Florida death penalty system needs reform

Three years ago, the American Bar Association released a Florida Death Penalty Assessment Team report that raised concerns about the state's death penalty process. Since then, neither the government nor the Florida Bar has done much to remedy the problems.

To study Florida's death penalty, the ABA assembled a highly credentialed eight-member team that was diverse and balanced to reflect prosecutorial, defense, judicial and academic perspectives. The report was developed after almost two years of research and analysis, and findings and recommendations had to be unanimous to be included in the report.

The report neither supports nor opposes capital punishment. However, individual team member perspectives regarding capital punishment ran the gamut. Simply put, the report's findings and recommendations were intended to improve the administration of justice in Florida and promote fairness and accuracy in our criminal-justice system without regard to one's views on capital punishment.

Among the report's findings was that legal representation of death penalty defendants in postconviction proceedings, particularly by certain private registry counsel, is often abysmal. The report makes several related recommendations, including reinstating the capital collateral regional counsel office, or CCRC, in the Northern Region of Florida. That office was disbanded as part of a still-ongoing pilot project launched during Jeb Bush's tenure as governor. It in effect privatized the northern office of the CCRC, thereby relying almost exclusively upon private registry counsel to handle postconviction appeals in death penalty cases.

Gov. Charlie Crist has expressed support for reinstating the northern CCRC office.

Another one of the report's major recommendations embraces a Florida Supreme Court opinion that unanimously called upon the Legislature to revisit the state's death penalty statute. The report, like the opinion, observed that Florida is the only one of 35 death penalty states that allows a jury to decide that aggravating factors exist and to recommend a sentence of death by a majority vote. Despite the court's strongly worded opinion, however, the Legislature has been unresponsive.

Interestingly, it was reported that Gov. Bush said that the issue was "definitely worth consideration" and cautioned legislators not to ignore the court. Yet Crist has opposed the recommendation.

Another alarming problem with Florida's death penalty is the number of defendants on death row who have been exonerated. The Death Penalty Information Center, a Washington-based nonprofit organization that provides independent analysis on issues concerning capital punishment, advises that Florida has exonerated more death-sentenced inmates than any other state since 1973. One inmate was exonerated after he died of cancer on death row.

The report also expresses concern about socioeconomic and geographic bias, the latter attributable in part to the fact that Florida's 20 state attorneys offices do not have uniform protocols to decide when to seek the death penalty. When prosecutors from different judicial circuits assess substantially similar criminal cases, prosecutors from one circuit might opt for the death penalty while prosecutors from another might opt for life without parole, heightening concerns over whether the death penalty is applied consistently throughout the state.

The report contains many other recommendations. To access the full report, visit www.abavideonews.org/ABA340/.

The Florida State University Center for the Advancement of Human Rights will be hosting an ABA-sponsored forum on the Florida death penalty in Tallahassee at the FSU College of Law Rotunda today to coincide with the three-year anniversary of the release of the ABA report. To watch (either live or delayed) visit http://campus.fsu.edu/ABA.

The challenge for those who hold and aspire to elected office, including Florida's 20 state attorneys, is to ensure that personal perspectives pertaining to capital punishment, and the public outrage arising out of heinous crimes, do not overshadow the fact that Florida's death penalty process is fraught with problems. Floridians expect a system of justice that engenders confidence based upon fairness and accuracy. With regard to the state's death penalty process, in many respects that standard has proven to be elusive. We hope that this election cycle will provide an opportunity to openly and honestly discuss these issues and to seriously consider possible solutions for the problems identified in the report.

Raoul G. Cantero III is a former Florida Supreme Court justice appointed by Gov. Jeb Bush and is in private practice in Miami. Mark R. Schlakman serves as senior program director for Florida State University's Center for the Advancement of Human Rights and as board chair for the Innocence Project of Florida. He was one of eight individuals who served on the ABA's Florida Death Penalty Assessment Team.