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, Florida still executes the mentally ill. This bill would stop that.,  HEALING MENTAL HEALTH TOGETHER
This 2017 Florida Department of Corrections photo shows the gurney used to execute death row inmates via lethal injection at Florida State Prison at Starke.

One man, convicted of killing two court bailiffs in Orange County, suffered from delusions that he was Jesus Christ. Another man with a long history of paranoid schizophrenia murdered eight people in South Florida. He believed he was the prince of God.

Both Thomas Provenzano and John Errol Ferguson were sentenced to death. As their execution dates approached, their attorneys sought reprieve through a state law that is supposed to bar executing those who can’t grasp what’s happening to them.

In the end, Florida executed both of them.

Years later, a bill now in the Legislature seeks to give more protections to defendants diagnosed with mental illness accused of capital crimes.

Senate Bill 1156, spearheaded by a Tampa Bay area public defender and sponsored by a St. Petersburg lawmaker, would bar the state from seeking a death sentence for those with severe mental illnesses — if they can prove they were ill at the time of the offense. They would instead face life in prison or be admitted to a state mental hospital.

“I was shocked we didn’t already have this in law,” said Sen. Jeff Brandes, the St. Petersburg Republican sponsoring the bill. “When it was discussed with me ... I immediately said, ‘Absolutely, we would take this on.’”

Florida Sen. Jeff Brandes, R-St. Petersburg in a 2019 photo.

The idea came from Allison Miller, the capital case coordinator for the Pinellas-Pasco Public Defender’s Office. The legislation is modeled after an Ohio bill that was signed into law in January. Like Florida, Ohio’s state government is Republican controlled.

Miller likened the bill to an expansion of Florida law that already bars people with intellectual disabilities from facing the ultimate punishment.

“I’m not reinventing the wheel,” she said. “I used the language from the bill in Ohio, and I used the procedure from Florida when it comes to intellectual disabilities.”

The bill passed unanimously March 30 through the Senate’s Criminal Justice Committee, receiving a bipartisan vote of confidence from the five Republican and three Democrat members. But without a House companion, and with just two weeks left of this year’s Legislative session, it’s unlikely to pass unless it’s tacked onto a larger criminal justice package. Brandes said he couldn’t find a sponsor in the House this year, but he plans to try again next session.

Pinellas-Pasco Public Defender Allison Miller [ DOUGLAS R. CLIFFORD ]

Still, the effort signals another contentious issue with the state’s beleaguered death penalty statute. Meanwhile nationwide executions are on the decline. Last year states executed 17 people, the fewest since 1991, according to the Death Penalty Information Center.

Florida is one of 24 states that still conducts executions. California, Oregon and Pennsylvania still have the ultimate punishment on the books, but the governors of those states have imposed moratoriums on putting defendants to death. Last month, Virginia Gov. Ralph Northam signed a bill abolishing his state’s death penalty, calling it “the moral thing to do.” Virginia is the first Southern state to do away to do away with the sentence.

Past U.S. Supreme Court rulings have spared children and people with intellectual disabilities from execution. Case law refers to society’s “evolving standard of decency,” Miller said, in determining whether the death penalty constitutes cruel and unusual punishment for certain groups.

“I think we’re at the place where the ‘evolving standard of decency’ includes mental illness,” she said.

Florida death row inmate Thomas Provenzano is escorted from an Orlando courtroom during a 1999 hearing where the state and defense argued over whether Florida's electric chair showed a pattern of cruel and unusual punishment. He was executed by lethal injection in 2000. [ JOE BURBANK | Associated Press ]

Her proposed legislation defines serious mental illness as any condition that “significantly impairs” a person’s capacity to “appreciate the nature, consequences, or wrongfulness of his or her conduct ... or conform his or her conduct to the requirements of the law.” Lawmakers could further narrow the definition. For example, the Ohio bill cites specific disorders such as schizophrenia and bipolar disorder.

Florida already has some safeguards in place. There’s the procedure that lawyers for Provenzano and Ferguson attempted to use, which comes into play once someone has already been sentenced to death.

Gary Alvord’s attorneys used that process successfully, but it created a conundrum: Doctors at the mental hospital where Alvord was admitted to restore his competency refused to treat him, citing the ethical concerns of making a patient well just to send them to die.

In 1973 Alvord strangled three Tampa women in the same house — a mother, daughter and grandmother — and after four decades became the nation’s longest serving prisoner on death row. Then he died of natural causes in 2013.

Florida law also has a process to question someone’s competency to stand trial, or the option to use insanity as a defense. But that defense rarely works, experts say, because the criteria is extremely narrow.

This bill allows defense attorneys to try and convince a judge to remove the death penalty as a possible sentence, Miller said. It’s not a defense of the crime itself, so the person could still be found guilty.

“We’re saying these people can be held legally responsible and prosecuted,” Miller said.

To use the law, a defendant would file a motion at least 90 days before their trial date spelling out their mental condition and including any prior evaluations by mental health experts.

An undated Florida Department of Corrections photo of death row inmate John Errol Ferguson, who was executed in 2013. [ AP ]

Prosecutors would then have a chance to pick their own expert to evaluate the defendant and submit a report to the court. If the defendant hasn’t had any prior evaluations, the court would appoint two experts to evaluate them. Prosecutors and defense attorneys would be allowed to sit in on the evaluations.

Then, all parties would participate in a court hearing where the judge “shall consider the findings of the experts and all other evidence on the issue of whether the defendant is seriously mentally ill,” the bill says. The judge would make the final decision, which prosecutors can appeal.

The bill would apply retroactively, giving the 330 inmates on Florida’s death row a chance to challenge their sentences. It’s unclear how many of them would meet the bar.

From 2000 to 2015, data shows 43 percent of those executed nationwide were diagnosed with mental illness at some point in their lives, according to University of North Carolina at Chapel Hill researchers who wrote about their work in a 2017 Washington Post article.

But that doesn’t delineate between severe and more mild diagnoses. Mental Health America, a national advocacy group, estimates that 20 percent of the nation’s death row prisoners have a severe mental illness.

Gary Alvord spent nearly four decades on Florida's death row, awaiting execution for the murders of three women in 1973. He was the nation's longest-serving death row inmate when he died on May 19, 2013 of natural causes at Union Correctional Institution. [ HANDOUT | FDOC ]

The bill’s supporters include the Florida Mental Health Advocacy Coalition, Florida Association of Criminal Defense Lawyers and former death row physician Dr. Joseph Thornton.

So far the bill has no apparent opposition. Efforts in other states, including Ohio, met resistance primarily from prosecutors, said Death Penalty Information Center executive director Robert Dunham. But the Florida Prosecuting Attorneys Association hasn’t taken a stand on the bill, said a spokesman for the president of the association, Brevard-Seminole State Attorney Phil Archer.

Florida's death row houses 330 inmates awaiting a death sentence.

Thornton pointed to Provenzano and Ferguson, who were put to death in 2000 and 2013 respectively, as examples of the state knowingly executing people with severe mental illness.

The situation is more troubling, he said, considering that Florida consistently ranks toward the bottom of states in funding mental health services. Most of those with mental illness aren’t violent, he said.

Problems result, he said, when mental health issues go untreated.

“Using the death penalty as a mental health intervention is certainly not what anyone wants,” Thornton said.

Florida also leads the country in exonerations from death row, with 30 people freed so far. And those diagnosed with major mental illness are more likely to be wrongfully convicted, Miller said, because they’re the least likely — and least able — to help with their own defense.

“I’m an older physician, so I have old rules,” Thornton said. “One of them is make sure everybody can survive a mistake.”

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