Florida, a state known for its retiree-friendly image, is making headlines for a grim reason: executing elderly death row inmates. On June 25, the state put 74-year-old Dusty Ray Spencer to death, marking him as the oldest person executed in Florida since capital punishment was reinstated in 1976, according to the Death Penalty Information Center.
The state has two more executions scheduled: another 74-year-old on July 14 and 80-year-old Dominick Occhicone on July 28, for murders committed four decades ago. This spree has reignited a contentious debate over whether there should be an upper age limit for capital punishment.
Florida is not alone. In 2018, Alabama executed 83-year-old Walter Leroy Moody Jr., and Virginia executed an 83-year-old over a century ago. Nationwide, death rows are aging rapidly. The Death Penalty Information Center found that between 1977 and 2004, only three of 944 executions involved inmates aged 65 or older. But from January 2010 to June 2019, 45 prisoners aged 60 or older were executed.
Critics argue that executing elderly inmates is indecent, as they often suffer from serious health issues and pose no threat to society. “Far removed from the crimes that brought them to death row, the people who will die during Florida’s spree are not the same as they were when they committed their capital crimes,” the original article notes.
The push for age-based exemptions has legal precedent. The American Convention on Human Rights, signed by President Carter in 1977 but never ratified by the Senate, states that capital punishment “shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age.” Other countries, including China, prohibit executing those over 75 at sentencing, except for “exceptional cruelty.”
In the days before his execution, Spencer asked the Florida Supreme Court to recognize a categorical exemption for advanced age, arguing it would violate the Eighth Amendment’s ban on cruel and unusual punishment. The court refused, citing U.S. Supreme Court precedent that only exempts those under 18 at the time of the crime. “No decision from the Supreme Court has read the Eighth Amendment as categorically exempting defendants of advanced age from execution,” the court stated.
The Florida court referenced an earlier case involving Samuel Smithers, another elderly inmate, who argued that executing him “runs afoul of evolving standards of decency.” At that time, the majority of states had never executed anyone 70 or older. But both the trial court and the Florida Supreme Court rejected the argument, and no other court has recognized an age-based upper limit.
U.S. Supreme Court Justice Stephen Breyer came closest in 2017, acknowledging the indecency of “efforts to execute prisoners suffering the diseases and infirmities of old age.” However, he declined to develop a constitutional jurisprudence for the aged, preferring instead to reconsider the constitutionality of the death penalty itself.
While abolitionists focus on ending capital punishment entirely, the immediate crisis in Florida demands action. As the article concludes, until executions are halted for all, the U.S. should follow the American Convention on Human Rights and other nations by sparing elderly inmates. The debate over age limits is far from settled, but the clock is ticking for those on death row.
For context on Florida's political landscape, see our coverage of the Florida Supreme Court's approval of a GOP congressional map and the striking down of Florida's college speech restrictions.
