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IMPOSITION OF THE DEATH PENALTY IN FLORIDA
Report for use in litigating
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James Morgan v. State of Florida
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by
Victor L. Streib
Professor of Law
June 30, 1991
©
Victor L. Streib
9, 1991
Author’s Statement
This report covers the history and current use of the death
penalty for crimes committed while under age sixteen or younger
throughout the United States but particularly in Florida. The
contents of this report are based upon information accumulated by
this reporter since 1975 from research on the juvenile death
penalty.
The results of this sixteen-year research project are
published in several academic and professional journal articles
and most generally in V. STREIB, DEATH PENALTY FOR JUVENILES
(Indiana University Press, 1987; 2d ed. 1992 (in preparation)).
This research has been relied upon repeatedly by a wide variety
of governmental agencies (see, e.g., Thompson v. Oklahoma, 487
U.S. 815, 828 n.27, 832 ns. 36 & 37 (1988) (plurality opinion by
Justice Stevens); and Stanford v. Kentucky, 492 U.S. 361, 368,
373 (1989) (plurality opinion by Justice Scalia). This reporter
has presented various facets of this research to Committees of
the United States Senate, the United States House of
Representatives, and several state legislatures, including that
of Florida.
For this focused report on Florida, the reporter has gone
back to his files on Florida cases both to verify previously
reported Florida information and to add information not published
anywhere previously. The information reported herein is current
as of June 30, 1991, and as complete and accurate as this
reporter’s research can provide. No other Florida cases are
known to this reporter other than the ones reported and described
in this report.
FINDINGS
The findings of this research report are listed in summary
form with a brief explanation following and expanding upon each
summary point made. Following roughly a chronological format,
the findings first report data as to past executions, then as to
recent sentences, and finally as to those currently under
sentences of death. The conclusion, flowing unavoidably from
these findings, is that Florida’s death penalty for persons age
sixteen and younger at the time of their crimes has been
abolished in fact for all cases except that of James Morgan.
EXECUTIONS:
1. Of the approximately 17,000 executions in American history,
only 128 (1%) were for crimes committed at age sixteen or
younger.
Executions of juveniles have always been rare throughout
American history. Executions of the very youngest, those age
sixteen or younger at the time of their crimes, have been the
very rarest, accounting for less than 1% of all executions.
These rare executions began with the hanging of sixteen-
year-old Thomas Graunger in Massachusetts in 1642 and ended with
the electrocution of sixteen-year-old Leonard Shockley in
Maryland in 1959. Just over half (71/128) of these executions
have occurred since 1900. Such executions ended in 1959, and
none have occurred anywhere in the United States in the past
thirty-two years.
Of these 128 very young offenders, only about one quarter of
them were white but 121 (97%) of them were male. For the victims
in these 128 cases, about 90% were white and about 60% were
male. The typical pattern in these cases, then, is the black boy
of sixteen or slightly younger who murders a white male victin,
or rapes and/or murders a white female victim.
2. Of the approximately 400 executions in Florida’s history, only
nine (2%) were for crimes committed while age sixteen or younger.
Florida’s experience with the execution of very young
offenders has followed the national pattern fairly closely.
Table One (see next page) sketches some key facts about the
relevant Florida executions. The nine executions began in 1910
and ended in 1954.
Eight of the nine persons executed were black, and all were
boys. All of their victims were white, and all but one (a county
sheriff) of the victims were females. Five cases involved the
murder of a white female, three involved the rape of a white
female victim, and one involved the murder of a white male
victim. Florida thus fits the national pattern of black boys
being executed for crimes against white victims.
TABLE ONE
ACTUAL EXECUTIONS IN FLORIDA FOR CRIMES
COMMITTED WHILE AGE SIXTEEN OR YOUNGER
Age at
Date of Name of Time of
Execution Offender Crime Race Crime Victim
5-6-1910 Hanchett, 14 White Murder White female
Irving (age 15)
4-27-1927 Ferguson, 14 Black Rape White female
Fortune (age 8)
9-16-1935 Hasty, 16 Black Murder White female
Monroe (adult)
12-29-1941 Clay, 15 Black Murder White female
Willie (age 59)
12-29-1941 Powell, 15 Black Murder White female
Edward (age 59)
12-29-1941 Walker, 14 Black Murder White female
Nathaniel (age 59)
10-9-1944 Davis, 16 Black Rape White female
James (age 22)
9-28-1954 Johnson, 16 Black Murder White male
Orion (Sheriff)
11-8-1954 Beard, 16 Black Rape White female
Abraham (adult)
Of the sixty-six executions in Florida since 1955, none were
3.
for crimes committed at age sixteen or younger.
Following the 1954 execution of Abraham Beard (see Table One
above), Florida executed an additional thirty-nine persons during
that pre-Furman era, ending with the 1964 execution of Emmett
Blake. Florida recommenced executions with the 1979 execution of
John Spinkellink. A total of twenty-seven persons have been
executed in Florida in the post-Furman era, the most recent as of
this writing being that of Bobby Francis on June 25, 1991.
However, this total of sixty-six executions in Florida since 1955
has not included any for crimes committed while age sixteen or
younger.
Florida’s experience both relects the national experience
and in many ways establishes Florida as a leader in the death
penalty during the second half of this century. Florida quietly
phased out executions in the mid-1960s but reacted expeditiously
when Furman effectively threw out the Florida death penalty
statute. Florida led the way in enacting a new, post-Furman
death penalty statute and in returning to executions.
However, despite a handful of death sentences for very
youthful offenders (see next section), Florida never returned to
its pre-Furman practice of executing then. Regardless of
apparently continuing legal authorization under its post-Furman
statute, Florida in fact ended its practice of executions for
crimes committed while age sixteen or younger in 1954, a time
still early in Eisenhower’s first term as president, a time
before most of the practicing attorneys in the United States were
even born.
DEATH SENTENCES IMPOSED DURING CURRENT ERA, 1973-PRESENT:
4. Of the approximately 4,387 death sentences nationwide, only
thirty-three (1%) were for crimes committed at age sixteen or
younger.
The Furman decision in mid-1972 effectively ended the death
penalty at that time nationwide. However, states such as Florida
and others began almost immediately to enact new, apparently
valid death penalty statutes. By January 1, 1973, sentencing of
offenders began to occur at an accelerating pace and has
continued through the present time (June 30, 1991). Table Two on
the next page arrays these data by year.
During this eighteen-and-one-half-year period, approximately
4,387 death sentences were imposed throughout the United States.
Only thirty-three of those sentences, less than 1%, were imposed
for crimes committed while age sixteen or under. Twenty-six of
them were outside of Florida and were scattered across fourteen
states ranging from Arizona to Pennsylvania and from Louisiana to
Nebraska. Florida was the leader with seven such sentences,
followed by Alabama with five and Louisiana with four.
5. Of the approximately 578 death sentences in Florida, only
seven (1%) were for crimes committed at age sixteen or younger.
During this eighteen-and-one-half-year period, Florida has
imposed about 578 death sentences upon offenders of all ages,
only 13% (578/4,387) of the total nationwide. During the same
period, Florida has imposed seven death sentences for crimes
committed while age sixteen or younger, 21% (7/33) of the
nationwide total for such sentences.
As Table Two indicates, however, Florida was the clear
leader in this practice only during the unsettled period from
1973 through 1977. In fact, prior to James Morgan’s first death
sentence (imposed on December 30, 1977), Florida had accounted
for three (38%) of the eight sentences nationwide for crimes
committed while under age sixteen. In striking contrast, for the
remainder of the current era from 1978 though the present,
twenty-four such sentences were imposed nationwide but only three
(13%) were in Florida. Most tellingly, all three of those most
recent Florida sentences were imposed upon James Morgan.
When the total of four death sentences for James Morgan are
removed from the data, the watershed year of 1977 becomes
obvious. As of January 1, 1978, Florida judges and juries ceased
to impose the death sentence for any crimes committed while age
sixteen or younger, except upon one person -- James Morgan. And
for the ensuing thirteen and one-half years, that policy has been
followed in every jurisdiction in Florida. Only James Morgan has
received any of these death sentences.
© TABLE TWO
DEATH SENTENCES IMPOSED FOR CRIMES COMMITTED WHILE AGE
SIXTEEN OR YOUNGER, JANUARY 1, 1973 TO JUNE 30, 1991
All Jurisdictions Florida
Total Offenders Total Offenders
Death Age 16 Death Age 16
Year Sentences & Less Sentences & Less
1973 42 ) (0%) 12 ) (0%)
1974 151 1 (1%) 24 1 (4%)
1975 299 4 (1%) 30 1 (3%)
1976 234 0) (0%) 29 ) (0%)
1977 140 4 (3%) 25 2* (8%)
1978 187 1 (1%) 32 ) (0%)
1979 157 1 (1%) 12 ) (0%)
1980 185 2 (1%) 29 ) (0%)
1981 239 2 (1%) 24 1* (4%)
1982 274 1 (0%) 39 ) (0%)
1983 261 4 (2%) 35 ) (0%)
| 1984 292 3 (1%) 38 ) (0%)
1985 288 2 (1%) 27 1* (4%)
1986 315 4 (1%) 39 ) (0%)
1987 304 1 (0%) 44 fe) (0%)
| © 1988 309 0 (0%) 42 0 (0%)
1989 250 ) (0%) 37 0) (0%)
1990 300** 3 (1%) 40** 1* (3%)
1991 150** 0 (0%) 20%** ) (0%)
Totals: 4,387%** 33 (1%) 578%* 7 (1%)
* One of the Florida death sentences in 1977, 1981, 1985, and
1990 was that of James Morgan.
** Estimates; final figures not yet available.
6. Of the seven death sentences in Florida for crimes committed
while age sixteen or younger, the last four were imposed on James
Morgan.
Table Three lists the four individuals who have received the
seven Florida death sentences since 1973 for crimes committed
while age sixteen or younger. The first three such sentences
were imposed on persons other than James Morgan. These occurred
during the mid-1970s, a period of great turmoil in death penalty
law and practice both nationally and in the State of Florida.
All three of these sentences were reversed within a few years of
their imposition.
Beginning with James Morgan’s first death sentence on
December 30, 1977, the Florida death sentence for crimes
committed while age sixteen or younger has been reserved
exclusively for Morgan. The result of this practice in Florida
is that James Morgan (1) has been sentenced to death since 1973
more times than all other persons his age combined, and (2) has
been the only person his age in the entire State of Florida to be
sentenced to death since the end of 1977.
TABLE THREE
FLORIDA DEATH SENTENCES IMPOSED FOR CRIMES COMMITTED
WHILE AGE SIXTEEN OR YOUNGER, JANUARY 1, 1973 TO JUNE 30, 1991
Name of Age at Ultimate
Year Offender Crime Race Disposition
1974 Vasil, 15 White reversed
George in 1979
1975 Brown, 16 Black reversed
Henry in 1979
1977 Ross, 15 Black reversed
Frank in 1980
1977 Morgan, 16 White reversed
James in 1981
1981 Morgan, 16 White reversed
James in 1984
1985 Morgan, 16 White reversed
James in 1989
1990 Morgan, 16 White now on
James death row
7. Of the total of approximately 360 death sentences imposed in
Florida since James Morgan’s first death sentence on December 30,
1977, Morgan has been the only person sentenced to death in
Florida for a crime committed at age sixteen or younger during
this entire thirteen-and-one-half-year period.
As Table Two above indicates, from 1978 through the first
half of 1991, Florida has continued to impose death sentences on
a wide variety of offenders at a high rate. By 1982, the death
sentencing rate in Florida had leveled off at about forty per
year and has continued there until the present. From this death
sentencing pattern as well as from a host of other indicators, it
seems undeniable that Florida judges and juries remain quite
willing to sentence convicted murderers to death when
appropriate.
By any measure, Florida and Texas are seen as the two
leaders among the many death penalty states. However, Texas has
prohibited by statute the death penalty for crimes committed
while age sixteen or younger, and Florida has accomplished the
same thing by a universal if informal consensus across the state.
The sole exception to this in Florida is the case of James
Morgan. The sentencing pattern in Morgan’s case is completely
unmatched by any other case in Florida.
CURRENTLY ON DEATH ROW:
8. Only eight (0.3%) of the approximately 2,500 persons now on
death row were age sixteen or younger at the time of their
crimes.
From the 4,387 death sentences imposed during the current
era beginning in 1973, only about 2,500 persons remain under
sentences of death as of June 30, 1991. And, of the thirty-three
death sentences imposed for crimes committed while age sixteen or
younger, only eight persons remain under sentences of death.
These eight persons constitute only three-tenths of one percent
of the total death row population. Brief information about each
of their cases in presented in Table Four on the next page.
The fact that such very young offenders constitute such a
miniscule portion of the total death row population is a result
of two major factors. First, as was discussed above, the
sentencing rate nationally for such offenders has been extremely
low, less than one percent (33/4,387) of all death sentences.
Second, even for those very few receiving a death sentence, the
reversal rate on appeal and collateral proceedings has been
extremely high. In fact, almost every such sentence imposed more
than five years ago has now been reversed. The only exception is
that of Kevin Hughes in Pennsylvania, and his mental problems
have put his case on hold for the time being.
Most tellingly, none of the thirty-three such sentences
Since 1973 have resulted in an execution as of yet. The clear
national pattern in cases of crimes committed while age sixteen
or younger is that they almost never result in a death penalty,
and the very few that do are reversed on appeal or collateral
review within a few years.
TABLE FO
PERSONS UNDER SENTENCES OF DEATH FOR CRIMES
COMMITTED WHILE AGE SIXTEEN OR YOUNGER, JUNE 30, 1991
Alabama
Flowers, Clayton Joel: White male; 15 at crime and now age 18;
murder of white female age 19 in Bay Minette (Baldwin County) on
6-5-88; sentenced on 2-23-90.
Hart, Gary Davis II: Black male; age 16 at crime and now age 18;
robbery and murder of white male age 22 in Mobile on 8-12-89;
sentenced 5-9-90.
Lynn, Frederick: Black male; 16 at crime and now age 26;
burglary and murder of elderly white female in Eufaula on 2-5-81;
sentenced on 5-31-83 and 4-9-86.
Florida
Morgan, James A.: White male; age 16 at crime and now age 31;
murder of white female age 66 in Martin County on 6-6-76;
sentenced on 12-30-77, 12-7-81, 6-7-85, and 2-2-90.
Louisiana
Dugar, Troy: Black male; 15 at crime and now age 20 (DOB: 5-1-
71); robbery and murder of white male in Calcasio Parish on 10-
26-86; sentenced on 5-1-87.
Missouri
Wilkins, Heath A.: White male; 16 at crime and now age 22 (DOB:
1-7-69); robbery of store and murder of white female age 26 in
Avondale on 7-27-85; sentenced on 6-27-86.
Oklahoma
Sellers, Sean Richard: White male; 16 at crime and now age 21
(DOB: 5-18-69); murder of white male age 35 in Oklahoma City on
9-8-85 and murder of mother age 32 and stepfather age 43 in
Oklahoma City on 3-5-86; sentenced on 10-2-86.
Pennsylvania
Hughes, Kevin: Black male; 16 at crime and now age 28; rape and
murder of black female age 9 in Philadelphia in 1979; sentenced
on 10-27-83.
9. Of the approximately 300 persons now on death row in Florida,
only James Morgan was age sixteen or younger at the time of his
crime.
The striking national pattern described above has been even
exceed in Florida. Florida trails only Texas and perhaps
California in the total number of persons currently under
sentences of death, with the present Florida death row population
hovering around 300 persons.
Morgan stands alone as the only one sentenced to death for a
crime committed at age sixteen or younger. In fact, as described
in Table Three above, the last comparable person (Frank Ross) to
reside on Florida’s death row left there in 1980. James Morgan
has occupied his unique status on and off again for eleven years,
joined by none of his peers.
CONCLUSIONS:
10. The death penalty in Florida for crimes committed while age
sixteen or younger has totally disappeared for everyone except
James Morgan.
The findings from this research could not be clearer.
Except for the case of James Morgan, Florida has abolished in
practice the imposition of the death penalty for crimes committed
at age sixteen or younger. The manner in which this abolition
has taken place is indicative of extraordinarily widespread
concurrence in this abolition. It did not come from a singular
act of the legislature or ruling by a court. With neither
mandate nor fanfare, the death penalty for such very young
offenders just faded away in 1977, never to reemerge. And this
has been a total, statewide abolition, again excepting Morgan’s
case, with absolutely no such death sentences being imposed by
any trial court in Florida since 1977.
Against this universal statewide practice over thirteen and
one-half years, the four death sentences for James Morgan stand
out in extraordinary contrast. In practice if not in law, the
death sentence in Florida for crimes committed while age sixteen
or younger has been reserved for only one person -- James Morgan.
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