Barwick complains about warrant process.
Briefing in the Florida Supreme Court on Barwick's claims related to his execution is now complete. This post takes a closer look at Barwick's claim related to the warrant process.
With the filing of a Reply Brief on Friday afternoon, Barwick’s briefing at the Supreme Court of Florida is now complete. It’s likely we’ll see a decision next week.
Arguments Presented
Barwick has presented three issues in his appeal pending at the Supreme Court of Florida:
All of the briefing can be found here. As always, I defer to Florida Court Review for full coverage. This post has the full background of Barwick’s case.
Discussing Issue I: The Warrant Process
I did want to comment on Barwick’s argument presented in Issue I because it’s an issue I’ve spent a lot of time thinking about, and it’s not always raised in warrant briefing. In his Initial Brief, Barwick argues:
Mr. Barwick has alleged that the extraordinarily compressed warrant litigation schedule–taken together with specific circumstances impeding his ability to fully and fairly litigate his death warrant–violated his due process right to a meaningful opportunity to be heard.
While Barwick raises the argument based on case-specific circumstances, the premise of the argument applies generally. (Of course, there are likely strategic reasons for Barwick raising these issues on an as-applied basis since the Court obviously doesn’t think the warrant process generally causes constitutional issues since it’s partaken in the process without issue several times as of late.)
“A Sprinting Marathon”
The warrant process is bananas. Period.
Those on death row are there for decades. Even after the direct appeal and initial postconviction, they often raise and litigate several additional claims.
Then one day, without warning, the Warden shows up with a death warrant saying “They’ve scheduled your execution thirty days from now. Time to go.” The attorneys likewise do not have any warning.
NOTE: 30 days has been the average for the past several years in Florida. Some have been a bit longer. Some have been a bit shorter. Gov. DeSantis signed the warrant for Barwick’s execution on April 3, 2023, setting his execution for May 3, 2023. That’s exactly 30 days.
Within those 30 days, the condemned—by and through his attorneys—must file, litigate, and exhaust his final warrant- and execution-related claims. As Maria DeLiberato, Executive Director of Floridians for Alternatives to the Death Penalty has explained, it’s like “a sprinting marathon” for defense attorneys, who race against the clock doing everything they can to try to save their client’s life.
For everyone involved, it is a difficult time. After I saw this process first-hand while working at the Court, I published an article about this process. Here’s the abstract:
For as long as the death penalty remains a viable punishment in the United States, safeguarding defendants’ rights from sentencing through execution is crucial. As part of that effort, this Article focuses on a portion of the capital appellate process that is often overlooked and, in practice, effectively divests defendants of significant constitutional claims.
As illustrated by the Supreme Court’s recent decisions in Bucklew v. Precythe and Dunn v. Price, defendants face a significant procedural predicament in raising warrant- and execution-related claims. On one hand, courts have explained that these claims are not ripe, or are premature, when raised before a death warrant is issued. On the other hand, as in Bucklew and Dunn, when the defendant is under an active death warrant, courts are skeptical of the merits of these claims and often determine the defendant raised the claim too late, suspecting a game of delay. Since defendants are faced with increasingly short and arbitrary warrant periods, this Article explains, courts have essentially precluded defendants from properly raising and being heard on these critical issues.
The full article can be accessed here.
30 days is hardly enough time to fully litigate any claim, much less claims related to whether an execution will abide by the Constitution. In that time, here’s everything that must occur with respect to just one claim (not to mention everything else going on at the same time, which I wrote about here):
Condemned, by and through attorneys, must draft and file claims (usually through a successive postconviction motion);
Trial court must review the claims, oftentimes requiring several hearings but usually without an evidentiary hearing;
Trial court must issue a ruling on the claims;
Condemned, by and through attorneys, must file a Notice of Appeal to the Florida Supreme Court (FSC);
Trial court clerk must send the record to the FSC;
Condemned, by and through attorneys, must file an Initial Brief to the FSC;
State must file an Answer Brief to the FSC;
Condemned, by and through attorneys, must file a Reply Brief to the FSC;
FSC chooses whether to grant an oral argument - usually not;
FSC must issue a decision on the claim;
Condemned, by and through attorneys, must file a petition for writ of certiorari to the U.S. Supreme Court (USSC);
State must answer the petition at the USSC; and
The USSC must rule on the petition.
At any time, any court can grant a stay. But it’s rare.
Interestingly, the 30-day warrant periods that have been the norm for years is not what is provided for in Florida Statutes. Section 922.052, Florida Statutes, suggests that the warrant period should, instead, be a much more reasonable 180 days:
My thoughts are with everyone involved in the execution process.