JAMES FLOYD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

___________________________/

COMES NOW the Appellant, JAMES FLOYD, and respectfully gives notice to this Court of the enactment of Sect. 921.137, Fla. Stat., which was signed into law by Governor Bush on June 12, 2001, and moves this Court for permission to submit supplemental briefing. As noted in Mr. Floyd’s initial brief, school records from when Mr. Floyd was 15 years old list his IQ as 51 and described him as mentally retarded (Initial Brief 12, 18). Mr. Floyd sought to present an expert to testify in post-conviction proceedings that Mr. Floyd suffers mental retardation and that his IQ has been measured at 60 (Initial Brief at 32). In support of his request for an opportunity to submit supplemental briefing, Mr. Floyd states:

1. Sect. 921.137, provides that "[i]mposition of [a] death sentence upon a mentally retarded defendant [is] prohibited." This provision extends to mentally retarded individuals a substance right not to be executed. The legislature directed that "[t]his act shall take effect upon becoming a law." However, the legislature further directed that "[t]his section does not apply to a defendant who was sentenced to death prior to the effective date of this act."

2. In Fleming v. Zant, 386 S.E. 2d 339 (Ga. 1989), the Georgia Supreme Court was presented with a similar enactment precluding the execution of one found to be mentally retarded. However, the statute was only to apply to capital proceedings that began after July 1, 1988. As the Georgia Supreme Court noted, "On its face the statute does not apply to Son Fleming, who was tried more than ten years ago." 386 S.E. 2d at 341. After full briefing and oral argument, the Georgia Supreme Court held that "although there may be no ‘national consensus’ against executing the mentally retarded, this state’s consensus is clear." 386 S.E. 2d at 342. Thus, the execution of the mentally retarded sentenced to death before the statute’s effective date violated the Georgia Constitution’s prohibition against cruel and unusual punishments.

3. In the past members of this Court have indicated that even without legislative action prohibiting the execution of the mental retarded, the Florida Constitution’s prohibition against "cruel or unusual" punishment should be construed to ban the execution of a mentally retarded individual. Woods v. State, 531 So. 2d 79, 83 (Fla. 1988)(Barkett, J. dissenting, joined by Shaw and Kogan, JJ.); Hall v. State, 742 So. 2d 225, 231 (Fla. 1999)(Anstead, J. dissenting, joined by Pariente, J.). Certainly, the Florida legislature’s adoption of Sect. 921.137 and the Governor’s decision to sign it speaks volumes regarding the development of a consensus within the State of Florida that mentally retarded individuals should not be executed. While addressing the constitutionality of the electric chair, Justice Quince recently stated, "Courts should instead give effect to the legislative enactment as a reflection of the will and the moral values of the people." Provenzano v. Moore, 744 So. 2d 413, 421 (Fla. 1999). The legislature and the Governor have now spoken. This Court should reconsider the issue of whether the Florida Constitution precludes the execution of the mentally retarded in light of the consensus within the State of Florida that such individuals should not be executed.

4. Additionally, Mr. Floyd would note that under Florida’s new provision, the date of the sentencing determines whether a mentally retarded person may be executed. For example, assuming Mr. Floyd’s death sentence is vacated on other grounds and a resentencing is ordered, a death sentence will be precluded under the new provision if it is determined that Mr. Floyd is mentally retarded. The date of the crime does not control, but the date of the sentencing. The distinction is surely arbitrary. Those mentally retarded individuals already sentenced to death who are lucky enough to get a resentencing ordered on other grounds may not be resentenced to death. However, mental retarded individuals who do not obtain a resentencing on other grounds would not get the benefit of the new provision. The difference in treatment of those death sentenced mentally retarded individuals turns on a factor entirely unrelated to either the circumstances of the crime or the character of the defendant. Gregg v. Georgia, 428 U.S. 153, 199 (1976)("Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant."). Thus, such an arbitrary distinction calls into question Florida’s capital sentencing process.

5. Moreover, this Court has held that "the death penalty is either cruel or unusual if imposed upon one who was under the age of sixteen when committing the crime." Allen v. State, 636 So. 2d 494, 497 (Fla. 1994). This is because this Court could not "countenance a rule that would result in some young juveniles being executed while the vast majority of others were not, even where the crimes were similar." Id. See Brennan v. State, 754 So. 2d 1 (Fla. 1999). In light of the new legislative enactment there can be no real dispute that it will be unusual for a mentally retarded individual to be executed. Thus, the Florida Constitution will not "countenance a rule" that would permit a mentally retarded person to be executed while other mentally retarded persons have a substantive right to not be executed.

6. "A prisoner under a death sentence remains a living person and consequently has an interest in his life." Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 288 (1998)(O’Connor, J., concurring). Mr. Floyd is such a prisoner with such an interest. He has further been found to be a mentally retarded individual, and therefore within the scope of those individuals protected Sect. 921.137. "Liberty interests protected by the Fourteenth Amendment may arise from two sources—the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S. 460, 466 (1983). The Florida legislature and the Governor have determined that mentally retarded individuals like Mr. Floyd have a substantive right to not be executed. Apparently for the sake of finality, the legislative enactment deprives Mr. Floyd the substance right extended to other mentally retarded individuals. It is undisputed that the Florida legislature does have the power to enact "substantive law." Allen v. Butterworth, 756 So. 2d 52, 59 (Fla. 2000). However, it is equally undisputed that it is for the courts to determine "whether the State’s positive law has created a liberty interest and whether its procedures are adequate to protect that interest from arbitrary deprivation." Ford v. Wainwright, 477 U.S. at 430-31. There really should be no dispute that the legislative enactment has arbitrarily deprived Mr. Floyd of a substantive right in violation of his constitutional rights.

7. The circumstances are very much akin to those present Justice O’Connor found to be present in Ford v. Wainwright. There, the Florida legislature had extended a substantive to right to incompetent individuals under sentence of death. However, the procedures afforded those individuals for vindicating that right were found to be inadequate. Ford v. Wainwright, 477 U.S. at 430 (O’Connor, J, concurring in result)("Because Florida’s procedures are inadequate to satisfy even the minimal requirements of due process in this context, I would vacate the judgment below with instructions that the case be returned to Florida so that it might assess petitioner’s competency in a manner that accords with the command of the Fourteenth Amendment."). Thereafter, this Court promulgated court rules setting forth the procedure for determining whether an individual was competent to be executed. See Rule 3.811, Fla. R. Cr. Pro.

8. Additionally, the Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. The United States Supreme Court has addressed the Eighth Amendment and explained its dynamic character:

Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gives it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, "designed to approach immortality as nearly human institutions can approach it."

* * *

The [cruel and unusual punishment clause], in the opinion of the learned commentators, may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.

Weems v. United States, 217 U.S. 349, 373, 378 (1910). When the Supreme Court addressed whether the Eighth Amendment precluded the execution of those who were 17 years of age at the time they committed a capital offense, the plurality explained:

When this Court cast loose from the historical moorings consisting of the original application of the Eighth Amendment, it did not embark rudderless upon a wide-open sea. Rather, it limited the Amendment’s extension to those practices contrary to the "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S., at 101 (plurality opinion)(emphasis added).

Stanford v. Kentucky, 492 U.S. at 378-79 (plurality opinion as to part V).

9. One measure of the evolving standards of decency that has been repeatedly used by the Supreme Court has been whether a national consensus against the imposition of a particular punishment in particular circumstances exists. Ford v. Wainwright, 477 U.S. at 406 ("this Court takes into account objective evidence of contemporary values before determining whether a particular punishment comports with the fundamental human dignity that the Amendment protects"). First among the "objective indicia that reflect the public attitude toward a given sanction" are statutes passed by society’s elected representatives. McCleskey v. Kemp, 481 U.S. 279, 300 (1987), quoting Gregg v. Georgia, 408 U.S. 153, 173 (1976). Such a legislative review enables a court "to determine whether our Nation has set its face against a punishment to an extent that it can be concluded that the punishment offends our ‘evolving standards of decency.’" Stanford, 492 U.S. at 383 (Brennan, J., dissenting),quoting Trop, 356 U.S. at 101. The majority in Stanford stated, "As far as the primary and most reliable indication of consensus is concerned--the pattern of enacted laws--petitioners have failed to [establish a national consensus against the execution of an individual who was 17 at the time of the commission of the capital offense]." 492 U.S. at 373.

10. In Enmund v. Florida, 458 U.S. 782 (1982), the Supreme Court addressed whether the Eighth Amendment precluded a state from executing an individual who merely aided and abetted in a felony, in the course of which a homicide occurred. In concluding that the Eighth Amendment precluded a sentence of death in such circumstances, where the condemned did not kill, attempt to kill, or intend to kill, this Court explained:

The Coker [v. Georgia, 433 U.S. 584 (1977)] plurality observed that "[a]t no time in the last 50 years have a majority of the States authorized death as a punishment for rape." Id., at 593. More importantly, in reenacting death penalty laws in order to satisfy the criteria established in Furman v. Georgia, 408 U.S. 238 (1972), only three States provided the death penalty for the rape of an adult woman in their revised statutes. 433 U.S., at 594. The plurality therefore concluded that "[t]he current judgment with respect to the death penalty for rape is not wholly unanimous among state legislatures, but it is obviously weighs very heavily on the side of rejecting capital punishment as a suitable penalty for raping an adult woman." Id. 433 U.S., at 596 (footnote omitted).

458 U.S. at 789. The Court in Enmund then surveyed the laws of each state legislature to determine the position of each as to the execution of one convicted of felony-murder, but who did not kill, attempt to kill, or intend to kill. The Court concluded:

Thus only a small minority of jurisdicitions--eight--allow the death penalty to be imposed solely because the defendant somehow participated in a robbery in the course of which a murder was committed. Even if the nine States are included where such a defendant could be executed for an unintended felony murder if sufficient aggravating circumstances are present to outweigh mitigating circumstances--which often include the defendant’s minimal participation in the murder--only about a third of American jurisdictions would ever permit a defendant who somehow participated in a robbery where a murder occurred to be sentenced to die. Moreover, of the eight States which have enacted new death penalty statutes since 1978, none authorize capital punishment in such circumstances.

458 U.S. at 793. Thus, the fact that a total of seventeen (17) states may have statutorily permitted the execution of an accessory to felony-murder did not preclude a finding of a national consensus given the obvious trend between 1978 and 1982.

11. In Penry v. Lynaugh, 492 U.S. 302, 330-31 (1989), while considering whether the Eighth Amendment precluded the execution of the mentally retarded, this Court explained:

The prohibition against cruel and unusual punishments also recognizes the "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958)(plurality opinion); Ford [v. Wainwright, 477 U.S. 399,] 406 [(1986)]. In discerning those "evolving standards," we have looked to objective evidence of how our society views a particular punishment today. See Coker v. Georgia, [433 U.S. 584,] 593-597 [(1977)]; Enmund v. Florida, 458 U.S. 782 (1982). The clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.

In Penry, the Supreme Court concluded, "at present, there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment." 492 U.S. at 335.

12. Since the decision in Penry, a national consensus has developed against executing the mental retarded. As reported on June 16, 2001, President Bush has stated, "We should never execute anybody who is retarded." Attachment A. As noted in the Senate Staff Analysis of Sect 921.137, twelve states had joined Georgia since the Penry decision in prohibiting the execution of the mentally retarded. Attachment B. Since that analysis was written in February of this year, the list has grown longer. Arizona and Florida have new laws prohibiting such executions. Legislation has passed in Connecticut, Missouri and Texas, and is awaiting a signature from the Governors of those states. And still other states are considering such legislation in their legislative sessions this year. When the twelve states that do not have a death penalty are included, it is clear that a majority of states prohibit the execution of the mental retarded.

13. In his Initial Brief before this Court, Mr. Floyd stated:

Mr. Floyd is mentally retarded. When he was 15 years old and in the eighth grade, he was diagnosed as mentally retarded by psychologists with the Pinellas County schools. James had an IQ of 51, which places him in the mentally retarded range. James was academically years behind his peers. At age 15, when he should have been in the tenth grade, his grade level was at the third grade level. He missed weeks of school. Though incapable of performing anywhere near his grade level, James was promoted only to move him along so he would not stand out worse that he already did. School records show James was "below average" and "slow" in all areas of school.

14. The Senate Staff Analysis explained that the legislation did not set forth a specific IQ as necessary to establish mental retardation:

The bill does not contain a set IQ level, but rather it provides that low intellectual functioning "means performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Department of Children and Family Services." Although the department does not currently have a rule specifying the intelligence test, it is anticipated that the department will adopt the nationally recognized test. Two standard deviations from these tests is approximately a 70 IQ, although it can be extended up to 75. The effect in practical terms will be that a person that has an IQ of around 70 or less will likely establish an exemption from the death penalty.

Attachment B at 11. Mr. Floyd clearly is person who in the words of the Senate Staff Analysis "will likely establish an exemption from the death penalty."

WHEREFORE, Mr. Floyd provides notice of his intention to rely on this supplemental authority and moves this Court for permission to file supplemental briefing regarding the effect of this new legislation upon his sentence of death.

I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished by United States Mail, first class postage prepaid, to all counsel of record on June 18, 2001.

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PAMELA H. IZAKOWITZ

Assistant CCRC-South

Fla. Bar No. 0053856

CAPITAL COLLATERAL

REGIONAL COUNSEL – SOUTH

303 s. Westland Avenue

P.O. Box 3294

Tampa, FL 33606

(813) 259-4424

MARTIN J. MCCLAIN

Special Assistant CCRC-South

Fla. Bar No. 0754773

9701 Shore Rd. Apt. 1-D

Brooklyn, NY 11209

(718) 748-2332

Attorneys for Mr. Floyd

Copies furnished to:

Carol Dittmar

Assistant Attorney General