On May 22, the Florida Supreme Court issued a ruling that could lead to people with intellectual disabilities being executed by the state. Justice Jorge Labarga, the only dissenter, warned that the decision undermines the constitutional ban on such executions. 

In 2014, the U.S. Supreme Court struck down Florida's standard for deciding if an inmate had a disability, which was based only on IQ score, and required the state to adopt a broader, more flexible approach. The Court noted that other states had rejected Florida's "rigid" test. "States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects," it said.

But last month, Florida's high court decided that this ruling doesn't apply retroactively, and the state can execute people who were deemed "competent" under the previous, unconstitutional standard. Stephen Harper, head of the Florida Center for Capital Representation, said he was "shocked at the court's audacity and, frankly, its meanness."

Florida can now execute someone who would be ineligible for a death sentence today, as long as they were determined to not have an intellectual disability before May 27, 2014, the date of the U.S. Supreme Court's decision. Labarga's dissent called this an "arbitrary result."

The other justices decided that the constitutional ban on executing people with mental disabilities didn't apply retroactively, because it wasn't a "development of fundamental significance." Their decision described the U.S. Supreme Court's 2014 decision as merely a "refinement" that "more precisely defined the procedure ... to determine whether a person facing the death penalty is intellectually disabled."

The Southern Center for Human Rights says that a disproportionate number of inmates on death row suffer from mental illness or an intellectual disability. Every Southern state, except for West Virginia, can sentence a defendant to death. But criminal justice reformers across the ideological spectrum support abolishing the death penalty.

The recent ruling is the second time this year that the Florida Supreme Court has backtracked on a crucial death penalty issue. On Jan. 23, the court overturned another 2016 decision and ruled that a jury's death sentence doesn't have to be unanimous. A state law still requires unanimous death sentences, but lawmakers are now free to repeal it. 

Labarga was also the sole dissenter in that case. He called the ruling "a giant step backward" and said, "Florida holds the shameful national title as the state with the most death row exonerations … Given this history, there is every reason to maintain reasonable safeguards for ensuring that the death penalty is fairly administered."

In that case, the justices announced a new, lower standard for deciding when to overturn their previous decisions. Before this year, the court would overrule previous decisions only if it had a good reason. But the new court will overturn its own decisions "when we are convinced that a precedent clearly conflicts with the law."

DeSantis and the Federalist Society 

Earlier this year, a lawyer in the office of Republican Gov. Ron DeSantis addressed a gathering of the Federalist Society, a group of conservative and libertarian lawyers. He said that adherence to the group's ideology is the "singular test" for the administration's nominees. The lawyer also quoted a group of judges, all DeSantis appointees, as saying that "we all think alike."

When he took office in 2019, DeSantis had two vacancies to fill on the Florida Supreme Court. He relied on the Federalist Society, whose members occupy seats on high courts around the country, to help him choose. The potential appointees were interviewed by Leonard Leo, a leader in the group and the founder of a new group that opposes voting by mail expansion and pushes the myth of widespread voter fraud. 

In Florida, judicial appointees are chosen from a list of the most qualified candidates, composed by a nominating commission. The governor chooses a majority of the commission, under current law, and DeSantis has stacked it with Federalist Society members. 

The governor filled the two empty seats with justices affiliated with the Federalist Society, creating a new conservative majority that began to swiftly overrule its prior decisions. The court could rule soon on issues involving charter schools, voting rights, and assault weapons. Republican legislators are pushing a bill that requires parental consent for minors to have an abortion. A recent column in the Tampa Bay Times noted that the high court previously ruled a similar bill unconstitutional, but legislators are "hoping to test that precedent."

DeSantis' first two appointees were soon elevated to a federal appeals court by the president, who is also advised by the Federalist Society on which judges to choose. And a third justice reached the mandatory retirement age, giving DeSantis three more appointments to the seven-member high court.

Last week, the governor appointed John Couriel and Judge Renatha Francis to the court. The nominees, who are both 42 years old, will bring much-needed racial diversity to the state's appellate courts. Francis will become the state's only black justice, and Couriel is the son of Cuban immigrants. Both appointees disclosed links to the Federalist Society.

Francis cannot take office until September, because the state constitution requires that justices have practiced law for 10 years. Adam Richardson, a Florida lawyer and contributor to the online magazine Slate, argued such an appointment was illegal and that DeSantis had also violated the constitutional deadline to fill the two vacant seats. But only the governor's new state Ssupreme Ccourt can define the state constitution's limits on executive power.