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Martin Dyckman: If Scott gets to pack the Court, expect more executions

 As it had done many times before, the Florida Supreme Court last week set aside a death penalty because the punishment didn’t fit the crime.

This time, though, there was an ominous dissent, largely ignored by the media, challenging the court’s authority to do that. There could be many more executions if the dissent ever becomes the court’s majority view.

The defendant in this case, Michael M. Yacob, 28, will spend the rest of his life in prison without parole. He was 22 when he killed a Jacksonville convenience store clerk during a robbery.

The court found that Yacob hadn’t intended murder and was leaving with the gun in his pocket when Moussa Maida, the clerk, locked the front door remotely and sought refuge in the cashier’s booth. Yacob panicked.

Other than the robbery itself, there were no other strikes against him. The court cited its “well-established precedent” that death is usually an excessive penalty in such cases. Five justices concurred.

But the dissenters, arch-conservative Justices Charles Canady and Ricky Polston, contended that a 2002 constitutional amendment deprived the court of the authority to conduct any such proportionality review.

The amendment, inspired by legislators eager for more executions, obliges Florida death penalty decisions to conform to those of the U.S. Supreme Court.

And because that court doesn’t require proportionality review, say Canady and Polston, Florida’s court is powerless to conduct it.

There has been such a review in the automatic appeal of every death case since Florida re-enacted capital punishment in 1972. The law requires the court to consider whether the sentence is appropriate as well as whether the conviction is legal.

Proportionality review was a key element in the court’s own decision, and that of the U.S. Supreme Court, to uphold the new law. They reasoned that it would prevent the unchecked discretion and biases that had prompted the high court to suspend capital punishment everywhere.

The U.S. Supreme Court noted with approval that Florida would now review death sentences “with a maximum of rationality and consistency…”

However, the court ruled in 1984 that California was not obligated to conduct proportionality review. It cited other safeguards in the California law, notably a requirement for unanimous jury death verdicts, which Florida lacks.

The dissent, written by Canady, was cold-blooded. He conceded that Yacob’s sentence was “not proportionate” to similar cases. But he should be executed anyway.

So much for the fiction that conservative judges aren’t activists. The power of proportional review wasn’t an issue in Yacob’s case until Canady and Polston raised it. If that’s not activism, nothing is.

As the majority pointed out, proportional review had gone unchallenged by six elected attorneys general in hundreds of cases over the past four decades.

Nothing in the ballot summary for the 2002 amendment mentioned proportionality review. The emphasis was on preventing the court from outlawing any specific execution method.

The court’s closed-door debate in Yacob’s case, judging from the published opinions, must have been heated.

Justice Jorge Labarga, who will succeed Polston in the rotating chief justiceship on July 1, was so alarmed by the implications of the dissent that he wrote separately to rebut it.

Despite the California case, he said, the U.S. Supreme Court has “emphasized many times that the concept of proportionality is central to the Eighth Amendment,” and that the death penalty “must result, if at all, from individualized sentencing…

“As a court, and as individual justices, we are called upon to either affirm or reverse the most severe penalty that ever can be imposed on a human being,” Labarga wrote.

He declared that unless the U.S. Supreme Court flatly forbids it, he will continue to practice proportional review “in every case in which I am called upon to place my judicial imprimatur on a sentence of death.

“It is my fervent hope,” he concluded, “that this court will also continue to do so as a body.”

But that hope could be dashed if Gov. Rick Scott is re-elected. A proposed constitutional amendment would allow him to pack the court before leaving office.

Scott’s predecessor and current challenger, Charlie Crist, took care to balance his Supreme Court appointments. He’s responsible for Canady and Polston, but also for Labarga and another moderate, James E. C. Perry.

Nothing about Scott’s judicial appointments so far reflects any preference for balance.

Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives at Waynesville, North Carolina. Column courtesy of Context Florida.