BY MEG LAUGHLIN
mlaughlin@herald.com
Would a tiny word change from ”or” to “and” in Florida's Constitution enable the state to execute 16-year-olds?
That's the highly disputed question facing the Legislature on a measure called amendment Two.
Amendment Two is about enshrining the death penalty in the state Constitution so that the Florida Supreme Court could not take the unlikely and unprecedented step of declaring it unconstitutional. The Legislature approved the amendment in1998, then 72.8 percent of voters in Florida voted for it, and it became law. But the state Supreme Court overturned it because of improper ballot wording.
Now, Amendment Two is back -- this time with clearer ballot language. But even with clearer language, it has stirred passionate debate over what the change from “or” to “and” means if protection for convicts against “cruel or unusual punishment” is changed to protection against “cruel and unusual punishment.”
What this change would mean is demonstrated by a case called “Brennan”: In July 1998, the Florida Supreme Court overturned the death penalty of Keith Brennan, who committed the crime that put him on Death Row when he was 16. Brennan, now 22, slit the throat of a man whom his 18-year-old friend had robbed and clubbed into unconsciousness. It was Brennan's first and only crime.
Three years later, the Florida Supreme Court overturned his execution based on the belief that executing someone who was 16 at the time of the crime was “cruel” (although not “unusual” since 19 states allow it). Brennan received a life sentence without parole. But had the Amendment Two language been in effect, he would still be on Death Row.
In the two months after the reversal of Brennan's death sentence, the Florida Supreme Court reversed the death sentences of two more people who murdered when they were 16, based upon the Brennan ruling, which forbade punishments that were either cruel or unusual.
Last week, legislators on the House Committee on Crime Prevention, Corrections and Safety debated whether changing “or” to “and” would overturn Brennan and clear the way to executing 16-year-olds.
“It would,” said Democrat Sally Heyman, the representative from North Miami Beach.
“It wouldn't,” said Republican Gus Bilirakis, the representative from the Tampa Bay area.
Seven legislators agreed with Bilirakis and voted for Amendment Two, clearing the way for it to be voted on by the entire Legislature.
“Those who thought it wouldn't overturn Brennan and open the door for executing 16-year-olds were misinformed because the staff analysis was not thorough enough,” Heyman said.
Staff Director David De la Paz, who offered the analysis, told committee members: “[The Florida justices] did take that extra step and say, ‘Even if we had applied the federal standard [of relying on the cruel and unusual punishment language], the result would have been the same.’”
Indeed, the justices said they would not have allowed Brennan to be executed because they considered his age at the time of the crime to be a mitigating factor, but their decision, which was constitutionally binding, was based on the Florida protection against “cruel or unusual punishment,” not a mitigating factor.
De la Paz's interpretation of the ruling is that Amendment Two would not allow Florida to execute 16-year-olds, but would protect the death penalty.
Randall Berg, executive director for the Florida Justice Institute in Miami, disagreed and fired off a letter of protest to Bilirakis.
Berg's letter said: “. . . The advice [that Amendment Two would not overrule Brennan] is contrary to both the Brennan decision and to the Attorney General's interpretation of Brennan in litigation before the Florida Supreme Court.”
Berg noted that the Florida justices said the “federal standard,” to which De la Paz referred, was “not binding on our state constitutional analysis.” Therefore the “cruel and unusual punishment” language of Amendment Two rather than the current “cruel or unusual” language would indeed “allow the execution of children” in Florida.
“If it is not the Legislature's intent to overrule Brennan . . .then this amendment must be rewritten to make that clear,” Berg wrote.
In response, Bilirakis said it was not his intention to execute 16-year-olds. But, he said, he had not thought that Amendment Two would do that.
“Nevertheless, we want to be absolutely sure and would certainly consider looking at the language again,” he said.
But, later, Bilirakis said he would stop short of altering Amendment Two. He said he preferred, instead, to introduce a separate statute to protect 16-year-olds from execution.
“If Amendment Two blows through the Legislature, which it probably will,” Heyman said, “we'll be allowed to kill kids here -- just like Nigeria, the Congo, Saudi Arabia and Iran, where kids are also executed. Now, isn't that something to make Florida stand proud?”