Mother Jones; Charlie Neibergall/AP; Richard Graulich/Palm Beach Post/ZUma
In the lead-up to his recently announced presidential run, Gov. Ron DeSantis ramped up Florida’s use of the death penalty and shepherded through two laws expanding capital punishment. The moves, part of a broader attempt to appear tough on crime, have helped turned the state into an executions epicenter. The latest planned killing is set for Thursday evening, when Florida is scheduled to give Duane Owen a lethal injection despite credible evidence that he is not sane enough to be executed.
Owen’s will be the fourth death row inmate killed since February, the first spate of executions to take place since 2019 due to the pandemic. His planned execution highlights how the system DeSantis champions condemns mentally ill Floridians to death with little recourse to even raise insanity claims.
Owen, 62, endured years of abuse as a child, a brain injury, and mental illness, according to a 1999 court issued sentencing order. He has also been diagnosed with gender dysphoria. Until his parents’ deaths—his mother passed when Owen was 11, his father committed suicide when he was 13—he grew up in a home filled with sexual abuse. Owen then entered an orphanage where where sexual abuse was also rampant and he began using drugs and alcohol. The 1999 sentencing order notes that Owen had suffered “one of the more horrific childhoods” the court had seen. In 1981, a jacked-up car fell on his head, causing brain damage. In 1984, he assaulted and killed two women. He has repeatedly told psychiatric experts examining his mental state that he thought the assaults would help him into a woman.
In Florida, death row prisoners must be able to understand both that their execution will be deadly and why it is happening—a standard based on Supreme Court precedent. A neuropsychologist who evaluated Owen last month concluded that his “gross delusions stemming from his schizophrenia are so far removed from reality that they foreclose any possibility of a rational understanding of the reason for his execution.” The doctor added that Owen has an “ongoing psychotic delusional belief system that has never changed but has only been enhanced and became more embedded over time.” But three experts who DeSantis appointed to write a report on Owen’s case ahead of his execution found he suffered “no current mental illness” and was “feigning psychopathology … to avoid the death penalty.” Based on that report, DeSantis determined him sane for execution.
Insanity claims are not brought frequently by defendants attempting to dodge the death penalty. In Florida, just six death row inmates prior to Owen have raised the issue since 1986, when the US Supreme Court allowed such challenges—the last being a decade ago, according to Melanie Kalmanson, a Florida attorney who has followed Owen’s case on her blog, Tracking Florida’s Death Penalty. Florida procedures governing such claims are extremely rushed; inmates and their legal teams cannot file an insanity claim until a death warrant has been signed, which typically happens about 30 days before the execution date. The timeline ensures a mad rush, as courts sort out competing claims. In all six cases prior to Owen, the inmates failed and were executed.
Owen’s timeline stands out, even compared to those inmates, who were given months or even up to a year to pursue their insanity pleas. But with Owen, courts issued rapid briefing schedules and no stays of execution, leaving him just weeks to litigate his claims. “Owen’s case, to me, has just been pushed through inordinately quickly,” Kalmanson says. On Wednesday, the US Supreme Court declined to stay Owen’s execution, clearing the way despite the questions surrounding his mental state.
As DeSantis seeks the White House, he’s relying on the crime-fighting image he cultivated as governor—nurtured with illegal stunts, like removing an elected prosecutor whom he alleged was soft on criminals. In February, DeSantis sought to create a spectacle, touring New York, Pennsylvania, and Illinois to tout his anti-crime stance and denounce rising crime in Democratic-run cities. (Florida’s murder and crime rates are actually higher than New York’s.)
His eager embrace of the death penalty includes signing a bill this April that would allow juries that have not come to agreement to still hand down death sentences. While Florida’s new law, which allows 8-4 majorities to mete out fatal sentences, is likely to face constitutional challenges under the Sixth and Eighth Amendments, it is set to make the state national outlier. Before the law, only Alabama allowed non-unanimous juries to hand down death sentences, with 10-2 majorities; Missouri and Indiana allow judges to authorize capital punishment if a jury is divided.
The practice of allowing non-unanimous juries to convict is rooted in the Jim Crow era, when states, finally forced by federal action to impanel Black jurors, responded by unraveling unanimous verdict requirements so their opinions could be sidelined. As the American Bar Association has determined, unanimity prompts deeper jury room discussions and helps avoid convicting the innocent. Historically, that’s been a major problem in Florida: According to the Death Penalty Information Center, its justice system has seen 30 death row exonerations, more than any other state. Most of the people cleared of these crimes had been sentenced under non-unanimous juries.
In May, DeSantis signed legislation to allow the death penalty for certain sex crimes against children. The law is unconstitutional; in 2008, the US Supreme Court ruled that giving the death penalty to child rapists violates the Eighth Amendment’s prohibition on cruel and unusual punishment. But running afoul of precedent may be the point: DeSantis and the GOP-controlled legislature want to give the current Supreme Court, with its 6-3 conservative majority, the opportunity to overturn its prior decision, and expand the death penalty to crimes beyond homicide. To them, an eye for an eye is not enough vengeance.
DeSantis’ reliance on the death penalty follows the playbook used by both parties in the 1980s and 1990s. Bill Clinton famously left the campaign trail in 1992 to oversee the execution of Ricky Ray Rector, who suffered severe brain damage from turning his gun on himself after shooting a police officer. Rector, essentially lobotomized, reportedly set aside a piece of pie from his last meal “for later.”
In recent years, Republican candidates and lawmakers have rerun those paces. Former President Donald Trump executed 13 people while in office—more than any president in 120 years, according to the Associated Press. Now, back on the campaign trail, he’s proposed killing drug dealers and reportedly mused about group executions and firing squads. DeSantis, of course, can’t let himself be outdone by his top rival.
The United States already stands out as the only western democracy still administering the death penalty. DeSantis and Trump would make the country even more of an outlier, allowing the death penalty for less serous crimes and with fewer protections for the innocent or those with severe mental impairment. Owen’s execution would be just a step along that path.
