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The Florida Bar

The Death Penalty & Cruel and Unusual Punishment

Criminal defense attorneys often explain that the Eight Amendment of the United States Constitution, applicable to the states through the 14th Amendment Due Process Clause, prohibits cruel and unusual punishment. Florida, along with 36 other states and the federal government, authorize the use of the death penalty for capital offenses. The death penalty was reinstated in Florida in 1979. The death penalty in Florida is administered by lethal injection, unless the inmate elects electrocution. As of March 2010, there are 394 inmates on Florida’s death row. Interestingly, the executioner is a private citizen who is compensated $150 per execution and state law allows the identification of the private citizen to remain anonymous.

In Florida, the death penalty may only be imposed under statutory guidelines that give the judge or jury reasonable discretion and guidance in their decision making. The statutory guidelines must be specific and allow the trier of fact to consider all mitigating factors.

The death penalty cannot be imposed on all defendants. If the death penalty sentence is party based on aggravating factors of a defendant’s prior convictions which are reversed, the death penalty cannot be imposed.

The death penalty may also not be imposed if the death penalty is disproportionate to the offense. For example, if a defendant is found guilty of raping an adult woman, the death penalty cannot be imposed because it is disproportionate to the offense. It is also unconstitutional to impose the death penalty for felony murder, unless the defendant’s participation was major.

It is unconstitutional to execute an inmate who is insane at the time of the execution. This prohibition applies even thought the inmate was sane at the time the capital offense was committed. The Governor of Florida must stay the execution and appoint a commission of three psychiatrists to examine the death row inmate. The role of the psychiatrists is to determine whether or not the death row inmate understands the nature and effect of the death penalty and why it has been imposed. The inmate is entitled to retained or appointed counsel at the examination. If the commission finds that the inmate does in-fact understand the nature of the death penalty and why it has been imposed, the Governor must schedule a new execution date. If, on the other hand, the commission finds the inmate is incapable of understanding, the Governor must have the death row inmate committed to a Department of Corrections mental health treatment facility until the facility administrator determines that he or she has been restored to sanity.

In addition, the death penalty cannot be imposed for offenders who are younger than age 16 at the time the offense was committed.

Florida law also prohibits the execution of any female inmate who appears to be pregnant at the time of execution. If the Governor is informed that a female death row inmate may be pregnant, the Governor must stay the execution and appoint a qualified physician to conduct an examination. Within ten days from the date of examination, if it is determined that the female inmate is not pregnant, the Governor has ten days to set a new date for the death sentence.

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