Unless a federal court intervenes, on June 15, Florida plans to execute Duane Owen, a severely mentally ill man who has spent over 30 years on death row. Recent litigation related to Owen’s competency for execution highlights the state’s broken procedures for determining whether a prisoner is sane enough to be executed.
The U.S. Supreme Court has made clear that the Eighth Amendment prohibits states from executing a prisoner who is insane, or “a prisoner whose mental illness prevents him from ‘rational[ly] understanding’ why the State seeks to impose that punishment.”
In Ford v. Wainwright (1986), the court held that Florida did not provide an adequate process for prisoners raising a claim of insanity for execution. Shortly after Ford, Florida death-row prisoner Nollie Martin raised a claim of insanity with an impending execution, and the Florida Supreme Court adopted Florida Rule of Criminal Procedure 3.811 on an emergency basis.
Under Rule 3.811, counsel for the condemned must invoke the process by writing to the governor and requesting an examination. The governor then temporarily stays the execution and appoints a commission of doctors to examine the condemned. After the examination, the commission submits a report to the governor, who then makes a determination whether the condemned is sane and the execution shall proceed, or the condemned is insane and shall be committed to a mental institution run by the Department of Corrections. If the governor determines the prisoner is sane, counsel for the condemned may seek review in state court.
The Rule 3.811 process cannot be invoked until the prisoner is under an active death warrant. Before Owen, six men in Florida had invoked this process. All six were executed. Before Owen, the last time this process was invoked was in 2013.
Owen’s life has been fraught with trauma and mental illness. The trial court that heard Owen’s case in 1999 said Owen’s childhood was “one of the more horrific childhoods” the court had seen. He spent his first 13 years living in Indiana with parents who abused him and his brothers consistently. At age 11, his mom died from cancer; two years later, his dad, a heavy alcoholic, died by suicide. After his parents died, Owen moved to an orphanage in Michigan, where the abuse continued. He began using drugs and alcohol at a young age.
Throughout his childhood, Owen also started experiencing gender dysmorphia, for which he was unable to seek support. Shortly after leaving the orphanage upon becoming an adult, Owen suffered brain damage when a car fell on his head.
Eventually, Owen developed fixed delusions. He believed he was a female trapped in a male body. These delusions, which Owen still experiences today, affected Owen’s behavior and motivated the crimes for which he was sentenced to death in the mid-1980s. Today, Owen believes that his female victims’ souls live inside him.
Gov. Ron DeSantis signed a warrant scheduling Owen’s execution on May 9, just a week before he signed sweeping anti-transgender legislation into law. Shortly after the warrant, Owen’s counsel invoked the Rule 3.811 process.
As required by the rule, on May 22, DeSantis appointed a commission to examine Owen; the commission consisted of Dr. Tonia Werner, Dr. Wade Myers, and Dr. Emily Lazarou. Werner had previously served on similar commissions reviewing prisoners’ sanity approximately five times, and Myers had previously served on similar commissions approximately 10 times. Neither has ever found a prisoner insane for execution. While this was Lazarou’s first time serving on a commission for this purpose, she currently works at a Florida prison and was trained by Myers.
After spending 100 minutes with Owen, the commission issued a report dated May 24. In the report, the commission recites Owen’s delusions that he has maintained for years and then concludes that Owen “has no current mental illness” and is “feigning psychopathology … to avoid the death penalty.” After receiving the commission’s report, on May 25, DeSantis determined Owen is sane to be executed and lifted the temporary stay.
Owen sought review of the governor’s determination in state court. Owen’s counsel, who attended the examination, testified that “the evaluation became more of an interrogation than a clinical interview” and involved the doctors yelling at Owen and becoming hostile when Owen expressed his delusions. In an affidavit, a doctor who examined him in the ’90s stated Owen “is still one of the most mentally ill of all people [she’s] seen during [her] over 40-year career.”
After a two-day evidentiary hearing, at which Owen sat through testimony about his mental illness and impending death, the trial court determined Owen “has no mental illness” and is sane to be executed. The court discredited several other doctors’ opinions that Owen has severe mental illness and does not understand the reason for or consequences of his pending execution.
Owen appealed to the Florida Supreme Court, which denied relief Friday — just one day after briefing closed. The court cited its prior decisions in similar cases, which establish that the standard for sanity for execution is a mere understanding of “the connection between [the] crime and the punishment [the condemned] is to receive for it.”
As of Wednesday afternoon, Owen has claims pending at the U.S. Supreme Court and in the U.S. District Court for the Southern District of Florida.
The litigation surrounding Owen’s competency for execution raises serious concern about the adequacy of Florida’s procedures for ensuring prisoners’ protections under the Eighth Amendment are upheld — or, at the least, adequately reviewed. Considering the apparent bias of the state’s doctors, the high standard for establishing sanity for execution, and the fact that the process has never resulted in relief, the Rule 3.811 process appears to be nothing more than a formality.
Melanie Kalmanson, a member of The Florida Bar since 2016, clerked for Florida Supreme Court Justice Barbara J. Pariente in 2016-19. She currently serves on the steering committee for the American Bar Association’s Death Penalty Representation Project and writes the blog, “Tracking Florida’s Death Penalty.”
