehearing, which was

rendered on December 31, 2020, is attached to this Petition as Appendix B.

JURISDICTION

The Florida Supreme Court issued its judgment affirming Petitioner’s death

sentence on October 29, 2020 and denied Petitioner’s motion for rehearing on

December 31, 2020. This Court has extended the time for filing petitions for

certiorari to 150 days for petitions due on or after March 19, 2020. This Court has

jurisdiction of this matter pursuant to 28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

Article I, Section 10, of the United States Constitution provides in relevant

part that “No State shall … pass any … ex post facto Law….”

The Eighth Amendment to the United States Constitution prohibits “cruel and

unusual punishments.”

The Fourteenth Amendment to the United States Constitution provides in

relevant part: “[N]or shall any state deprive any person of life, liberty, or property

without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.”

INTRODUCTION AND STATEMENT OF THE CASE

On March 24, 2000, Mr. Lawrence entered a plea of guilty, as a principal, of

the first-degree murder of Jennifer Robinson. See Lawrence v. State, 846 So. 2d 440,

442 (Fla. 2003). The trial court accepted, and the State did not attempt to refute,

Mr. Lawrence’s assertion that his co-defendant, Jeremiah Rodgers, actually killed

Ms. Robinson by shooting her. Id. n.1. Mr. Lawrence entered a guilty or no contest

plea in two other cases in which Mr. Rodgers was a co-defendant; Mr. Rodgers was

the alleged shooter in one of those cases as well. Id. at 444 n.3. Experts testified at

Mr. Lawrence’s first trial that he suffered from organic brain damage and mental

illness, including schizophrenia. Id. at 445-46. Following a penalty phase trial, a

jury recommended a sentence of death by a vote of eleven to one; the trial court

imposed that penalty, and the Florida Supreme Court affirmed the conviction and

sentence on direct appeal. Id. at 444, 456. The court was convinced Mr. Lawrence’s

ability to conform his conduct to the requirements of the law was impaired, but not

that it was substantially impaired. Id. at 445-46. A petition for writ of certiorari was

denied on October 14, 2003, in Lawrence v. Florida, 124 S. Ct. 394 (2003).

The Florida Supreme Court affirmed the denial of a post-conviction claim

that Mr. Lawrence’s plea was not voluntary because of Mr. Lawrence’s mental

illness. See Lawrence v. State, 969 So. 2d 294, 301 (Fla. 2007). The decision

acknowledges Mr. Lawrence’s Mr. Lawrence’s petition for writ of habeas corpus in

federal court was similarly denied, and the Eleventh Circuit Court of Appeals

affirmed the denial in 2012. See Lawrence v. Secretary, Florida Dep’t of Corrections,

700 F. 3d 464 (11th Cir. 2012).

Subsequently, this Court found Florida’s death penalty statute to be

unconstitutional because the statute allowed the judge, rather than the jury, to

make the determinations based upon the recommendations from the jury required

for the imposition of the death penalty. Hurst v. Florida, 136 S. Ct. 616 (2016). The

Florida Supreme Court, on remand, held that a unanimous jury must make the

findings necessary to impose a death sentence. Hurst v. State, 202 So. 3d 40, 44

(Fla. 2016), receded from by State v. Poole, 297 So. 3d 487 (Fla. 2020). Following an

Amended Successive Motion to Vacate Death Sentence, and Alternatively Motion to

Correct Illegal Sentence, the parties stipulated Mr. Lawrence was entitled to

resentencing pursuant to Hurst v. State.

Mr. Lawrence waived his right to a penalty phase jury, to present mitigation,

and to challenge the State’s evidence. The trial court found his waivers were

knowing and voluntary following a hearing. The trial court then appointed special

counsel for the purpose of assisting the court with mitigation. See Lawrence v. State,

308 So. 3d 544, 547 (Fla. 2020). The trial court resentenced Mr. Lawrence to death,

finding the aggravating circumstances “greatly” outweighed the mitigating

circumstances, “inclusive of the significant mental mitigation.” Id. at 548 (emphasis

supplied).

On appeal, the State of Florida argued that review of the proportionality of a

death sentence, although expressly required by court rule, was precluded by the

conformity clause of article 1, section 17 of the Florida Constitution. See Lawrence,

308 So. 3d at 548. This argument had been rejected six years earlier in Yacob v.

State, 136 So. 3d 539, 546 (Fla. 2014), which held that Florida’s comparative

proportionality requirement was derived from Florida’s capital punishment statute

and grounded in 40 years of precedent. The Lawrence court receded from Yacob and

“eliminate[d] comparative proportionality review” from the appellate review of

death sentences. Lawrence, 308 So. 3d at 552.

REASONS FOR GRANTING THE PETITION

Eliminating Proportionality Review from

Florida’s Capital Sentencing Scheme Contravenes

this Court’s Eighth Amendment Jurisprudence.

This Court’s Decisions Expressly Allow States

to Include Proportionality Review as a Necessary

Component of a Capital Sentencing Scheme.

Ever since its decision in Furman v. Georgia, 408 U.S. 238 (1972), this Court

has affirmed that “channeling and limiting of the sentencer’s discretion is imposing

the death penalty is a fundamental constitutional requirement for sufficiently

minimizing the risk of wholly arbitrary and capricious action.” Maynard v.

Cartwright, 486 U.S. 356, 352 (1988). As the majority decision below notes, the

Florida Supreme Court established comparative proportionality review in Florida’s

post-Furman sentencing scheme “to ensure that the statute would be implemented

in a way that would avoid the constitutional concerns articulated in Furman.”

Lawrence, 308 So. 3d at 549 (citing State v. Dixon, 283 So. 2d 1 (Fla. 1973)). This

Court noted favorably Florida’s practice of reviewing the proportionality of death

sentences in its decision upholding Florida’s post-Furman capital sentencing

scheme. See Proffit v. Florida, 428 U.S. 242, 251 (1976).

This Court held in Pulley v. Harris, 465 U.S. 37, 50-51 (1984), that

comparative proportionality analysis is not the only way to limit the sentencer’s

discretion in imposing the death penalty. The Florida Supreme Court relied on

Pulley and the State’s conformity clause in the decision below when overruling State

v. Dixon, 283 So. 2d 1, 10 (Fla. 1973), which had required comparative

proportionality review since 1973. See Lawrence, 308 So. 3d at 548. The majority

below held that the state constitution’s conformity clause limited the court’s

authority to review death sentences and that this Court’s decision in Pulley

foreclosed the Florida Supreme Court from recognizing a comparative

proportionality requirement predicated on the Eighth Amendment. Lawrence, 308

So. 3d at 550-51. That holding misapplied Pulley, which expressly authorized

proportionality review as part of a capital sentencing scheme. See Pulley, 465 U.S.

at 42. The Florida Supreme Court’s holding in this case, which receded from nearly

50 years of precedent, is not faithful to this Court’s Eighth Amendment

jurisprudence, including the Pulley decision.

Eliminating Comparative Proportionality

Review from Florida’s Capital Sentencing Scheme

Leaves the Scheme Lacking Checks on Arbitrary or

Inconsistent Imposition of Death Sentences, Which

Violates the Eighth Amendment.

The Pulley court’s holding that comparative proportionality analysis is not

the only way to satisfy the Eighth Amendment must be reconciled with the

principle that a constitutional sentencing scheme has to include a meaningful basis

for distinguishing the small number of cases in which the death penalty is

appropriate from the much larger number of cases in which an offense is charged

that could lead to a capital sentence.

In Pulley, this Court approved of a California statute that did not require the

California Supreme Court to compare the defendant’s sentence with sentences

imposed in similar cases. 465 U.S. at 44. The statute at issue required the finding of

at least one special circumstance before the death penalty could be considered,

limited the jury’s sentencing discretion with a list of seven statutory factors, and

required review by the California Supreme Court. See id. at 53. The Court held this

was adequate to limit the death penalty to a small sub-class of capital-eligible cases

and prevent the danger of arbitrary results. Id. The Court reviewed three cases in

which it had upheld state statutes both with and without a mandate to review

proportionality. See id. at 45-48 (discussing Gregg v. Georgia, 428 U.S. 153 (1976);

Proffitt v. Florida, 428 U.S. 242 (1976); and Jurek v. Texas, 428 U.S. 262 (1976)). In

each case, the applicable statute limited the sentencer’s discretion through

bifurcated proceedings, the requirement of aggravating circumstances, and the

consideration of mitigating circumstances; proportionality review was an additional

safeguard, but not a constitutionally required one. See id. In discussing the Texas

sentencing scheme, which lacked a statutory or judicially created requirement of

comparative proportionality review, the Court nevertheless noted the “prompt

judicial review of the jury’s decision in a court with statewide jurisdiction.” Id. at

48-49 (quoting Jurek v. Texas, 428 U.S. at 276).

The Court further noted that the Texas statute at issue effectively limited the

sentencer’s discretion by requiring the finding of one of five statutory aggravators to

make a defendant eligible for a death sentence. Id. at 48 n.9. By narrowing its

definition of capital murder, the Texas statute limited the death penalty to a

“narrowly defined group of the most brutal crimes and aim[ed] at limiting its

imposition to similar offenses under similar circumstances.” Id. at 50 n.10 (quoting

Jurek, 428 U.S. at 278-79).

In contrast, Florida’s capital sentencing scheme makes a defendant eligible

for a death sentence if any one of 16 statutory aggravators is found. § 941.141(6)(a)(p) (2020). The Florida statute does not, on its face, meaningfully limit the number

of persons who are subject to the death penalty or provide a meaningful basis for

ensuring that death is imposed only for similar offenses occurring under similar

circumstances. Florida’s long-standing practice of comparative proportionality

review does that. See Lawrence, 308 So. 3d at 544-55 (Labarga, J., dissenting); see

also Yacob, 136 So. 3d at 546-47.

In another line of cases addressing the constitutionally required narrowing of

the death penalty, but not involving the constitutionality of comparative

proportionality, the Court has recognized that the sentencer’s discretion to make

findings regarding aggravating circumstances must be channeled and limited in a

manner that avoids arbitrary sentencing. See, e.g., Godfrey v. Georgia, 446 U.S. 420

(1980). In Godfrey, the defendant was convicted of shooting his estranged wife and

mother-in-law, and of the aggravated assault of his daughter, following a heated

argument. The aggravating circumstance at issue, under Georgia law, was that the

capital offense was “outrageously or wantonly vile, horrible or inhuman in that it

involved torture, depravity of mind, or an aggravated battery to the victim.” Id. at

422 (quoting Ga. Code § 27–2534.1(b)(7) (1978)). The statutory language had

previously been upheld as not unconstitutional on its face. Id. (citing Gregg v.

Georgia, 428 U.S. 153). Although the state conceded there was no allegation of

torture or aggravated battery, the jury was instructed using the statutory language

above, and made findings beyond a reasonable doubt that the two killings were

“outrageously or wantonly vile, horrible and inhuman.” Id. at 426.

This Court found the language at issue did nothing to restrain the “arbitrary

and capricious infliction of the death sentence,” as “[a] person of ordinary sensibility

could fairly characterize almost every murder in those terms. Id. at 428-29. The

Court noted that the Georgia Supreme Court had previously affirmed two death

sentences based on that statutory language alone: one case involved a victim who

was beaten, burned, raped, and then strangled, and the other involved children who

were sodomized and then strangled. Id. at 429-30. And, in other cases involving that

language, the state high court had concluded the aggravating circumstances had to

demonstrate “torture, depravity of mind, or an aggravated battery to the victim.” Id.

at 431. However, in Godfrey, none of these circumstances were present. Id. at 432.

Despite this, the Georgia Supreme Court held the verdict was “factually

substantiated.” Id.

This Court explained why the state court did not apply a “constitutional

construction of the phrase ‘outrageously or wantonly vile, horrible or inhuman”:

The petitioner’s crimes cannot be said to have reflected a

consciousness materially more “depraved” than that of

any person guilty of murder. …[A]s was said in Gardner

v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51

L.Ed.2d 393, it “is of vital importance to the defendant

and to the community that any decision to impose the

death sentence be, and appear to be, based on reason

rather than caprice or emotion.”

That cannot be said here. There is no principled way to

distinguish this case, in which the death penalty was

imposed, from the many cases in which it was not.

Godfrey, 446 U.S. at 433. Inherent in the Court’s observation about distinguishing a

case where a death sentence is imposed is a comparative review of the aggravating

circumstances in a particular case.

Maynard, decided four years after Pulley, involved a similar vagueness

challenge to the “especially heinous, atrocious, or cruel” aggravator under

Oklahoma law. In post-conviction proceedings the Court of Appeals for the Tenth

Circuit held that language did not give the jury sufficient guidance to avoid the

danger of arbitrary sentencing, and found the state court had not adopted any

limiting construction of the phrase that would cure its vagueness. See Maynard, 486

U.S. at 359-60. This Court upheld the conclusion that the language was

unconstitutionally vague:

The Court of Appeals, with some care, reviewed the

evolution in the interpretation of the “especially heinous,

atrocious, or cruel” aggravating circumstance by the

Oklahoma Court of Criminal Appeals up to and including

its decision in this case. Its reading of the cases was that

while the Oklahoma court had considered the attitude of

the killer, the manner of the killing, and the suffering of

the victim to be relevant and sufficient to support the

aggravating circumstance, that court had “refused to hold

that any one of those factors must be present for a murder

to satisfy this aggravating circumstance.” 822 F. 2d, at

1491. Rather, the Oklahoma court simply had reviewed

all of the circumstances of the murder and decided

whether the facts made out the aggravating circumstance.

Ibid. We normally defer to courts of appeals in their

interpretation of state law, and we see no reason not to

accept the Court of Appeals’ statements about state law in

this case, especially since the State does not challenge

this reading of the Oklahoma cases.

Maynard, 486 U.S. at 360-61 (emphasis in original).

The Court rejected the State of Oklahoma’s argument that the death penalty

could be affirmed in a specific case based on the factual circumstances of that case.

Id. at 361. The Court explained the State’s argument was a due process “notice”

argument that “fail[ed] to recognize the rationale of our cases construing and

applying the Eighth Amendment.” Id. Under the Eighth Amendment, the issue was

not what was proved at trial, but whether the challenged provision adequately

informed juries of what was necessary or, alternatively, left both juries and

appellate courts with “the kind of open-ended discretion which was held invalid in

Furman v. Georgia.” Maynard, 486 U.S. at 362. The Court stated its analysis was

controlled by Godfrey, which “plainly rejected the submission that a particular set of

facts surrounding a murder, however, shocking they might be, were enough in

themselves, and without some narrowing principle to apply to those facts, to

warrant the imposition of the death penalty.” See Maynard, 486 U.S. at 363.

From Furman, Godfrey, and Maynard, the principle can be derived that the

presence of facts demonstrating aggravating circumstances is not enough, by itself,

to warrant the imposition of the death penalty: “A capital sentencing scheme

must…provide a ‘meaningful basis for distinguishing the few cases in which [the

penalty] is imposed from the many cases in which it is not.’” Godfrey, 446 U.S. at

427-28 (quoting Gregg v. Georgia, 428 U.S. 153, 188 (1976) and Furman v. Georgia,

408 U.S. at 313). In a capital sentencing scheme where the available aggravating

factors do not serve that purpose, some other check on arbitrary sentencing must be

in place. The decision below leaves Florida without a necessary check on arbitrary

sentences resulting from prosecutorial discretion, race, geography, rejection of

mitigating circumstances, or simple chance.

Given the breadth of the myriad statutory aggravators in Florida’s death

penalty statute, see, e.g., Espinosa v. Florida, 505 U.S. 1079, 1081 (1992), it is

impossible to say they “channel the sentencer’s discretion by clear and objective

standards” as required by, inter alia, Godfrey, 446 U.S. at 428. 1 Moreover, the

sheer number of aggravating factors in Florida’s scheme serve a broadening, not a

narrowing, function, resulting in nearly all first-degree murder cases being deatheligible. See generally Stephen K. Harper, The False Promise of Proffitt, 67 U.

Miami L. Rev. 413, 417-23 (2013) (noting the number of statutory aggravating

factors in Florida has doubled since this Court’s decision in Proffitt).

A meaningful narrowing of the group of defendants who may face execution

must involve more than a mechanical verification of whether the State proved a

particular aggravator. Without viewing the nature and proof of aggravating

circumstances in an individual case within the context of the body of decisions in

which death sentences have been upheld, there is no limit on the sentencer’s

discretion, and this does not comport with Eighth Amendment standards.

1 Consistent with the general principle of narrowing death-eligible offenses to a

small, well defined group, an individual aggravating factor that is impermissibly

vague on its face can survive Eighth Amendment scrutiny if the trial court, in

sentencing, is guided by appropriately narrowing judicial constructions of the factor.

See Sochor v. Florida, 504 U.S. 527, 536-37 (1992) (holding the facially overbroad

“heinousness” factor under the then-current Florida capital sentencing statute did

not violate the Eighth Amendment because it had consistently been limited in

application by the Florida Supreme Court).

II.

Eliminating a Comparative Review of the

Basis for Imposing Death Sentences Leaves

Individual Defendants in Florida Susceptible to

Being Treated Differently from Those Similarly

Situated without a Rational Justification for or

Appellate Review of the Distinction, in Violation of

the Right to Equal Protection Under the Law

Guaranteed by the Fourteenth Amendment to the

Federal Constitution.

The Equal Protection clause guarantees that similarly situated persons are

treated similarly under the law. See, e.g., City of Cleburne, Tex. v. Cleburne Living

Ctr., 473 U.S. 432, 439 (1985). Distinctions or classifications in the law must have

some rational basis, see id. at 440, such as a “different or special hazard” posed by

those who are treated more strictly, see id. at 449. Equal protection claims can be

brought by a “class of one” when the claimant “allege[s] that she has been

intentionally treated differently from others similarly situated and that there is no

rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528

U.S. 562, 563 (2000). The Fourteenth Amendment guarantee of equal protection is

negated when a capital sentencing scheme does not include some rational way of

ensuring that an individual defendant is not sentenced to death when other,

similarly situated defendants received a lesser penalty. Cf. Engquist v. Oregon Dep’t

of Ag., 553 U.S. 591, 602 (2008) (“As we explained long ago, the Fourteenth

Amendment "requires that all persons subjected to . . . legislation shall be treated

alike, under like circumstances and conditions, both in the privileges conferred and

in the liabilities imposed.”) (quoting Hayes v. Missouri, 120 U.S. 68, 71-72, 7 S.Ct.

350, 30 L.Ed. 578 (1887)). This Court has stated that what is significant in “class of

one” cases is “the existence of a clear standard against which departures, even for a

single plaintiff, could be readily assessed.” Id.

The proportionality review required under Florida law until the Lawrence

decision furthered the goal of ensuring the death penalty would not be imposed

when the circumstances of an individual defendant were either unlike those of other

defendants against whom the death penalty had been imposed, or similar to those of

other defendants whose lives had been spared. This review furthered the goal of

reserving a death sentence for “only the most aggravated and unmitigated of most

serious crimes” when Florida revised its death penalty laws after Furman. State v.

Dixon, 283 So. 2d 1, 7 (Fla. 1973), superseded by statute on other grounds as stated

in State v. Dene, 533 So. 2d 265, 267 (Fla. 1988). The Florida Supreme Court

described Florida’s post-Furman statute as “a system whereby the possible

aggravating and mitigating circumstances are defined, but where the weighing

process is left to the carefully scrutinized judgment of jurors and judges.” Id. In the

years following Furman, a substantial body of case law developed in which the

Florida Supreme Court reversed death sentences based on its detailed comparative

proportionality review of the aggravators and mitigators present in a given case.

See generally Ken Driggs, “The Most Aggravated and Least Mitigated Murders”:

Capital Proportionality Review in Florida, 11 St. Thomas L. Rev. 207, 232-54 (1999)

(identifying common themes among cases in which proportionality relief was

granted or denied). 2

The Florida Supreme Court’s holding that its previous proportionality review

is prohibited by the state’s conformity clause means there will be no meaningful

appellate review of the decision to impose death in one case but not another. This

means a death sentence in Florida will increasingly result from chance, bias,

prosecutorial discretion, and geography 3 rather than from consistent application of

the capital sentencing statute. In effect, each capital defendant will be a “class of

one,” with no way to demonstrate he has been treated differently from someone

similarly situated without a rational basis for the distinction.

2 See, e.g., Sager v. State, 699 So. 2d 619 (Fla. 1997) (vacating a death sentence on

proportionality grounds, despite finding the “especially heinous, atrocious, or cruel”

aggravator was present, where the defendant suffered from mental illness and had

only recently been released from a mental health facility, and where evidence

suggested his co-defendant was the leader in the charged offense).

3 According to the Death Penalty Information Center, “[f]ewer than 2% of counties

in the U.S. account for more than half of the nation’s death-row population... [and

f]ewer than 2% of U.S. counties also account for more than half of all executions

carried out across the country since the Supreme Court upheld the constitutionality

of capital punishment in 1976. See “The 2% Death Penalty: The Geographic

Arbitrariness of Capital Punishment in the United States,” available at

deathpenaltyinfo.org/stories/the-clustering-of-the-death-penalty. The geographic

disparities in seeking and applying the death penalty cannot be attributed to

differences in population. See Fair Punishment Project, “Too Broken to Fix: Part

1/An In-depth Look at America’s Outlier Death Penalty Counties,” at 14, available

at http://mediad.publicbroadcasting.net/p/wjct/files/201608/FPP-TooBroken.pdf

(“Between 2010 and 2015, roughly one-quarter of Florida’s death sentences came

from Duval County, a county that holds only five percent of the state’s population.”).

See also Driggs, supra, at 272-73 (describing geographic disparities in the

application of the death penalty in Georgia and Texas).

III. Eliminating Proportionality Review from

Florida’s Capital Sentencing Scheme Violates Due

Process and the Ex Post Facto Prohibition of

Article I, section 10 of the Federal Constitution.

Article I, § 10 of the United States Constitution prohibits ex post facto laws.

The federal due process clause creates a similar limitation on judicial precedent:

“retroactive application of precedent is governed by the due process clause, which

requires that the retroactive application cannot result in an unforeseeable

enlargement of [a] criminal statute.” Leftwich v. Florida Dept. of Corrections, 148

So. 3d 79, 83 (Fla. 2014) (citing Bouie v. City of Columbia, 378 U.S. 347, 353 (1964));

see also Marks v. United States, 430 U.S. 188, 191-92 (1977) (recognizing the Due

Process Clause of the Fifth Amendment limits judicial action in the manner the ex

post facto clause limits the powers of the legislative branch).

The due process clause, like the ex post facto clause, protects individuals from

unforeseeable changes in how the law is applied. In Bouie v. City of Columbia, 378

U.S. 347 (1964), this Court held that South Carolina could not interpret its trespass

statute in a way it had not previously been applied to uphold the petitioners’

criminal convictions. The petitioners, participants in a sit-in at an Eckerd’s Drug

Store lunch counter, were arrested for a breach of the peace, and subsequently

charged. Id. at 361-62. In affirming the convictions, the South Carolina Supreme

Court construed the applicable statute to prohibit not only entering after being

warned not to enter, but also remaining after being asked to leave. See id. at 362. In

doing so, this Court held, the state court “deprived petitioners of rights guaranteed

to them by the Due Process Clause.” Id. The Court’s reasoning focused on the

foreseeability of the ruling — “whether [the] state court’s construction of a criminal

statute was so unforeseeable as to deprive the defendant of the fair warning to

which the Constitution entitles him.” Id. at 354.

The holding in Bouie rested in part on the vagueness doctrine and the due

process violation that results from “a deprivation of the right of fair warning.” See

378 US. 352-53 (citing Amsterdam, Note, The Void-for-Vagueness Doctrine in the

Supreme Court, 109 U. Pa. L. Rev. 67, 73-74 n.34 (1960)). But fair warning is only

one of the concerns underlying both due process and the ex post facto doctrine; in a

larger sense, they protect defendants from unpredictable legal rules that “inject[…]

into the governmental wheel so much free play that in the practical course of its

operation it is likely to function erratically….” Amsterdam, supra, at 90.

A central concern of the federal ex post facto clause was to restrain federal

and state legislatures “from enacting arbitrary or vindictive legislation.” Miller v.

Florida, 482 U.S. 423, 430 (1987). In addition, even when fair warning is not

directly implicated, “the Clause also safeguards ‘a fundamental fairness

interest…in having the government abide by the rules of law it establishes to

govern the circumstances under which it can deprive a person of his or her liberty or

life.’” Peugh v. United States, 569 U.S. 530, 544 (2013) (quoting Carmell v. Texas,

529 U.S. 513, 533 (2000)). Restraining the power of the government to change the

law retroactively was central to the creation of the ex post facto clause in the Bill of

Rights. See, e.g., Kring v. Missouri, 107 U.S. 221, 227 (1883) (overruled on other

grounds by Collins v. Youngblood, 497 U.S. 37, 50 (1990)). The clause was

understood to prohibit “any statute which punishes as a crime an act previously

committed, which was innocent when done, which makes more burdensome the

punishment for a crime, after its commission, or which deprives one charged with

crime of any defense available according to law at the time when the act was

committed.” Beazell v. Ohio, 269 U.S. 167, 169 (1925). Due process protects against

judicial changes in the law that accomplish the same result.

In Rogers v. Tennessee, 532 U.S. 451 (2001), where the petitioner argued he

had been denied due process of law when a Tennessee court refused to give him the

benefit of the common-law “year and a day” rule precluding prosecution for murder

if a death occurred beyond that period, the Court observed that “limitations on ex

post facto judicial decisionmaking are inherent in the notion of due process.” Id. at

456. Citing Bouie, the court stated due process limits retroactive application of

judicial decisions when they are “unexpected and indefensible by reference to the

law which had been expressed prior to the conduct at issue.” Id. at 461 (citing Bouie,

378 U.S. at 354). The Court reasoned this limitation gives courts the flexibility they

need to develop and apply the common law; in addition, it “adequately respects the

due process concern with fundamental fairness and protects against vindictive or

arbitrary judicial lawmaking by safeguarding defendants against unjustified and

unpredictable breaks with prior law.” Id. at 462. The Court then engaged in a

thorough review of the history of the “year and a day” rule, finding it was “widely

viewed as an outdated relic of the common law,” id., and noting that it had been

abolished in the vast majority of jurisdictions, id. at 463. Because the rule was

obsolete and little-used, abrogating it did not violate due process. Id.

Proportionality review is neither obsolete nor little-used. Proportionality

review, as noted in the dissenting opinion below, is conducted in a majority of

jurisdictions maintaining the death penalty, typically but not always pursuant to a

statutory mandate. Lawrence, 308 So. 3d at 556-57 (Labarga, J., dissenting).

Until this case, the Florida Supreme Court had repeatedly upheld the

requirement of proportionality review. See, e.g., Yacob, 136 So. 3d at 546-49.

Moreover, until its decision in this case, the Florida Supreme Court conducted a

proportionality review in connection with every capital appeal. This review has

resulted in the vacating of numerous death sentences since the death penalty was

reinstated in Florida. The most recent example of this was in 2017, when the court

vacated a death sentence in Wood v. State, 209 So. 3d 1217 (Fla. 2017). In that case,

after striking two of the three aggravating factors the trial court had relied on to

impose a death sentence, the court reviewed the totality of the remaining

aggravating and mitigating circumstances and concluded the death penalty was

disproportionate. Id. at 1235. The court also noted the defendant’s level of

culpability relative to a co-defendant whose DNA was found on the murder weapon

and who, according to evidence adduced at trial, likely fired the fatal shot. Id. at

1229, 1235-36; see also McCloud v. State, 208 So. 3d 668, 688-89 (Fla. 2016)

(vacating a death sentence where the defendant was less culpable than a

codefendant who received a life sentence in a plea agreement); Phillips v. State, 207

So. 3d 212, 221-22 (Fla. 2016) (vacating the death sentence of a defendant who was

18 years old at the time of the capital offenses and whose subaverage intelligence

made him especially susceptible to the influence of others); Scott v. State, 66 So. 3d

925, 935-37 (Fla. 2011) (vacating a death sentence where the capital offense did not

appear planned and nine non-statutory mitigating factors were present).

Discarding proportionality review is an “unjustified and unpredictable” break

with decades of precedent in this state. The holding in Lawrence is a departure from

established law of a magnitude that violates due process and the prohibition against

ex post facto laws.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,