The U.S. Supreme Court will hear a case that could affect the way Florida imposes the death penalty. The state should delay any executions until that case is decided.

By Feb. 7, Florida plans three more executions. Gov. Jeb Bush should postpone them and schedule no more until the U.S. Supreme Court resolves the latest and most serious challenge to how this state and eight others impose the death sentence. If the governor doesn't act, the state's own Supreme Court should.

Make no mistake: The situation is serious. A case that the U.S. Supreme Court accepted Friday for argument in April has the potential to overturn nearly 800 death sentences, depending on how the justices decide it. Nearly half of them are in Florida. Another 128 are from Arizona, source of the case the court will hear, and the rest are from Alabama, Colorado, Delaware, Idaho, Indiana, Montana and Nebraska.

In each state, a judge rather than a jury decides whether there are aggravating factors, such as that the murder was particularly "heinous," in favor a death sentence and whether there are "mitigating" factors, such as a defendant's youth or mental incapacity, that weigh in favor of mercy. In five of the states, judges alone impose sentence. Though Florida, Alabama and Indiana call on the jury to recommend between death or life in prison without parole, the jurors' vote is not binding on the judge. Moreover, Florida jurors are not required to specify what they find the factors to be.

The U.S. Supreme Court upheld the life-or-death discretion of a judge in Walton vs. Arizona 12 years ago. But two years ago, it ruled 5-4 that New Jersey had violated the constitutional right to due process by allowing a judge to increase the sentence for an ordinary crime upon deciding that the motive made it a hate crime. Though Justice John Paul Stevens' majority opinion in Apprendi vs. New Jersey contended that the new precedent didn't apply to death cases like Walton, Sandra Day O'Connor wrote for herself and three other dissenting justices that the distinction was "baffling."

"If a state can remove from the jury a factual determination that makes the difference between life and death, as Walton holds that it can," O'Connor argued, "it is inconceivable why a state cannot do the same with respect to a factual determination that results in only a 10-year increase in the maximum sentence to which a defendant is exposed."

O'Connor's reasoning was sufficiently vexing to Justice Clarence Thomas, the apparent swing vote in favor of Stevens' opinion, that he wrote separately to say that the death penalty issue "is a question for another day." Thus, only four of the nine justices went on record as saying that Apprendi did not implicitly reverse Walton.

That other day has come, and with it the possibility that Florida's procedure may soon be found unconstitutional. As the ruling is expected before the court recesses for the summer, Florida would appear utterly barbaric in refusing to postpone the executions of Amos Lee King, Robert Trease and Linroy Bottoson.

In Bottoson's case, there are also dramatic arguments in favor of a new sentencing hearing on the questions of his reported mental retardation and schizophrenia. The judge who sentenced him to death 21 years ago heard little of these issues, having refused a defense request to appoint a second lawyer for the penalty phase of the trial. Bottoson's court-appointed lawyer was a novice, a member of the Bar only 26 months, who was too inexperienced to be lead counsel let alone sole counsel in a capital case under the standards the Florida Supreme Court applies today.

Moreover, Bush has pledged not to execute anyone who is retarded and signed into law legislation forbidding the death penalty for anyone who is. Though the legislation was written to exclude people already on death row, the distinction is very probably unconstitutional. Bottoson would merit a stay of execution on that point alone.

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