Business & Practice

Sotomayor, SCOTUS Condone Execution in ‘Kafkaesque’ System

Aug. 23, 2019, 2:01 PM

Justice Sonia Sotomayor last night called part of Florida’s capital punishment system “Kafkaesque,” but she still joined her U.S. Supreme Court colleagues in allowing the Sunshine State to carry out an execution under that system.

The justice said she’d be up for reviewing Florida’s system in a future case, but that Gary Ray Bowles’ appeal wasn’t the right one in which to take on the state’s regime that blocks certain defendants from pressing intellectual disability claims.

The high court’s rejection allowed the state to execute the 57-year-old serial killer, who preyed on gay men on the East Coast in the 1990s, earning the moniker the “I-95 Killer.”

The Supreme Court ruled in 2002 that the Constitution bars executing the intellectually disabled. In 2014, the justices ruled that Florida’s strict IQ cutoff ran afoul of the 2002 ruling. Since then, Florida’s supreme court has said the 2014 ruling, Hall v. Florida, applies retroactively, but it also has blocked defendants like Bowles from taking advantage of it, saying they needed to have raised their claims long before it was written.

That’s “Kafkaesque,” Sotomayor said, noting the state’s regime is “at odds with another Florida rule requiring counsel raising an intellectual-disability claim to have a ‘good faith’ basis to believe that a death-sentenced client is intellectually disabled (presumably under the limited definition of intellectual disability that Florida had then imposed).”

Florida’s time-bar rule “also creates grave tension with this Court’s guidance in Montgomery v. Louisiana,” Sotomayor said, referring to a 2016 case that dealt with retroactivity in juvenile sentencing.

Yet she concluded that Bowles’ claims didn’t warrant review, suggesting that he could have framed his appeal differently. She said in the future she could be “prepared to revisit a challenge to Florida’s procedural rule.”

Sotomayor’s separate writing last night was the only statement from a justice during a two-day span of U.S. executions that began on Wednesday night in Texas. In that case, the high court rejected without comment the appeals of Larry Swearingen, who proclaimed his innocence and, like Bowles, was executed after the Supreme Court declined to intervene.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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