Friday, December 15, 2017
Opinion

Column: Fix flaws in Florida death penalty system

The Legislature passed a law this year known as the Timely Justice Act. Among other things, it requires that a list be developed to identify all active capital cases that are "legally ripe" for death warrants subject to routine executive clemency investigation.

Preliminary indications are about 135 cases (33 percent of death row) may qualify — that's unprecedented.

These would include those whose respective judgments of guilt and sentences of death have been affirmed on automatic direct appeal to Florida's Supreme Court and whose "postconviction relief" was denied during initial state and federal court proceedings that followed. Postconviction proceedings involve "collateral" matters like ineffective assistance of counsel, allegations of prosecutorial misconduct and newly discovered evidence involving claims of actual innocence.

To oversimplify, if a governor ultimately denies clemency, he would sign a death warrant; additional litigation would ensue. Given the circumstances, it's conceivable that Gov. Rick Scott and future Florida governors might sign significantly more death warrants than their immediate predecessors.

House Criminal Justice Subcommittee Chairman Matt Gaetz, R-Fort Walton Beach, said he sponsored the Timely Justice Act to speed up postconviction proceedings and reduce time between sentencing and execution. Analysis indicated inmates average 13.22 years on Florida's death row before execution, less than the national average.

Considerable confusion surrounds this legislation. The Timely Justice Act didn't expedite these 135 cases through the postconviction process. When signing it into law, Scott emphasized, "It does not fast-track death penalty cases through the court system."

A challenge before Florida's Supreme Court will address whether, or the extent to which, it runs afoul of Florida's Constitution.

Regardless of the outcome, concerns about undue delay are best addressed through a comprehensive review of Florida's entire death penalty process by all branches of state government intended to minimize the risk that innocent people (or others who shouldn't be subject to the death penalty) might be executed. This essentially is the position the Florida Bar's Board of Governors adopted in February.

In March, Florida's Supreme Court established a Capital Postconviction Proceedings Subcommittee to seek input from stakeholders; its scope is limited.

Some of these 135 cases may be unlikely prospects for death warrants given other issues like mental illness. And the capacities of the executive branch to conduct clemency investigations and Florida's Supreme Court to review multiple cases under death warrant are countervailing factors militating against a potential torrent of death warrants.

Ironically, controversy involving the Timely Justice Act diverted attention from these issues and other serious concerns about Florida's death penalty process documented in a 2006 American Bar Association report, including that Florida is the only state that allows juries to find the requisite "aggravating circumstances" to support capital punishment and recommend death during penalty phase proceedings by simple majority, for example, 7-5.

In Florida, 12 people constitute capital case juries, guilty verdicts must be unanimous, and while judges impose sentences, jury recommendations carry great weight.

In 2005, Florida's Supreme Court in State vs. Steele urged the Legislature to revisit Florida's death penalty statute to require unanimity for recommendations of death.

Sen. Thad Altman, R-Viera, introduced such legislation during the past three legislative sessions; it died in committee.

Requiring unanimity would help ensure the death penalty is reserved for the worst of the worst. It's notable that more death sentences reportedly were imposed in Florida than any other state during the past two calendar years; and more exonerations have occurred in Florida than any other state since 1973.

Some claim serial killers like Ted Bundy and Aileen Wuornos would have avoided death sentences given 10-2 votes.

Not necessarily. Research by Scott Sundby from the University of Miami School of Law indicates more rigorous analysis would result and the nature of jury deliberations would change, conceivably achieving unanimity especially when nine or more were in favor of the death penalty.

Almost all remaining capital punishment states including Texas require unanimous penalty phase juries — Florida is conspicuously absent. Moreover, a comprehensive review of the entire death penalty process called for by the Florida Bar is arguably long overdue. Issues raised in the 2006 ABA report would be a logical place to start.

Raoul Cantero, a former state Supreme Court justice appointed by Gov. Jeb Bush, practices law in Miami. Mark Schlakman, of Florida State University's Center for the Advancement of Human Rights, was on the ABA's Florida Death Penalty Assessment Team. A version of this essay appeared in the Orlando Sentinel.

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