BY LACEY STUTZ — On September 5, 2012, Florida Gov. Rick Scott signed a death warrant for John Errol Ferguson. Mr. Ferguson, who has been on death row for thirty-four years, was convicted and sentenced to death for eight counts of first-degree murder in 1978. Six of the murders were execution-style killings that occurred during a robbery gone wrong. A few weeks later, Mr. Ferguson killed two other victims who were leaving a church youth group event.
Mr. Ferguson was convicted of serious and devastating crimes, but he also has and continues to suffer from serious mental illness. A Florida circuit court and the Florida Supreme Court both noted that“Mr. Ferguson undoubtedly suffers from mental illness which is documented from the time prior to the murders committed…” Ferguson v. State, 101 So. 3d 362, 367 (Fla. 2012). His most recent filings in the Florida and United States Supreme Court explain that Mr. Ferguson, a paranoid schizophrenic, identifies himself as the “Prince of God” and states that after his death he will ascend to God’s right hand and defend the United States against a communist plot.
After Gov. Scott signed Mr. Ferguson’s death warrant, Mr. Ferguson’s counsel sought post-conviction relief to prevent the execution of their mentally ill client. Mr. Ferguson’s defense team challenged the constitutionality of various facets of Florida’s execution protocol, argued that his clemency proceedings were incomplete, and moved for a competency determination.
Proper clemency proceedings, which act as a final failsafe to prevent unjust punishments, would allow Mr. Ferguson the opportunity to fully present evidence of his severe mental illness. A competency hearing determines whether or not Mr. Ferguson was competent to assist in his defense. Mr. Ferguson’s attorneys argued that they could not establish the inadequacy of his prior clemency proceedings without Mr. Ferguson’s competent assistance. If the Florida courts accepted this argument, Mr. Ferguson’s execution would be delayed at least until the nature and severity of his mental illness was fully established.
A Florida circuit court and the Florida Supreme Court both noted that Mr. Ferguson “may have been entitled to an evidentiary hearing” to determine the adequacy of his clemency proceedings. Id. at 365. But, the Florida Supreme Court found that the clemency challenge was untimely and therefore impermissible. Because the clemency claim was untimely, the court ruled that a competency determination was unnecessary despite the finding that he “undoubtedly suffers from mental illness.” Id. at 367. The Florida Supreme court ultimately refused to stay his execution.
After the denial of post conviction relief in the Florida Supreme Court, Mr. Ferguson’s attorneys continued to fight for their client’s life in the federal court system. The United States Supreme Court refused to stay the execution without discussion. But, on a certificate of appealability, the Eleventh Circuit stayed the execution to determine the legality of his execution in light of the evidence of his mental illness. The Eleventh Circuit’s order did not come a moment too soon–in fact, it was released the day of Mr. Ferguson’s scheduled execution, after, Mr. Ferguson had already finished his last meal.
Florida immediately appealed the stay to the United States Supreme Court, which upheld the Eleventh Circuit’s order without discussion. The Florida Attorney General’s office, which represents Florida in this controversy, described the Eleventh Circuit’s stay of execution as “[a] mockery of the State’s compelling interest in finality” due to the thirty-four years Mr. Ferguson has spent on death row.
The Eleventh Circuit heard oral argument on Mr. Ferguson’s case on November 29, 2012, and has yet to render a decision. In accordance with the United States Supreme Court’s ruling that execution of the mentally insane qualifies as cruel and unusual punishment, Ford v. Wainwright, 477 U.S. 399, 409 (1986), the Eleventh Circuit will likely rule that Mr. Ferguson is entitled to an evidentiary hearing to determine whether his execution is constitutionally permissible.
Although the execution was ultimately postponed by the federal court system, the Florida Supreme Court’s reasoning is concerning because it relies too heavily on a procedural failure. The Florida Supreme Court rejected Mr. Ferguson’s challenge to the adequacy of his clemency proceedings because the claims should have been raised earlier. Furthermore, the Florida Supreme Court ignored the circuit court’s conclusion that Mr. Ferguson might be entitled to an evidentiary hearing to determine the adequacy of his clemency proceedings if the claim was not time barred. Essentially, the Florida Supreme Court based a life and death decision on the timeliness rather than the merits of a claim.
Given the irreversible consequences of the death penalty, timeliness and finality should not determine if the State can or cannot kill you. Certainly, courts have an interest in promoting the efficient use of the appeals process. But, are expediency and finality priorities when there is a risk of executing an individual suffering from severe mental illness? Ethical questions and implications aside, the United States Supreme Court in Ford v. Wainwright, id., decided that executing an insane person is cruel and unusual punishment. Yet, Florida seemingly evades this ruling by permitting the execution of an insane man based on procedural failures.
Mr. Ferguson’s case highlights the absurdity of relying on procedural failures instead of actual facts in making life and death decisions. Although there are situations where a final but flawed decision is necessary, life and death decisions are not one of them.
