The Florida Supreme Court recently held that the state’s capital punishment statute is unconstitutional. Approximately 380 people sentenced to death under the now-invalidated sentencing scheme remain on death row.[1] While litigation is still pending over whether the decision applies to all Florida death sentences, the Court has clarified that the approximately 150 people who were convicted after the Ring v. Arizona decision in 2002 must have their sentences reconsidered. Roughly one-third of these individuals convicted since 2002 come from just five of Florida’s 67 counties: Duval, Miami-Dade, Hillsborough, Orange, and Pinellas.

This report examines the 48 invalidated death sentences from these five Florida counties.[2] We examined legal pleadings and opinions, trial testimony, and media reports, and consulted with several legal experts in Florida who are familiar with the individuals on death row.

Our research revealed that 63 percent of these individuals exhibit signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred.[3] The pervasiveness of these crippling impairments among Florida’s death row population is significant when evaluating whether the death penalty was the appropriate sentence. Although all murders are gruesome and deserving of serious sanction, the Constitution limits the death penalty to the most aggravated and least mitigated cases. So, for example, the U.S. Supreme Court has held that regardless of the severity of the crime the death penalty cannot be imposed upon a juvenile or an intellectually disabled person, both classes of individuals who suffer from impaired mental and emotional capacity relative to typically developed adults. To do otherwise would be so disproportionate as to violate his or her “inherent dignity as a human being.”

Recognizing this principle, in 2015, the Florida Supreme Court vacated Humberto Delgado, Jr.’s death sentence and remanded the case back to the Hillsborough-based trial court with an order to resentence Delgado to life without parole. The state’s high court noted that six different mental health experts at trial diagnosed Delgado with bipolar disorder, and five agreed on a diagnosis of bipolar disorder with psychotic features. Delgado had been involuntarily committed in the past for serious paranoid and delusional behavior, such as trying to catch demons in mirrors at night and thinking that various famous people were going to kill him. The Florida Supreme Court found Delagado’s death sentence to be a clear and compelling example of a disproportionate punishment.

Even if one stipulates that the homicides committed by some of the impaired defendants are among the most egregious, someone like Delgado, a severely mentally ill man suffering from delusions and paranoia, cannot meet the culpability threshold necessary to impose a death sentence. What our research reveals, however, is that a substantial majority of the individuals on death row from these five counties in Florida have evidence of a similar level of impairment, which lessens their moral culpability and makes the death penalty constitutionally inappropriate.

Age at the Time of the Offense

In 2005, when the U.S. Supreme Court banned the death penalty for those under the age of 18 at the time of the crime (Roper v. Simmons), the Court explained that “[r]etribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity.” This holding relied in part on scientific facts establishing that youth are less morally culpable than adults because they are more impulsive, less emotionally mature, and more susceptible to external pressures.

Importantly, the Simmons Court noted that these “qualities that distinguish juveniles from adults do not disappear when an individual turns 18.” Indeed, there is now consensus in the scientific community that “the brain isn’t fully mature at 16, when we are allowed to drive, or at 18, when we are allowed to vote, or at 21, when we are allowed to drink, but closer to 25, when we are allowed to rent a car.

In these five Florida counties taken together, six out of 48 (13%) of the individuals were under the age of 21 at the time of their crimes (not old enough to purchase alcohol). While we do not include individuals age 21 and older in our overall calculations, we found that 13 out of 48 (27%) were under age 25 (not old enough to rent a car) at the time of their crimes.

In 2015, Duval County assistant state attorney Bernie de la Rionda obtained a second death sentence against Randall Deviney who was just 19 years-old at the time of the crime and likely endured childhood sex abuse. The trial judge in his first case sentenced him to death despite his “deprived childhood” and even though Deviney committed the crime “under the influence of extreme mental or emotional disturbance.” The Florida Supreme Court reversed and remanded the case for a new trial on Fifth Amendment grounds.

This is not the only case we found where an adolescent who was sentenced to death had evidence of another crippling impairment. In 2008, Orange County prosecutors obtained a death sentence against Dane Abdool, who was 19 years old at the time of the crime, “intellectually limited,” and suffering from hyperactivity, impulse control issues, and according to one expert, delusions.

Intellectual Impairment and Brain Damage

In 2002, the U.S. Supreme Court declared that the death penalty is unconstitutional for individuals with intellectual disability (Atkins v. Virginia) because of their “diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.” These same deficits are also the hallmark attributes of borderline intellectual functioning, traumatic brain injury, and fetal alcohol syndrome.

Our research indicates that 17 of the 48 individual cases (35%) that we examined had evidence of significantly impaired cognitive functioning as evidenced by low IQ scores, frontal lobe damage, or other organic brain damage.

Many of the defendants in this category had both intellectual impairment and brain damage. For example, Donald Banks, sentenced to death in Duval County, suffered from “a deficit in his brain,” and had a low IQ. An expert witness testified that the deficits were found in “frontal lobe functioning, which is responsible for planning, problem solving, and impulse control.”

In another case, Richard Robards, who was sentenced in Pinellas County, suffered from intellectual impairment and brain damage. Robards suffered from traumatic brain injury, and the trial court also found him incompetent to stand trial, which resulted in his involuntarily commitment to a state mental hospital. In Miami-Dade County, Victor Guzman was sentenced to death despite an IQ score of 75. He also suffered from severe depression, and has repeatedly cut his wrists dating back to when he was a teenager. In a different case, prosecutors in Orange County obtained a death sentence for Derrick McLean, who suffered from a traumatic brain injury that he sustained as a young teenager when members of a Neo-Nazi gang hit him in the head with a baseball bat.

Severe Mental Illness

A 2016 American Bar Association report on Severe Mental Illness and the Death Penalty concluded that capital punishment “does not serve any effective or appropriate purpose when it is applied to individuals with severe mental illness.” Like juveniles and people with intellectual disabilities, people with mental illnesses are sometimes unable to control or appreciate the results of their actions. They may have conditions that disrupt their thinking, feeling, mood, ability to relate to others, and daily functioning.

One in five of the individuals sent to death row from these five Florida counties were diagnosed with or exhibited substantial symptoms of a severe mental illness. Furthermore, many of these same defendants also had secondary impairments such as intellectual disability or a history of childhood trauma.

Victor Caraballo who was sentenced to death in Miami-Dade County had an “extensive history of mental illness, including involuntary hospitalization just days before the killing.” Caraballo was also “the product of child abuse, incest, and neglect.” In another case, prosecutors in Duval County obtained a death sentence for Jason Simpson who had “attempted suicide numerous times, beginning when he was young.” He had also been hospitalized for drug abuse, depression, and other psychiatric disorders, during which time he continued to attempt suicide. A court-appointed panel “unanimously found Mr. Huggins incompetent — actively psychotic, [with] paranoid delusions, and a decades-long history of serious mental illness.”

The Impact of Trauma

It is now established fact that early trauma profoundly impacts intellectual and emotional development. According to a 2015 government report, Understanding the Effects of Maltreatment on Brain Development, “There is now scientific evidence of altered brain functioning as a result of early abuse and neglect.” Some of these impacts include a persistent fear response, hyperarousal, diminished executive functioning, delayed developmental milestones, and difficulty with social interactions. The report goes on to state, “The effects of maltreatment can continue to influence brain development and activity into adolescence and adulthood. These effects may be caused by the cumulative effects of abuse or neglect throughout their lives or by maltreatment newly experienced as an adolescent.” This research on severe childhood trauma and brain development calls into question whether individuals who have endured extreme trauma can truly be among the most culpable offenders for whom the death penalty is reserved. Yet, at least 23 percent of Florida’s death row prisoners from these five counties suffered some known form of severe childhood or emotional trauma.

Tiffany Ann Cole, sentenced to death in Duval County, had been sexually abused by her own father. She later suffered from drug addiction and chronic depression. Genghis Kocaker, sentenced to death in Pinellas County, was sexually abused and suffered head trauma from being hit by a brick as a child. He was later diagnosed with dissociative identity disorder and had brain abnormalities. Tavares Calloway, who was only 19 years old at the time of his crime, watched his father try to drown his mother in their bathtub as a child. He was also beaten regularly with a switch.


The Eighth Amendment’s prohibition on cruel and unusual punishment restricts the use of capital punishment to the least mitigated offenders who commit the most aggravated homicides. An examination of individuals on Florida’s death row from the five counties named earlier, shows that nearly two-thirds of the condemned individuals suffer from impairments such as severe mental illness, borderline intellectual functioning or brain damage, extreme childhood trauma, or were young adults whose brains had not fully finished developing at the time of their crime. More than one-quarter of these individuals have evidence of two or more of these impairments. These conditions, like juvenile status and intellectual disability, mean that the individual’s “culpability or blameworthiness is diminished, to a substantial degree.” Indeed, many of these individuals may be equally–if not more–impaired than those the Court already has categorically barred from execution. These findings have raised a legitimate question as to whether Florida’s capital punishment scheme–even one with a unanimous jury requirement– is capable of limiting application of the death penalty to the most culpable offenders.

Additional Sources/Footnotes

[1] The “new” death penalty statute, passed in early 2016, was invalidated in October 2016. The previous statute required at least seven members of the jury to vote for death, whereas the “new” statute required 10 of 12 jurors to vote for death.

[2] In 45 of these cases, the jury decision was non-unanimous, and in three of the cases, the individual defendants waived a penalty phase jury.

[3] As we discussed in our Outliers County report, grossly inadequate defense lawyering in death penalty counties remains a pervasive problem in Florida. Therefore, we believe that our numbers likely systematically and significantly understate the number of people on Florida’s death row that suffer from crippling intellectual and mental impairments.


We would like to thank Rory Fleming for his research, writing, and analysis.

About the Fair Punishment Project

The Fair Punishment Project uses legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable. As a joint initiative of Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute, we work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyering, and racial bias, and to highlight the unconstitutional use of excessive punishment. The Project also closely partners with The Bronx Defenders, which provides invaluable strategic, research, and writing assistance.