Petition for Writ of Certiorari — Knight v. Florida

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oFFict OF T¥§ PH SUPREME COURT OF THE UNITED STATES

October Term, 1998

THOMAS KNIGHT,

N/K/A ASKARI ABDULLAH MUHAMMAD,

Petitioner,

FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

*Counsel of Record for Petitioner

BENNETT H. BRUMMER

Public Defender

Eleventh Judicial Circuit of Florida

1320 N.W. 14th Street

Miami, Florida 33125

(305) 545-1958

BETH C. WEITZNER*

Assistant Public Defender

and

LOUIS CAMPBELL

Assistant Public Defender

[U 19 PP

THIS IS A CAPITAL CASE

QUESTIONS PRESENTED

Whether executing a prisoner nearly a generation after he was convicted and

sentenced to die violates the prohibition against cruel and unusual punishments of the

Eighth Amendment to the United States Constitution.

Whether imposition of the death penalty through the retrospective application of a

statutory aggravating factor enacted after the commission of the crirnes violates the

prohibition against ex post facto punishments contained in Article I, section 10 of the

United States Constitution.

TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS AT ISSUE ........... cc cece cece eee ee eens 2

SEAT EEE OE EE GED, bcd iccdes seat ped peceicrcletes caenvbneeccunwae 2

WHY THE WRIT SHOULD BE GRANTED ............: ccc eeeeccteeeencecees 9

1.

EXECUTING THE PETITIONER NEARLY A GENERATION

AFTER HE WAS ORIGINALLY CONVICTED AND

SENTENCED TO DEATH WOULD VIOLATE THE

PROHIBITION AGAINST CRUEL AND UNUSUAL

PUNISHMENTS OF THE EIGHTH AMENDMENT TO THE

UNITED STATES CONSTITUTION .........:seeceecc eee ceeceee 9

Il.

IMPOSITION OF THE DEATH PENALTY THROUGH THE

RETROSPECTIVE APPLICATION OF A STATUTORY

AGGRAVATING FACTOR ENACTED AFTER THE

COMMISSION OF THE CRIMES VIOLATED THE

PROHIBITION AGAINST EX POST FACTO

PUNISHMENTS OF ARTICLE I, § 10 OF THE UNITED

EPR MAIO EET UI EIIGT: nie'c cob ond ccdidessesdvcceocensecnses 29

eRe I OR aS a pee Pome eT er ees Sr Pye ore res tT 39

APPENDIX

Opinion of the Supreme Court of Florida, reported in Knight v. State, 721 So.

2d 287 (Fla. 1998) .......ccccnsccccccvcccccccestessevessvesvces A-1-16

Order of the Supreme Court of Florida denying rehearing ..............-. A-17

Revised opinion of the Supreme Court of Florida ...........-++++++. A-18-38

CASES

Banda v, State

II, Sa rs ed cone cvs s¥eke<hdheet 32, 33

Bell v. State

ee, A, MI oso Sec dbcc ced case sdpesdecccdccosesecee 27

Bowen v.State

911 S.W.2d 555 (Ark. 1995) .............. ORE SRS eS ie ee * 34, 37

Bush v. State

i i bi serenseanes 27

California D fC Moral

EL TERS ee Oe a Eee ae Ae 31

No. S.C. 73/93 (Zimbabwe, 1993) ............ Aw ea supe ee 22

Ceja v. Stewart

ee ley puke oue eeeevaces 27

Coker v. Georgia

gS Fa GI EE PS LG Sa SRY Pre iey © eR ee eked ae 12, 19

Coleman v. Balkcom

ee anes asuus 6awhecises bee 13, 14,21, 28

Collins v. Youngblood

RR Sie) rae 5d oy dae dcnducannaumas 30

Combs vy. State

403 So. 2d 418 (Fla. 1981),

cert. denied, 465 U.S. 1052 (1984) .... 6... cece cece eee ee eeee 30, 33, 35, 36, 37

Dobbert v. Florida

Se Se MOT Ea core bt eocdene we cde sccyececétbeasecnitc, ote 30

Elledge v. Florida

8 BO RY Sen pe eeraienr y P e m ap ee Py’ 10, 13, 15, 28

Ellis v. State

Ge reas, BOO Saino bcc dv dasa vheukas inde thatch 36, 37

Enmund y. Flonda

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Estelle v. Gamble

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Ex parte Grossman

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Ex parte Wells

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Ford v. Wainwriel

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Furman v. Georgia

SEES. « se Sic Gace Bnkcbikidabebeudodedaltteeltee 11, 14,21, 22

Goode v. State

SE ee ees TOUS i. bo knot ivcraedecs ceswanskedscheucans sane 9

Gregg v. Georgia

rs QUE ¢.) So5 G2 sh we che baetse adios de einen 11, 12,13

Grossman v. State

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Harmelin v. Michi

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Hill v. State

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Hill v. State

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Hootman vy. State :

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Hudson v. McMillan

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In re Kemmler

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In re Medley

SCRE aaah ne déwks debe dsedeuneUh cabinets tn neshant 20, 22

Jackson v. State

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Justus v. Florida

nb a pbedhedbeawhctisschucead table’ 36, 38

Kepner v. United States

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Knight v. Dugger

nn sess ticecetnencalsacibunaeehie 9

Klokok v. State

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Lackey v. Texas

SAD Sn Sadocudchthe cet cdstibercas 10, 11, 12, 13, 15, 20, 21, 25

Lynce v. Mathis

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vi

McKenzie v. Day

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McKenzie v. D

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Mill Florid

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Mill

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People v. Anderson

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Sing!

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Pratt & M ) ' | of Jamai

2 AC 1, 4 All ER 769, 3 WLR 995 (Privy Council 1993) ......... 15, 16, 22, 23, 24, 25

Purdy v. State

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Richard )

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Ril , ' | of Jamai

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Robi Californi

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Sori United Kined

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Stafford v. State

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vii

Stafford v. Ward

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Stanford v. Kentucky

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State v. Correll

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State v. Dixon

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State v. Jordan

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State v. Matute

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State v. Schackart

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State v. Smith

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Sulli Wainwrig!

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Trop v. Dulles

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Trotter v. State

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Tumer vy. Jabe

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viii

Weaver v. Graham

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Weems vy. United States

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White v. Johnson

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TREATISES & ARTICLES

Blackstone’s Commentaries on the Laws of England (1769), Book IV

David Von Drehle, Among the Lowest of the Dead (1995) ..............000-

Meg Laughlin, Locked Alone in X Wing, The Miami Herald, May 30, 1999

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1998

THOMAS KNIGHT,

N/K/A ASKARI ABDULLAH MUHAMMAD,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

Petitioner Thomas Knight, now known as Askari Abdullah Muhammad’, prays that

a writ of certiorari issue to review the judgment of the Supreme Court of Florida affirming

the sentences of death in this case.

OPINION BELOW

The opinion of the Supreme Court of Florida is reported as Knight v. State, 721 So.

2d 287 (Fla. 1998), rehearing denied and revised opinion issued, 24 Fla. L. Weekly S135

'Petitioner’s name was legally changed in 1982. In this petition he will be referred

to as Mr. Muhammad, as he was in the federal court and in the state trial court on

resentencing.

(Fla. March 11, 1999). The original opinion is reproduced in the Appendix to this petition

as A-| through A-16. The order denying rehearing is reproduced at A-17. The revised

opinion is reproduced at A-18 through A-38.

JURISDICTION

The judgment of the Florida Supreme Court was entered on November 12, 1998. A

petition for rehearing was timely filed and was denied on March 11, 1999. This Court’s

jurisdiction is invoked pursuant to 28 U.S.C. §1257(a), the petitioner having asserted below

and asserting herein deprivation of rights secured by the United States Constitution.

CONSTITUTIONAL PROVISIONS AT ISSUE

|. This case involves the Eighth Amendment to the United States Constitution, which

forbids the infliction of “cruel and unusual punishments."

2. It also involves the Fourteenth Amendment to the United States Constitution,

which provides in pertinent part:

[N]or shall any state deprive any person of life . . . without due

process of law ....

3. This case also involves Article I, Section 10 of the United States Constitution,

which provides in pertinent part:

No state shall . . . pass any . . . ex post facto law ....

STATEMENT OF THE CASE

The petitioner was originally sentenced to death on April 21, 1975 for first-degree

murders committed in July 1974. His convictions and death sentences were affirmed by the

Florida Supreme Court on automatic direct appeal, Knight v. State, 338 So. 2d 201 (Fla.

1976), and post-conviction relief was denied on state collateral review, Knight v. State, 394

So. 2d 997 (Fla. 1981); Muhammad v. State, 426 So. 2d 533 (Fla. 1982). He was successful,

however, in his attempt to vindicate his federal constitutional rights on federal habeas review.

In Knight v. Dugger, 863 F. 2d 705 (11th Cir. 1988) (rehearing denied on August 23, 1989;

mandate issued thereafter), the Eleventh Circuit Court of Appeals agreed that the Florida

courts had imposed the death sentence in violation of the United States Constitution. After

a new sentencing proceeding, he was again sentenced to death, on February 20, 1996. The

Florida Supreme Court affirmed on mandatory, direct appeal on November 12, 1998.

Petitioner’s motion for rehearing and the state’s motion for clarification were denied, and a

revised opinion issued, on March 11, 1999.

Atresentencing, evidence was presented regarding Mr. Muhammad’s background, the

circumstances of the crimes, and his confinement on death row. His childhood was one of

poverty, hunger, and brutal beatings. Much of it was spent in state custody. At age nine,

after an arrest for theft, he was committed to Florida School for Boys, the youngest child ever

sent to that institution, where the children were more typically fifteen or sixteen years old.

At age fifteen he was sent to adult prison for three-and-a-half years on a conviction for

burglary. At age nineteen he was committed to a state mental hospital. As summarized by

the Florida Supreme Court:

Numerous witnesses testified on Knight’s behalf. They

presented testimony that Knight, the second oldest of nine

children, came from a family with a history of mental illness and

neurological problems. Knight’s sisters Mary Ann, Doris, and

Edna, as well as Deputy Patrick Duval, detailed the poverty,

hunger, and brutal beatings Knight had sustained during his

childhood in Fort Pierce. Knight’s father was an alcoholic who

had stopped providing for his family in 1960. Knight's father

beat him often and with brutality. The Knight children often

went without food or clothing. In June 1960, Knight’s father

raped Knight’s sister Mary Ann. Knight, nine years old at the

time, either witnessed his sister’s rape and tried to stop it, or was

told about it by Mary Ann immediately thereafter.

Knight was first arrested at age nine for theft. When he

was arrested on the same charge several months later, he was

committed to the Florida School for Boys, the youngest child

ever sent there. He was continually in trouble thereafter, until

at age fifteen he was sent to state prison on a burglary

conviction. At age nineteen, he was committed to the Northeast

State Hospital where he was diagnosed with drug and poison

intoxication, excessive drinking, and paranoid personality.

A-21.

Before his release from the hospital, he was evaluated by Dr. Arthur Wells, who

reported that there was a good chance the patient would become psychotic again, "perhaps

being dangerous to others." (R. 356, T. 2738). Out-patient treatment was recommended, but

was not likely to be available in the patient’s community. Accordingly, the prognosis was

"somewhat guarded." (R. 356; T. 2740).

After his release from the hospital, petitioner was convicted of attempted grand

larceny and sentenced to two-and-a-half years in prison. While in prison, he was given the

psychotropic drug Thorazine, as he had been at the hospital. (T. 2527-28). He was released

in 1972 and went to live with his sister in Miami.

On July 17, 1974, he abducted Sydney and Lillian Gans and forced them to drive to

a bank in downtown Miami to get $50,000. While inside the bank, Mr. Gans reported the

abduction, and FBI and local police were alerted. Mr. Gans returned to the car with the

money. The car then drove to south Dade County, being kept under surveillance by

numerous law enforcement officers. The car went behind a ridge which ran alongside a

canal. Shortly thereafter, Mr. and Mrs. Gans were found shot to death. Each had been shot

once through the neck, from the rear seat of the vehicle. Death had been instantaneous or

nearly instantaneous. After a massive manhunt, petitioner was apprehended in a weeded area

about 2,000 feet from the vehicle.

On April 21, 1975, the petitioner was convicted on two counts of first-degree murder

and sentenced to death. He was placed on death row in Florida State Prison. The

convictions and sentences were affirmed on direct appeal in 1976.

On October 12, 1980, while his clemency petition and post-conviction appeal were

still pending, Mr. Muhammad fatally stabbed a prison guard, Officer Richard Burke. Earlier

in the day Mr. Muhammad was told that because he had not shaved he could not receive a

scheduled visit from his mother. Although he had been issued a pass which, for medical

reasons, allowed him to clip his beard short instead of shaving, his pass had expired. That

evening, while he was being escorted to the shower, he stabbed Officer Burke with a

sharpened serving spoor. Another guard witnessed the attack, but was unable to intervene

5

in time. (T. 2318-19).

The lawyers appointed to represent Mr. Muhammad at his trial for the murder of

Officer Burke “were concerned about his mental state from the start." Muhammad y. State,

494 So. 2d 969, 970 (Fla. 1986). They intended to present an insanity defense, and moved

for a competency hearing, but Mr. Muhammad would not cooperate with doctors appointed

to determine his competency. Id. at 971. Appointed counsel was allowed to withdraw, and

the court granted Mr. Muhammad’s motion to proceed pro se. Id. at 971-72. His defense at

trial consisted solely of holding the state to its burden of proof. Id. at 972. He was convicted

and sentenced to death. The conviction and death sentence were affirmed on direct appeal.

His post-conviction appeal in that case is still pending.

After the Burke homicide, Mr. Muhammad was placed in a special isolation cell in

the area of the prison (then known as Q Wing, and now called X Wing) where the electric

chair is located. He remained in isolation for twelve years, from 1980 to 1992. Normally,

death-row inmates are kept in single-man cells, equipped with a toilet, sink, and a small

black-and-white television. They are able to communicate through the bars with other

inmates on the same corridor, and are allowed two hours in the yard each week. (T. 2256,

2295, 3536). X Wing is different. The isolation there is total. There are no yard privileges

and no television. (T. 2296, 3547). There is no view to a corridor. The cell is completely

enclosed. (T. 3536).

Mr. Muhammad made repeated efforts, through the prison grievance system, to be

6

transferred from the complete isolation of X Wing back to normal death row. However, he

continued to accumulate disciplinary reports, mostly having to do with his refusal to respond

to the name Thomas Knight. He had converted to Islam and in 1982 his name was legally

changed to Askari Abdullah Muhammad (T. 3533). The prison, however, would not

recognize the change of name. (T. 2292-93). Eventually a compromise was reached under

which, at master count, he would give his prison number, followed by his Islamic name. (T.

3534-35). He finally succeeded in being returned to normal death-row status in 1992. (T.

2296, 2314-15, 3536).

Meanwhile, in 1989, the Eleventh Circuit Court of Appeals reversed the death

sentences imposed for the murders of Mr. and Mrs. Gans and remanded for resentencing.

The public defender appointed to represent Mr. Muhammad withdrew because of a conflict

of interest, and other counsel was appointed. Competency hearings were held in 1992 and

1994. There was interlocutory appellate litigation concerning the payment of defense expert

witnesses. Continuances were granted to both the state and the defense, because of

scheduling conflicts and other reasons. During this time, except when brought down to

Miami for competency hearings, Mr. Muhammad remained on death row.

The resentencing hearing took place in January and February 1996. The jury

_ recommended death by a vote of 9 to 3. On February 20, 1996, the judge sentenced Mr.

Muhammad to death. An automatic direct appeal was taken to the Supreme Court of Florida.

On appeal, petitioner asserted that application of the statutory aggravating

7

circumstance that the capital offense had been cold, calculated and premeditated ("CCP") to

the crimes he committed in 1974 violated the constitutional prohibition against ex post facto

laws because the legislature did not enact that aggravator until 1979. The Florida Supreme

Court rejected this claim, stating that "we have previously determined that application of the

CCP aggravator in this situation is not an ex post facto violation. Combs v. State, 403 So. 2d

418 (Fla. 1981)." A-29.

Petitioner also claimed that to execute him after he had endured two decades on death

row would constitute unconstitutionally cruel and unusual punishment. The Florida Supreme

Court rejected this point on appeal, stating, at A-34:

Finally, Knight claims that to execute him after he has

already endured more than two decades on death row is

unconstitutionally cruel and unusual punishment. He also

argues that Florida has forfeited its right to execute Knight

under binding norms of international law. Although Knight

makes an interesting argument, we find it lacks merit. As the

State points out, no federal or state courts have accepted

Knight’s argument that a prolonged stay on death row

constitutes cruel and unusual punishment, especially where both

parties bear responsibility for the long delay. See, e.g., White v.

Johnson, 79 F.3d 432 (Sth Cir. 1996); State v. Smith, 931 P.2d

1272 (Mont. 1996). We also note that the Arizona Supreme

Court recently rejected this precise claim. See State v.

Schackart, 947 P.2d 315,336 (Ariz. 1997) (finding "no evidence

that Arizona has set up a scheme prolonging incarceration in

order to torture inmates prior to their execution", cert. denied,

No. 97-9613 (U.S. Oct. 5, 1998). Second, we also consider that

irrespective of the status of this case, Knight has been and will

remain incarcerated on death row for his 1980 murder of Officer

Burke until that case is finalized. We similarly reject Knight’s

claim under international law.

es

WHY THE WRIT SHOULD BE GRANTED

L.

EXECUTING THE PETITIONER NEARLY A GENERATION

AFTER HE WAS ORIGINALLY CONVICTED AND

SENTENCED TO DEATH WOULD VIOLATE THE

PROHIBITION AGAINST CRUEL AND UNUSUAL

PUNISHMENTS OF THE EIGHTH AMENDMENT TO THE

UNITED STATES CONSTITUTION.

A. Introduction and Summary.

Mr. Muhammad was convicted of first-degree murder and sentenced to death on

April 21, 1975. Fourteen-and-a-half years later, the federal circuit court of appeals held that

the death sentence had been imposed in violation of the United States Constitution. Knight

v. Dugger, 863 F.2d 705 (11th Cir. 1988) (rehearing denied August 23, 1989; mandate

issued thereafter). The state again sought the death penalty, and obtained it in February

1996. Automatic, mandatory appellate review followed.’ The Florida Supreme Court

affirmed in November 1998, deny 2 rehearing in March 1999.

Thus, it has been more than twenty-four years since Mr. Muhammad was convicted

and placed on death row. If execution ever takes place, it will come nearly a generation after

*Florida’s death penalty statute provides for “automatic review" by the Florida

Supreme Court, § 921.141(4), Fla. Stat. Because the statute establishes a duty to examine

every case in which the death sentence is imposed, the Florida Supreme Court has denied

death-sentenced prisoners’ requests to dismiss their appeals. See Goode v. State, 365 So.

2d 381, 384 (Fla. 1978); Klokok v. State, 589 So. 2d 219, 221-22 (Fla. 1991); see also

Hill v. State, 656 So. 2d 1271, 1272 (Fla. 1995) (denying prisoner’s motion to proceed

pro se on appeal).

entry of the judgment of conviction and original sentence of death. This extraordinarily long

time between conviction and execution of sentence is the result of the state’s failure to afford

Mr. Muhammad a constitutional capital sentencing hearing back in April 1975, a failure

which made necessary a new sentencing hearing and subsequent automatic appeal. The

delay must therefore be attributed to the state.

To execute Mr. Muhammad after this extraordinary delay would constitute cruel and

unusual punishment in violation of the Eighth Amendment. Execution after such an

extended period of time does not serve the constitutionally-permissible purposes of capital

punishment, it is contrary to the intent of the Framers, and it would have been considered

cruel and unusual at common law. See Lackey v. Texas, 115 S.Ct. 1421 (1995) (memoradum

of Justice Stevens respecting the denial of certioari); Elledge v. Florida, 1 19 S.Ct. 366 (1998)

(Breyer, J., dissenting). Moreover, to execute someone after holding him for more than two

decades in the agonizing suspense and close confinement reserved for those who are about

to die is an inhuman, degrading punishment, and a denial of the fundamental human dignity

that the Eighth Amendment is intended to safeguard. Where, as here, the delay is the result

of the state’s initial failure to give the defendant the constitutional hearing to which he was

entitled, it cannot be considered incidental to the processing of appeals. It is unnecessary and

Despite the hope expressed by Justice Stevens several years ago, Lackey, 115 S.Ct.

at 1421, the lower federal courts have not served as "laboratories" to further study this issue,

and instead have foreclosed relief on procedural grounds. This case presents no procedural

obstacles to ruling on the merits: The claim was clearly raised in the tnal court and on direct

appeal, and is here on petition for writ of certiorari after direct appeal. The issue remains

substantial and important, and should be resolved.

B. —_ Execution After Long Delay Does Not Serve the Constitutionally-Permiss.:ble

Purposes of Capital Punishment and Is Contrary to the Intent of the Framers.

This Court’s decision in Gregg v. Georgia, 428 U.S. 153 (1976), holding that a

sentence of death for the crime of murder is not a per se violation of the Eighth and

Fourteenth Amendments, was based largely on the grounds that the death penalty was

considered permissible by the Framers, and might serve the purposes of retribution and

deterrence. Id. at 177, 183; Lackey, 115 S.Ct. at 1421. Neither ground justifies the execution

of a person originally convicted and condemned to die over two decades ago.

Execution of the death penalty when it no longer realistically furthers the legitimate

penological purposes it is deemed to serve, would be a “pointless and needless extinction

of life” and, therefore, “patently excessive and cruel and unusual punishment violative of

the Eighth Amendment.” Furman v. Georgia, 408 U.S. 238, 312 (1972) (White, J.,

concurring). As Justice White reasoned in Furman:

The imposition and execution of the death penalty are obviously

cruel in the dictionary sense. But the penalty has not been

considered cruel and unusual punishment in the constitutional

sense because it was thought justified by the social ends it was

deemed to serve. At the moment that it ceases realistically to

further these purposes, however, the emerging question is

whether its imposition in such circumstances would violate the

Eighth Amendment. It is my view that it would, for its

imposition would then be the pointless and needless extinction

of life with only marginal contributions to any discernible social

or public purposes. A penalty with such negligible returns to

the State would be patently excessive and crue! and unusual

punishment violative of the Eighth Amendment.

408 U.S. at 312-13. See also Gregg, 428 U.S. at 183 (joirt opinion of Stewart, Powell, &

Stevens, JJ.) (“[{T]}he sanction imposed cannot be so totally without penological justification

that it results in the gratuitous infliction of suffering”); Coker v. Georgia, 433 U.S. 584, 592

(1977) (plurality ) (under Gregg, a punishment is excessive and unconstitutional if it “makes

no measurable contribution to acceptable goals of punishment and hence is nothing more

than the purposeless and needless imposition of pain and suffering”).

This Court has recognized that the two constitutionally legitimate purposes justifying

capital punishment are retribution and deterrence. Gregg, 428 U.S. at 183. Both of those

purposes have already been satisfied by the twenty-four years Mr. Muhammad has deen held

in close confinement, alternating between hope and despair at the prospect of his eventual

execution; and neither of those purposes would be measurably served by the additional step

of executing him nearly a generation after his conviction. Execution after a delay of this

magnitude would be a pointless and needless extinction of life which would not serve the

a patently excessive and cruel and unusual punishment violative of the Eighth Amendment.

See Lackey, 115 S.Ct. at 1421-22 (execution after 17-year delay would arguably violate

12

Eighth Amendment because purposcs of retribution and deterrence would arguably not be

served); Elledge, 119 S.Ct. at (Breyer, J., dissenting) (“After such a delay, an execution

may well cease to serve the legitimate penological purposes that otherwise provide a

The additional deterrent effect of executing Mr. Muhammad now, or at any time in

the future, compared to a sentence of twenty-four years on death row followed by continued

incarceration for life, would be minimal at test. See Lackey, 115 S.Ct. at 1421-22 (“[T}he

additional deterrent effect from an actual execution now, on the one hand, as compared to

17 years on death row followed by the prisoner’s continued incarceration for life, on the

other, seems minimal.”); Coleman vy. Balkcom. 451 U.S. 949, 952 (1981) (Stevens, J.,

concurring in denial of certiorari) (“The deterrent value of any punishment is, of course,

related to the promptness with which it is inflicted... . [T]he deterrent value of

incarceration during that period of uncertainty [on death row] may well be comparable to

the consequences of the ultimate step itself.”).

The need to exact retribution has already been satisfied by the twenty-four years Mr.

Muhammad has spent on death row. See Lackey, 115 S.Ct. at 1421 (Stevens, J.) (after 17

years on death row, “the acceptable state interest in retribution has arguably been satisfied

by the severe punishment already inflicted”).

Moreover, execution after such protracted delay would not serve the purpose of

legitimate retribution. In Gregg, 428 U.S. at 183, this Court explained that retribution is a

13

constitutionally-permissible reason for applying the death penalty because the “expression

of society's moral outrage at particularly offensive conduct” is an essential function “in an

ordered society that asks its citizens to rely on legal processes rather than self help to

vindicate their wrongs,” quoting with approval the following observations of Justice

Stewart:

The instinct for retribution is part of the nature of man, and

channeling that instinct in the administration of criminal justice

serves an important purpose in promoting the stability of a

society governed by law. When people begin to believe that

organized society is unwilling or unable to impose upon

criminal offenders the punishment they “deserve,” then there

are sown the seeds of anarchy -- of self-help, vigilante justice,

and lynch law.

Furman, 408 U.S. at 308 (Stewart, J., concurring).

The need to avoid sowing the “seeds of anarchy,” 408 U.S. at 308, cannot reasonably

justify executing someone nearly a generation after he was convicted and sentenced to die.

So belated an expression of outrage could not possibly serve to dissuade from the path of

dissolution a society disposed to self-help, vigilante justice, and lynch law. See Coleman,

451 U.S. at 960 (Rehnquist, J., dissenting from denial of certiorari) (“[t}here can be little

doubt that delay in the enforcement of capital punishment frustrates the purpose of

retribution.”).

At this point, execution would be nothing more than a gratuitous display of brutality,

serving to exact, not retribution, but merely vengeance, in violation of the Eighth

Amendment. See Ford v. Wainwright, 477 U.S. 399, 410 (1987) (Eighth Amendment

14

protects “the dignity of society itself from the barbarity of exacting mindless vengeance’):

see also Blackstone’s Commentaries on the Laws of England (1769), Book IV, Chapter 32.

page 397 (a delayed execution “affects the minds of the spectators rather as a terrible sight,

than as the necessary consequence of transgression”).

The execution of a condemned prisoner after inordinate delay attributable to state

actors not only fails to serve any constitutionally-permissible purpose of capital punishment,

it is also contrary to the intent of the Framers. As Justice Stevens observed, it cannot be

justified by reference to the practice of 1789, when such delays seldom, if ever, occurred:

Lackey, 115 S.Ct. at 1421; see also F

1, 4 All ER 769, 773, (Privy Council 1993) (en banc) (“The death penalty in the United

Kingdom has always been carried out expeditiously after sentence, within a matter of weeks

or in the event of an appeal even to the House of Lords within a matter of months. Delays

in terms of years are unheard of.”) (emphasis added); id., 4 All ER at 775 (noting the

“common law practice that execution followed as swiftly as practical after sentence”’).

“There is no doubt” that Section 10 of the English Bill of Rights of 1689 “is the

antecedent of the cruel-and-unusual punishment clause of our Eighth Amendment.”

Harmelin v. Michigan, 501 U.S. 957, 966 (1991) (opinion of Scalia, J.); Elledge, 119 S.Ct.

at 366 (Breyer, J., dissenting from denial of certiorari).

And, as this Court has long held, the content of English criminal jurisprudence in the

eighteenth century is directly relevant to determining what the framers of our constitution

15

and Bill of Rights intended in drafting the various provisions. See Ex parte Grossman, 267

U.S. 87, 108-9(1925)(“The language of the Constitution cannot be interpreted safely except

by reference to the common law and to British institutions as they were when the instrument

was framed and adopted.”); Kepner v. United States, 195 U.S. 100, 125-26 (1904) (“In

ascertaining the meaning of the phrase taken from the B:!i of Rights it must be construed

with reference to the common law from which it was taken.”); Ex parte Wells, 59 U.S. 307,

311 (1856) (the word “pardon” must be given “the same meaning as prevailed here and in

England at the time it found a place in the Constitution”).

There can also be no doubt that prolonged incarceration under sentence of death

would have been considered cruel and unusual at English common law, and, had it occurred,

would have been remedied by commutation of the sentence to imprisonment. See Pratt, 4 All

ER at 774. In Pratt, the Privy Council surveyed the history of English common law

regarding the subject of lengthy imprisonment before execution, and concluded that this

practice was not condoned at common law, stating:

It is difficult to envisage any circumstance in which in England

a condemned man would have been kept in prison for years

awaiting execution. But if such a situation had been brought to

the attention of the court their Lordships do not doubt that the

judges would have stayed the execution to enable the

prerogative of mercy to be exercised and the sentence commuted

to one of life imprisonment.

Pratt & Morgan, 4All ER at 774. See also Riley v. Attorney General of Jamaica, | AC 719,

734-25, 3 All ER 469, 480-81 (Privy Council 1983) (Lord Scarman, dissenting, joined by

16

Lord Brightman) (arguing that "execution after inordinate delay would have infringed the

prohibition against cruel and unusual punishment to be found in Section | 0 of the Bill of

Rights of 1689," and concluding that “the jurisprudence of the civilised world, much of

which is derived from common law principles and the prohibition against cruel and unusual

punishments in the English Bill of Rights, has recognised and acknowledged that prolonged

delay in executing a sentence of death can make the punishment when it comes inhuman and

degrading").

C. Execution Nearly a Generation After the Prisoner’s Original Conviction and

Sentence of Death is Cruel, Degrading, and a Violation of the Human Dignity

the Eighth Amendment is Intended to Safeguard.

Mr. Muhammad has been on death row for more than twenty-four years. When he

was originally sentenced to death he was twenty-four years old. He is now forty eight. He

has spent half of his entire life, and nearly all his adult life, in the close confinement reserved

for those condemned to die. Death-row inmates in Florida are kept in small cells “two paces

wide and three paces deep.” David Von Drehle, Among the Lowest of the Dead (1995), 126.

They are not given employment and are kept in their cells. They are allowed only two hours

per week in the “yard.” (T. 2256). For twelve years Mr. Muhammad was denied even this.

He was held in a special isolation cell in what is now known as X Wing. There the cells are

smaller and the isolation is total. (T. 2297). The prisoner can neither see nor hear anything

outside his cell. There are no windows; the door is solid steel. There is no televison,

nothing to read but the legal materials of the inmate’s own case, no yard privileges, no air

17

conditioning and no breeze. (T. 2296, 3536, 3547); see Meg Laughlin, Locked Alone in X_

Wing, The Miami Herald, May 30, 1999, at 1L to 3L (describing conditions on X Wing).

X Wing is where the electric chair is located, and Mr. Muhammad will be held there again

for a month before his execution. Id, at 3L.’

During the time that Mr. Muhammad has been on death row, Florida has electrocuted

forty-three persons at Florida State Prison. The threat of execution is very real, and can only

become more so with each passing year. As Mr. Muhammad stated to the judge:

For the last 22 years I have been on death row. Thirty-

seven people have been executed while I have been on death

row so I know it’s no joke. It’s no show. It’s no game for me.

This is serious. I know it’s serious.

(T. 365). The focus on death is pervasive. The condemned know in detail the manner in

which they will die. Execution procedure is a “staple” of conversation on Florida’s death

row. Von Drehle at 289 (“[{T]}he vision of their final moments is one they rehearse over and

over in their minds. . . . They experience it again and again and again, in daydreams and

nightmares, and they alter every variable, ponder every option.”). To be kept for decades

in such a state, with the mind focused on death, not knowing whether to hope or despair,

*The purpose, according to the article, is to ensure a quiet execution:

David Lehr, a former FSP assistant superintendant, .. .

explained that Death Row inmates are put on X Wing a month

before their scheduled execution to complete the process of

breaking them down before they are strapped into the electric

chair. “This way, they go quietly,” he said.

18

neither adjusting to life nor preparing for death, is to be deprived of any human existence.

The Eighth Amendment “embodies ‘broad and idealistic concepts of dignity, civilized

standards, humanity and decency’” against which forms of punishment must be measured.

Estelle v. Gamble, 429 U.S. 97, 102 (1976) (citation omitted). It stands to safeguard

“nothing less than the dignity of man,” Trop v. Dulles, 356 U.S. 86, 100 (1958). and “must

draw its meaning from the evolving standards of decency that mark the progress of a

maturing society,” id. at 101. As the concepts of dignity and civility evolve, so too do the

limits of what is considered cruel and unusual. Such concepts of dignity and civility include

international practices. See, e.g., Stanford v. Kentucky, 492 U.S. 361, 369 (1989); Coker v._

Georgia, 433 U.S. 584 (1977); Enmund v. Florida, 458 U.S. 782 (1982).

To execute someone after keeping him isolated in a small cell for more than two

decades, in conditions designed for those who are soon to die, with nothing to do but

agonize about his fate, is not only cruel, it is degrading, inhuman, and a violation of the

fundamental human dignity that the Eighth Amendment stands to protect. Such prolonged

incarceration under the shadow of impending execution (which may or may not come)

constitutes additional punishment, far beyond the “mere extinguishment of life” inherent in

a death sentence, and is cruel both in a dictionary and a constitutional sense. See In re

Kemmler, 136 U.S. 436, 447 (1890) (“Punishments are cruel when they involve .. . a

lingering death . . . something more than the mere extinguishment of life.”).

While close confinement and mental anguish at the prospect of a violent, humiliating

19

death may be inevitable concomitants cf the death penalty, the prolongation of these

conditions for decades is not. This is a new punishment, different in kind from the “short

but awful” interval between sentence and execution experienced by the condemned prisoner

in Blackstone’s day. Blackstone’s Commentaries, Book IV, Chapter 14, page 202. This

Court recognized over a century ago that the pain and mental anxiety caused by near-solitary

confinement and uncertainty as to when the execution will take place are constitutionally-

significant additions to the punishment inflicted on a person condemned to death. See In re_

Medley, 134 U.S. 160 (1890) (setting free a state prisoner condemned to death because

solitary confinement and a secret time of execution were additional punishments which

violated the constitution’s prohibition of ex post facto laws). This Court explained that

solitary confinement in “a place where imprisonment always implies disgrace,” 134 U.S. at

169, was “an additional punishment of the most important and painful character,” id. at 171,

and that “when a prisoner sentenced by a court to death is confined in the penitentiary

awaiting the execution of the sentence, one of the most horrible feelings to which he can be

subjected during that time is the uncertainty during the whole of it, which may exist for the

period of four weeks, as to the precise time when his execution shall take place.” Id. at 172.

The prisoner’s uncertainty as to the time execution “must be accompanied by an immense

mental anxiety amounting to a great increase of the offender’s punishment.” Id. at !72.

As Justice Stevens observed in Lackey, if the Court accurately described the effect

of uncertainty in Medley, which involved a period of four weeks, “tha. description should

20

apply with even greater force in the case of delays that last for many years.” Lackey, 115

S.Ct. at 1421. The inhereat torturousness and cruelty of a prolonged stay on death row has

been recognized by numerous jurists and legal commentators. E.g., Coleman, 451 U.S. at

952 (Stevens, J., concurring in denial of certiorari) (the mental pain suffered by a

condemned prisoner awaiting execution is “a significant form of punishment” that “may well

be comparable to the consequences of the ultimate step itself”); Sullivan v. Wainwright, 464

U.S. 109, 112 (1983) (Burger, C.J., concurring) (“The argument so often advanced by the

dissenters that capital punishment is cruel and unusual is dwarfed by the cruelty of 10 years

on death row inflicted upon this guilty defendant by his lawyers seeking to turn the

administration of justice into the sporting contest that Roscoe Pound denounced three-

quarters of a century ago.”); Furman, 408 U.S. at 288-89 (Brennan, J., concurring) (“[WJe

know that mental pain is an inseparable part of our practice of punishing criminals by death,

for the prospect of pending execution extracts a frightful toll during the inevitable long wait

between the imposition of sentence and the actual infliction of death”); People v. Anderson,

493 P.2d 880 (Cal. 1972) (“The cruelty of capital punishment lies not only in the execution

itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy

imprisonment prior to the execution during which the judicial and administrative procedures

essential to due process of law are carried out. Penologists and medical experts agree that

the [protracted] process of carrying out a verdict of death is often so degrading and

21

brutalizing to the human spirit as to constitute psychological torture.”).*

Medley involved the prohibition of ex post facto laws, rather than the Eighth

Amendment, which at that time did not apply to the states. However, since Mediey was

decided, the cruel and unusual! punishments clause of the Eighth Amendment has been held

applicable to the states, Robinson v. California, 370 U.S. 660 (1962), and it has been

recognized that the infliction of extreme mental anguish can be a form of unconstitutional

torture, see, e.g.. Trop v. Dulles, 356 U.S. at 102 (expatriation as penalty for desertion

“subjects the individual to a fate of ever increasing fear and distress”); Hudson v. McMillan,

503 U.S. 1, 16 (1992) (Blackmun, J., concurring) (“I am unaware of any precedent of this

Court to the effect that psychological pain is not cognizable for constitutional purposes

[under the Eighth Amendment]. If anything, our precedent is to the contrary.”); Furman,

408 U.S. at 271-72 (Brennan, J., concurring) (“[T]he Framers also knew ‘that there could

be exercises of cruelty by laws other than those which inflicted bodily pain or mutilation.””),

quoting Weems v. United States, 217 U.S. 349,372 (1910).

Evolving concepts of civility and dignity, including international practices, require

the conclusion that execution after two decades on death row is cruel and unusual

“See also Suffolk County District Attorney v. Watson, 411 N.E.2d 1274, 1289-95

(Mass. 1980) (Liacos, J., concm.*~g) (describing the psychological pain and torture that

the condemned person experiences: while awaiting execution); id, at 1287 (Braucher, J.,

concurring) (arguing that capital pt nishment is unconstitutional under Massachusetts

Constitution in part because “it wi] be carried out only after agonizing months and years

of uncertainty”).

22

punishment violative of the Eighth Amendment. As Lords Scarman and Brightman

observed sixteen years ago, “[i}t is no exaggeration . . . to say that the jurisprudence of the

civilised world, much of which is derived from common law principles and the prohibition

against cruel and unusual punishments in the English Bill of Rights, has recognised and

acknowledged that prolonged delay in executing a sentence of death can make the

punishment when it comes inhuman and degrading.” Riley v. Attorney Genera! of Jamaica,

1 AC 719, 3 All ER 469 (Privy Council 1983) (Lord Scarman, dissenting, joined by Lord

Brightmaa). That statement is even truer today. See Pratt, 4 All ER at 784-87 (discussing

cases and concluding that to execute a prisoner after holding him on death row for fourteen

years constitutes “torture,” and “inhuman” and “degrading” punishment, within the meaning -

of section 17(1) of Jamaica’s constitution): Soering v. United Kingdom, | 1 Eur. Hum. Rts.

Rep. 439 (1989) (European Court of Human Rights refused to extradite a Gcrman national

from the UK to Virginia to face capital murder charges because anticipated time that he

would have to spend on death row if sentenced to death would constitute torture or inhuman

or degrading treatment or punishment within the meaning of Article 3 of the Convention for

the Protection of Human Rights and Fundamental Freedoms); Catholic Comm'n for Justice

& Peace in Zimbabwe v. Attorney General, No. S.C. 73/93 (Zimbabwe, 1993) (reported in

14 Hum.Rts.L.J. 323 (1993) (vacating death sentences because execution after inordinate

delay would contravene constitutional provision that “[no] person shall be subjected to

torture or to inhuman or degrading punishment or other such treatment”).

23

These decisions do not rest simply on the suffering inflicted by prolonged

after sentencing; it is generally recognized that there must be a reasonable time for appeal.

At some point, however, there must be a resolution, and “[i}n the last resort the courts have

to accept the responsibility of saying whether the threshold has been passed in any given

case,” rendering further incarceration under sentence of death, or execution, no longer

acceptable. Pratt, 4 All ER at 787.

In 1993, the Privy Council of the United Kingdom held, in a unanimous, en banc

decision, that to execute a prisoner after holding him on Jamaica’s death row for fourteen

years constitutes “torture,” and “inhuman” and “degrading” punishment, within the meaning

of section 17(1) of Jamaica’s constitution. Although it had no difficulty concluding that the

men had suffered great anguish of mind, or that execution after holding them in an agony

of suspense for so many years would be an inhuman act,’ the Privy Council also recognized

*The prisoners had been on death row for fourteen years, and on three occasions

death warrants had been read to them and they had been removed “to the condemned

cells immediately adjacent to the gallows.” The Privy Council observed:

The statement of these bare facts is sufficient to bring home

to the mind of any person of normal sensitivity and

compassion the agony of mind that these men must have

suffered as they have alternated between hope and despair in

the 14 years that they have been in prison facing the gallows.

It is unnecessary to refer to the evidence describing the

psychological impact of this experience, for it only reveals

that which is to be expected.

24

that there must be a “reasonable” time for appeal, and that delay “due entirely to the fault of

the accused such as an escape from custody or frivolous and time wasting resort to legal

procedures which amount to an abuse of process” should not preclude execution, since the

accused cannot be permitted to use “illegitimate means to escape the punishment inflicted

upon him in the interest of protecting society against crime,” Pratt, 4 All ER at 784. The

difficult question was:

whether the delay occasioned by the legitimate resort of the

accused to all available appellate procedures should be taken

into account, or whether it is only delay that can be attributed to

the shortcomings of the state that should be taken into account.

To decide this question, the Privy Council reviewed its own past decisions, as well

as decisions of other nations, and of the European Court of Human Rights. In particular, it

considered the view, which it believed prevailed in some states of the United States, that “it

cannot be inhuman or degrading to allow an accused every opportunity to prolong his life

by resort to appellate procedures however extended may be the eventual time between

4 All ER at 772. It further observed that,

There is an instinctive revulsion against the prospect cf

hanging a man after he has been held under sentence of death

for many years. What gives rise to this instinctive revulsion?

The answer can only be our humanity: we regard it as an

inhuman act to keep a man facing the agony of execution

over a long extended period of time.

4 All ER at 784.

sentence and execution.” Pratt, 4 All ER at 784. It concluded that execution must follow “as

swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration

of reprieve” and that a delay of almost fourteen years was “wholly unacceptable.” Id. at 787.

As stated by the Privy Council:

To execute these men now after holding them in custody

in an agony of suspense for so many years would be inhuman

punishment within the meaning of s 17(1) [of Jamaica's

Constitution]. In the last resort the courts have to accept the

responsibility of saying whether the threshold has been passed

in any given case and there may be difficult borderline decisions

to be made. This, however, is not a borderline case. The [14-

year] delay in this case is wholly unacceptable and this appeal

must be allowed.

Pratt, 4 All ER at 787.

In the United States, the issue remains a substantial, unresolved question, as Justices

Stevens and Breyer pointed out in Lackey four years ago. In Lackey, Justice Stevens

observed that the question of whether executing a prisoner after prolonged incarceration on

death row violates the Eighth Amendment was novel, important, and “not without

foundation,” 115 S.Ct. at 1421, but concluded that in view of the claim’s "legal complexity

and potential for far-reaching consequences," it should receive further study in the

“laboratories” of the state and federal courts. Id. at 1422.

Contrary to the hope of Justice Stevens the lower federal courts have not served as a

laboratory to further study this issue. Over the strenuous dissents of several judges, the

federal courts have generally refused to consider the question on its merits, foreclosing relief

26

on procedural grounds, such as abuse of the writ or on the provisions of the Antiterrorism

and Effective Death Penalty Act of 1996 ("AEDPA"). E.g., White v. Johnson, 79 F.3d 432

(Sth Cir. 1996); Stafford v. Ward, 59 F.3d 1025, 1028 (10th Cir. 1995); Tumer v. Jabe, 58

F.3d 924, 926 (4th Cir. 1995); Porter v. Singletary, 49 F. 3d 1483, 1485 (11th Cir. 1995);

McKenzie v. Day, 57 F.3d 1461, 1463 (9th Cir. 1995), superseded en banc as McKenzie v.

Day, 57 F. 3d 1493 (9th Cir. 1995); Ceja v. Stewart, 134 F.3d 1368 (9th Cir. 1998).

The state courts have generally taken the position, as the Florida Supreme Court did

here, that, given the absence of a federal decision to the contrary, execution after prolonged

incarceration under sentence of death cannot be unconstitutional, so long as the delay is due

to appellate procedures, rather than a deliberate scheme io torture inmates. State v.

Schackart, 947 P.2d 315 (Ariz. 1997); State v. Smith, 931 P.2d 1272 (Mont. 1996); Bell v._

State, 938 S.W.2d 35 (Tex. Crim. App. 1996); Hill v. State, 962 S.W.2d 762 (Ark. 1998);

Stafford v. State, 899 P.2d 657 (Okla. 1995); Bush v. State, 695 So. 2d 138 (Ala. 1997).

The federal dicta upon which these decisions rely reflects a misunderstanding of the claim.

See McKenzie, 57 F.3d at 1484-89 (Norris, J., dissenting); Ceja, 134 F.3d at 1369-78

(Fletcher, J., dissenting). Smith, 931 P.2d at 1291-92 (Leaphart, J., specially concurring).

In particular, the suggestion that a death row inmate cannot complain of any delay unless

he foregoes the opportunity to question the constitutionality of his conviction and death

sentence, and insists on quick execution, “gives new meaning to the notion of ‘mockery of

justice."” McKenzie, 57 F. 3d at 1489 (Norris, J., dissenting).

27

Where, as here, the inherent cruelty of living under a sentence of death is prolonged

for more than two decades, because of the state's initial failure to give the prisoner the

constitutional sentencing hearing to which he was entitled, such suffering cannot be

considered incidental to the processing of the appeals. It is unnecessary and thus

unconstitutional. See Elledge, 119 S.Ct. at 366-67 (Stevens, J., dissenting from denial of

certiorari) (execution after delay of nearly a generation because of the state’s own faulty

procedures may be particularly cruel); Smith, 931 P.2d at 1291 (Leaphart, J., specially

concurring) (when a defendant is successful in his appeals, serious questions are raised "as

to how long a defendant can be expected to languish on death row while the State and the

trial courts are afforded repeated opportunities to comply with due process"). Such long-

term suffering becomes a separate form of punishment, which is equivalent to or greater than

an actual execution. See Coleman, 451 U.S. at 952 (Stevens, J., concurring in denial of

certiorari). As a result of the inordinate delay, death cannot be added to the punishment; the

only permissible punishment under the Eighth Amendment is life imprisonment.

This case presents no procedural obstacles to ruling on the merits. The claim was

clearly raised in the trial court and on direct appeal, and is here on petition for writ of

certiorari after direct appeal. This Court should grant the petition for writ of certiorari to

decide this important, unresolved issue.

IMPOSITION OF THE DEATH PENALTY THROUGH THE

RETROSPECTIVE APPLICATION OF A STATUTORY

AGGRAVATING FACTOR ENACTED AFTER THE

COMMISSION OF THE CRIMES VIOLATED THE

PROHIBITION AGAINST EX POST FACTO

PUNISHMENTS OF ARTICLE I, § 10 OF THE UNITED

STATES CONSTITUTION.

In February 1996, after a new sentencing hearing, Mr. Muhammad was sentenced to

death for murders committed in July 1974. Among the statutory aggravating circumstances

submitted to the jury, and relied upon by the judge in sentencing Mr. Muhammad to death,

was the circumstance that "[t}he capital felony was a homicide and was committed in a cold,

calculated, and premeditated manner without any pretense of moral or legal justification,"

§ 921.141(5)(i), Fla. Stat. (1995). This aggravating circumstance (referred to as "CCP")

“encompasses something more than premeditated first-degree murder." Jackson v. State, 648

So. 2d 85, 89 (Fla. 1994). The Florida Supreme Court has summarized its meaning as

follows:

[I}n order to find the CCP aggravating factor under our case law,

the jury must determine that the killing was the product of cool

and calm reflection and not an act prompted by emotional

frenzy, panic, or a fit of rage (cold), * * *; and that the

defendant had a careful plan or prearranged design to commit

murder before the fatal incident (calculated), * * *; and that the

defendant exhibit heightened premeditation (premeditated), * *

*; and that the defendant had no pretense of moral or legal

justification. * * *

Jackson, 648 So. 2d at 89 (citations omitted) (original emphasis).

29

The CCP aggravator was added to Florida’s death penalty statute in 1979, five years

after the offenses for which Mr. Muhammad was sentenced to death. Chapter 79-353, Laws

of Florida. In the trial court and on appeal, Mr. Muhammad asserted that its application to

the crimes committed in 1974 was a violation of the constitutional prohibition of ex post

facto laws. The Florida Supreme Court rejected this argument, based on its decision in

Combs v. State, 403 So. 2d 418 (Fla. 1981), cert. denied, 465 U.S. 1052 (1984), where it held

that in enacting CCP the legislature had not added an “entirely new" factor as an aggravating

circumstance, but had only “reiterate[d] in part what is already present in the elements of

premeditated murder,” with "limitations which inure to the benefit of a defendant," Combs,

403 So. 2d at 421. The state supreme court’s analysis is incompatible with the decisions of

this Court interpreting the requirements of the Ex Post Facto Clause.

A change in sentencing law violates the Constitution’s prohibition against ex_post

facto punishments "if it is both retrospective and more onerous than the law in effect on the

date of the offense." Weaver v. Graham, 450 U.S. 24, 30 (1981). To fall within the ex post

facto prohibition, a law must not only “apply to events occurring before its enactment,” it

“must disadvantage the offender affected by it," by altering the definition of criminal conduct

or increasing the punishment for the crime. Lynce v. Mathis, 117 S. Ct. 891, 896 (1997),

quoting Weaver, 450 U.S. at 29, and citing Collins v. Youngblood, 497 U.S. *”, >0 (1990);

accord Miller v. Florida, 482 U.S. 423, 430 (1987). Moreover, no ¢x post facto violation

occurs from changes which are procedural and do not affect r.atters of substance. Dobbert

30

a

y. Florida, 432 U.S. 282, 293 (1977). “Whether a retrospective state criminal statute

ameliorates or worsens conditions imposed by its predecessor is a federal question.” Weaver,

450 U.S. at 33. “The inquiry looks to the challenged provision, and not to any special

circumstances that may mitigate its effect on the particular individual." Id.

“Weaver and Miller held that the Ex Post Facto Clause forbids the States to enhance

the measure of punishment by altering the substantive ‘formula’ used to calculate the

applicable sentencing range." California Dept. of Corrections v. Morales, 514 U.S. 499, 505

(1995). The statute at issue in Miller established “presumptive sentencing ranges" for

various offenses, which judges were required to follow in the absence of clear and

convincing reasons for a departure. The legislature enacted a revised guidelines law which,

by increasing the number of points assigned to the crimes of conviction, effected an increase

in the presumptive sentencing range. This Court unanimously held that retrospective

application of the revised guidelines violated the Ex Post Facto Clause, because the change

substantially disa ivantaged those affected by it and was not procedural: The increase in

points did not alter the method to be followed in determining the appropriate sentence, "it

simply insert[ed] a larger number into the same equation,” thereby increasing the "quantum

of punishment" for that category of crimes. Id., 482 U.S. at 433-34.

Like the revision of the sentencing guidelines considered in Miller, the addition of the

CCP aggravating circumstance to Florida's death penalty statute enhances the measure of

punishment by altering the "substantive formula” used to determine the applicable sentence,

31

and, therefore its retrospective application to crimes committed before its enactment violates

the prohibition against ex post facto punishments.

Florida’s death penalty statute requires the jury to determine whether "sufficient

aggravating circumstances exist," whether "sufficient mitigating circumstances exist which

outweigh the aggravating circumstances found to exist," and "“[bjased on these

considerations, whether the defendant should be sentenced to life imprisonment or death."

§ 921.141(2), Fla. Stat. (1995); § 921.141(2), Fla. Stat. (1973). If a majority of the jury

recommends death, the judge, too, must make these determinations. § 921.141(3), Fla. Stat.

(1995); § 921.141(3), Fla. Stat. (1973).

The only aggravating circumstances which can be considered are those set forth in the

statute. § 921.141(5), Fla. Stat. (1995) (“Aggravating circumstances shall be limited to the

following . . ."); § 921.141(5), Fla. Stat. (1973) (same); Purdy v. State, 343 So. 2d 4, 6 (Fla.

1977) ("The specified statutory circumstances are exclusive; no others may be used for that

purpose.”); Miller v. State, 373 So. 2d 882, 885 (Fla. 1979) (same); Grossman v. State, 525

So. 2d 833, 842 (Fla. 1988) (same).

Moreover, the death penalty cannot be imposed unless at least one of the statutory

aggravating circumstances is properly found. Richardson v. State, 604 So. 2d 1107, 1109

(Fla. 1992) ("a defendant cannot be executed in the absence of aggravating factors"); Banda

y. State, 536 So. 2d 221, 225 (Fla. 1988) ("The death penalty is not permissible under the law

of Florida where, as here, no valid [statutory] aggravating factors exist."). Even if convicted

32

ee

of first-degree, premeditated murder, a person is not eligible for the death penalty in the

absence of a statutory aggravating circumstance. See Richardson, 604 So. 2d at 1109

(reducing death sentence to life imprisonment because, although there was sufficient

evidence that the murder was calculated, it was not "cold," and thus CCP did not apply, and,

since the other aggravator found by the judge also did not apply, the defendant could not be

executed); Banda, 536 So. 2d at 225 (although cold and calculated, the murder was not CCP,

which was the only aggravator found by the judge, and therefore the death sentence had to

be replaced by a sentence of life in prison).

Thus, as the Florida Supreme Court has repeatedly held, the statutory aggravating

circumstances, when read with the statutes defining capital crimes, "actually define those

crimes . . . to which the death penalty is applicable." State v. Dixon, 283 So. 2d 1, 9 (Fla.

1973); Combs, 403 So. 2d at 421.

Under such a capital sentencing statute, the enactment of a new aggravating

circumstance necessarily alters the "substantive formula" used to determine the applicable

sentence, and substantially disadvantages those affected by the change. The addition of an

aggravating circumstance to the statutory list renders eligible for the death penalty persons

who were not so before and, even in those cases where other aggravating circumstances

apply, ii i i i el

by the sentencing judge, since there is now an additional factor to be weighed against any

mitigating circumstances. Such a change in the standard used to ch x0se between life and

33

death is substantive and detrimental and therefore its retrospective application violates the

prohibition against ex post facto laws. See Miller, 482 U.S. at 431-36 (change in presumptive

guidelines sentencing range was not procedural, clearly disadvantaged those affected by it,

and its retrospective application was an ex post facto violation); Bowen vy. State, 911 S.W.2d

555, 563-64 (Ark. 1995) (concluding, based on Miller, that retrospective application of a

statutory aggravating circumstance was an ex post facto violation, because, as standards

guiding selection of the punishment, such statutory provisions are substantive, not merely

procedural, and although adding an aggravator "does not guarantee the harsher sentence, it

may have a direct effect on the decision and thus result in a harsher sentence than might have

been imposed were that aggravating circumstance not present"); State v. Jordan, 440 So. 2d

716, 718 (La. 1983) (addition of aggravating circumstance was a substantive change in the

law, and its application to defendant was an ex post facto violation because, assuming

arguendo that other aggravators did not apply, he was now exposed to the death penalty

whereas at the time of the murder he was not so exposed); State v. Correll, 715 P.2d 721,

734-35 (Ariz. 1986) (addition of aggravating circumstance, which was one of three found by

the trial court, was a substantive, not a procedural, change, and since it "obviously"

disadvantaged defendant was an ex post facto law); see also Trotter v. State, 690 So. 2d

1234, 1238 (Fla. 1997) (Anstead, J., dissenting) (redefining a death penalty crime by

amending aggravating circumstance was obviously a "far more substantial change in the law"

than the changes involved in Miller and Weaver).

34

The Supreme Court of Florida has recognized that the addition of statutory

aggravators may constitute a substantive change in the law of capital punishment, and that

retrospective application may be prohibited by the Ex Post Facto Clause. Hootman v, State,

709 So. 2d 1357, 1360 (Fla. 1998) (aggravating circumstance that "(t]he victim of the capital

felony was particularly vulnerable due to advanced age or disability" could not be applied

retrospectively because it was an “entirely new" aggravator, which changed the substantive

law of capital punishment and disadvantaged the defendant "by altering the definition of the

criminal conduct and increasing the punishment of a crime"), receded from on other grounds

in State v. Matute, 713 So. 2d 1006 (Fla. 1998). However, only the addition of aggravators

it deems to be “entirely” new is considered to effect a "substantial" change in the law whose

retrospective application would violate the Ex Post Facto Clause. See Hootman, 709 So. 2d

at 1360; Trotter, 690 So. 2d at 1237 (finding no ex post facto violation in retrospective

application of amended aggravator, which in its unamended form had been held inapplicable

in defendant’s case, “just as we have found no violation in every other case where an

aggravating circumstance was applied retroactively," because the extension of the

aggravator’s scope to encompass the circumstances of defendant’s case was merely a

"refinement" of the law, not a substantive change).

In Combs, the Florida Supreme Court held that application of the CCP aggravator to

a crime which occurred before that aggravator was enacted did not violate the prohibition

against ex post facto laws, explaining that the legislature had not added an “entirely new"

35

factor as an aggravating circumstance, but had only "reiterate[d] in part what is already

present in the elements of premeditated murder," with “limitations which inure to the benefit

of a defendant." Combs, 40° so. 2d at 421. As stated by the Florida Supreme Court:

What, then, does paragraph (i) [establishing the CCP

aggravator] add to the statute? In our view, it adds the

requirement that in order to consider the elements of a

premeditated murder as an aggravating circumstance, the

premeditation must have been "cold, calculated and . . . without

any pretense of moral or legal justification.” Paragraph (i) in

effect adds nothing new to the elements of the crimes for which

petitioner stands convicted but rather adds limitations to those

elements for use in aggravation, limitations which inure to the

benefit of a defendant.

Combs, 403 So. 2d at 421.

This "peculiar position" is “simply untenable," Justus v. Florida, 465 U.S. 1052, 1054

(1984) (Marshall, joined by Brennan, JJ., dissenting from denial of certiorari), and cannot

survive the analysis required by this Court’s decision in Miller, see Ellis v. State, 622 So. 2d

991, 1002 (Fla. 1993) (Kogan, J., concurring) (Miller renders unconstitutional a retroactive

application of the CCP aggravator).

The cold, calculated or premeditated aggravating circumstance is not merely a

restatement of an element of the crime of first-degree murder, nor a reiteration of an existing

aggravating circumstance. The elements of premeditated murder, unlike the statutory

aggravating circumstances, did not give rise to a presumption that death is the proper

sentence. See Dixon, 283 So. 2d at 9. And, before the addition of the CCP aggravator,

neither the judge nor the jury could consider in aggravation the fact that the murder was “the

product of cool and calm reflection,” or that it was carefully planned, or that the defendant

exhibited “heightened premeditation" and had "no pretense of moral or legal justification,”

because those circumstances, which are included under CCP, Jackson, 648 So. 2d at 89, were

not in the exclusive list of aggravating circumstances which the judge and the jury were

required to weigh against whatever mitigation might be present. See Purdy, 343 So. 2d at 6

("The specified statutory circumstances are exclusive; no others may be used for that

purpose.”); Miller, 373 So. 2d at 885 (same), Grossman, 525 So. 2d at 842 (same).

Enactment of the CCP aggravator did not place “limitations” on an existing

aggravating circumstance, it expanded the circumstances in which the death penalty could

be considered presumptively appropriate. It rendered eligible for the death penalty persons

who were not so before, and increased the risk that others wou'd be sentenced to death. Like

the revision of the guidelines considered in Miller, such a change, whether or not it is

“entirely” new, is substantive, not procedural, and cannot be considered ameliorative. See

Bowen, 911 S.W. 2d at 563-64; Jordan, 440 So. 2d at 718; Correll, 715 P.2d at 734-35; Ellis,

622 So. 2d at 1002 (Kogan, J., concurring); Trotter, 690 So. 2d at 1238 (Anstead, J.,

dissenting); see also Combs, 403 So. 2d at 422 (Sundberg, C.J, concurring in part and

dissenting in part, joined by England and McDonald, JJ.) ("1 must confess that it is beyond

my powers of comprehension to understand how the majority can seriously contend that the

addition of subsection (i) as an aggravating circumstance “inure{s] to the benefit of a

37

defendant.").

By altering the substantive formula used to determine whether a death sentence should

be imposed, this change increased the quantum of punishment. The legislature has not only

“inserted a larger number into the same equation,” see Miller, 482 U.S. at 433, it has changed

the equation itself, see Justus, 465 U.S. at 1054 (Marshall, joined by Brennan, JJ., dissenting

from denial of certiorari) ("By amending its death penalty statute [to add CCP], Florida

changed the ground rules for judging the totality of the circumstances."). In the present case,

application of this new aggravator, to which the sentencing judge gave “great weight" (R.

528), “made it easier for the Florida judge to sentence petitioner to death, and for that reason

alone was more onerous for petitioner than the sentencing procedure in place at the date of

his offense." Justus, 465 U.S. at 1054. The Florida Supreme Court’s conclusion that no ex

post facto violation occurred, and its analysis of the requirements of the Clause in this

context, is clearly contrary to the decisions of this Court.

CONCLUSION

For the foregoing reasons, the writ should be granted.

Respectfully submitted,

BENNETT H. BRUMMER

Public Defender

Eleventh Judicial Circuit

of Florida

1320 N.W. 14th Street

Miami, Florida 33125

(305) 545-1958

By: ,

BETH C. WEITZNER*

Assistant Public Defender

- aL

Assistant Public Defender

June 9, 1999

*Counsel of Record