Length of time on Florida's death row
Last week, the Florida Supreme Court denied Michael Orme's claim that the 30-year delay between his offense and sentencing is unconstitutional. How long have people been on Florida's death row?
Last week, the Florida Supreme Court (FSC) denied Michael Orme’s claim that the 30-year delay between his offense and his sentencing violates the Eighth Amendment to the U.S. Constitution. This was not the first time the FSC ahs denied constitutional claims related to the time a prisoner has spent on death row.
In light of the Court’s decision, this post reviews other authorities discussing the time prisoners spend on death row between their offense and execution and then analyzes how long the ~300 prisoners on Florida’s death row have been there.
Florida Supreme Court’s Decision in Orme
Michael Orme is on Florida’s death row for a murder that occurred in 1992. Last week, the FSC issued a decision in Orme v. State, Orme’s direct appeal from his second resentencing.
One of Orme’s claims was that the “the 30-year delay between offense and [current] sentencing” violates the Eighth Amendment. Without much analysis, the Court essentially said that the claim is invalid, as it has held several times in the past in other cases:
I defer tofor further coverage on this decision.
Relevant International Human Rights Authority
While the Court’s decision in Orme does not violate any U.S. precedent, there is international human rights authority that says spending twenty years on death row violates international human rights standards. Specifically, the Inter-American Commission on Human Rights wrote in May 2018 related to the case of Russell Bucklew, who was on death row in Missouri:
The referenced provision of the American Declaration states:
“Every person accused of an offense has the right . . . not to receive cruel, infamous or unusual punishment.”
The report makes clear that the time Bucklew spent on death row (more than 20 years) violated the American Declaration, but the report does not make clear the threshold where the delay becomes inhumane. There is some suggestion that it is much sooner than 20 years.
The full report can be found here. Bucklew was executed in 2019.
Retired Justice Breyer of the U.S. Supreme Court expressed similar concern for the extensive time prisoners spend on death row awaiting execution. In Glossip v. Gross in 2015, part of Justice Breyer’s dissent focused on this issue.
Before discussing the harms caused by lengthy delays, Justice Breyer noted that the delay is, in part, a result of the “Constitution’s own demands”:
[T]he Constitution insists that “every safeguard” be “observed” when “a defendant's life is at stake.” . . . These procedural necessities take time to implement. And, unless we abandon the procedural requirements that assure fairness and reliability, we are forced to confront the problem of increasingly lengthy delays in capital cases.
Justice Breyer argued that the length of time prisoners spend on death row between the sentence and execution “create two special constitutional difficulties.” First, Justice Breyer argued that “a lengthy delay in and of itself is especially cruel because it ‘subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.’” On this point, Justice Breyer discussed the conditions under which those on death row are forced to live.
Second, Justice Breyer argued that the “lengthy delay undermines the death penalty's penological rationale.” Here, Justice Breyer discussed the intended deterrent effects of the death penalty and questioned whether these effects are achieved in light of “the fact that . . . very few of those sentenced to death are actually executed, and that even those executions occur, on average, after nearly two decades on death row.”
The late Justice Ginsburg joined the opinion.
Other U.S. Supreme Court justices have also written similar views, to which Justice Breyer referred in his opinion in Glossip.
Florida’s Current Death Row
In light of the Florida Supreme Court’s recent decision in Orme and this background, I decided to look into the data on how long those on Florida’s death row have been there.
Using the data for Florida’s death row list on May 18, 2023, when there were 296 people on Florida’s death row, here’s what I determined:
The median time on Florida’s death row since the “Date of Sentence” is 24.38 years.
The average time on Florida’s death row since the “Date of Sentence” is 22.80 years.
The longest amount of time a current death-row prisoner has been on Florida’s death row is 46.04 years.
Of the 296 people on Florida’s death row, 246 (83.1%) have been there more than 10 years; 180 (60.8%) have been there more than 20 years; and 92 (31%) have been there more than 30 years.
NOTE: The data used is from the Department of Corrections (DOC) death row list and based on the “Date of Sentence” listed. The “Date of Sentence” is not the same as the date the sentence became final for purposes of a Hurst analysis or other legal issues.
As to how the calculation was completed, for a prisoner with sentences of death with different dates, the older sentence was used. For a prisoner with multiple crimes on different dates, only the date for the sentence for first-degree murder was used. For a prisoner with more than one conviction of first-degree murder, only one was counted so as to not skew the data.
There have been three executions so far in 2023.
Donald Dillbeck was executed on February 23, 2023, for crimes that occurred on June 24, 1990. His “Date of Sentence,” according to DOC, is March 15, 1991. He was executed after almost 32 years on death row.
Louis Gaskin was executed on April 12, 2023, for crimes that occurred on December 20, 1989. His “Date of Sentence,” according to DOC, is June 19, 1990. He was executed after almost 33 years on death row.
Darryl Barwick, who is not yet listed on the DOC’s online execution list, was executed on May 3, 2023, for crimes that occurred on March 31, 1986. He was sentenced in January 1987. He was executed after 36 years on death row.