Today at 6 p.m. the State of Florida will execute Eric Scott Branch at Florida State Prison in Raiford. That is, of course, if the Supreme Court of the United States denies review in his pending cases by then (17-7758, and 17-7825). His applications for stay of execution are docketed at 17A865 and 17A885. The State pauses the execution protocol until the word comes that the high court won’t intervene. Sometimes that happens hours after the scheduled execution time.
Hurst retroactivity–No. 17-7758
It will be interesting to see if SCOTUS intervenes in Branch’s case. Unlike Patrick Hannon, Cary Michael Lambrix, or Mark James Asay, the three executed inmates since Hurst, Branch has an amicus brief supporting him at SCOTUS in his challenge to Florida’s retroactive application of Hurst. We’ll see if that gives extra weight to his cert petition. In a nutshell, the Florida Supreme Court will vacate a death sentence if the jury recommended the death penalty by less than a unanimous vote. But if a non-unanimous sentence was final before June 24, 2002, then the Florida Supreme Court will not vacate that sentence and remand for a new penalty phase. Branch falls into that category, as did Asay and Lambrix. Hannon had a unanimous jury recommend the death penalty. SCOTUS declined to intervene in their cases, and they were executed within an hour or so after the Court declined review.
Mental development–No. 17-7825
In Case No. 17-7825, Branch contends that, although he was 21 at the time of the offense, “his mental functioning was no better than that of a juvenile.” Executing him, then, would violate the Eighth Amendment if the high court accepts his argument that “advancements in the scientific understanding of late adolescent brain development” should make it possible for him to present proof that “his age and particular lack of mental development reduced his culpability and rendered him ineligible for a death sentence.” This drew the support of two amicus briefs, one from Concerned Psychiatrists, Psychologists and Neuropsychologists, and another from The Promise of Justice Initiative. It also drew a response from the State that argued, among other things, that “[o]pposing counsel is not actually seeking an individualized determination of cognitive maturity; rather, he seeks a categorical prohibition on executions of all defendants under the age of 26 or 27 due to their cognitive immaturity.”
Now we wait
It only takes four votes to grant review and stop this evening’s execution. We’ll see if that happens in either case.
We’ll be watching SCOTUS’s order page for updates all day. We’ll tweet what we see, @fla_ct_rev.