The Florida Supreme Court has set aside the Legislature's latest and hopefully final attempt to provide death row inmates with representation on the cheap. The high court recently ruled that attorneys appointed to represent death row inmates in postconviction appeals may not be punished if they charge the state for hours worked beyond a set limit established by law.
The ruling is the culmination of years of failed attempts by the Legislature and former Gov. Jeb Bush to constrain the amount of effort death penalty attorneys may exert on behalf of their clients. If the state wants to maintain the death penalty, it is now clear that death row inmates are going to have to be given a lawyer who isn't told to skimp on their defense.
Before 2003, the state had three highly specialized offices of Capital Collateral Regional Counsel where attorneys well versed in the complex area of postconviction death penalty litigation represented the state's death row inmates. But Bush and the Republican-led Legislature were irritated by just how successful these CCRC offices were at delaying executions and getting death sentences set aside.
Bush wanted all of the offices closed, but he was successful in only getting one of the CCRC offices shuttered and replaced with a registry of private attorneys. This was supposed to be an experiment to see if private counsel could do the job for less money. Attorneys who signed up for the registry had to promise to limit their representation to 840 compensated hours.
But the average death penalty client takes closer to 3,000 hours to represent. That meant that the attorneys who signed up for the registry were less likely to do a thorough job and provide their client with a full defense.
The result was predictable. Former Florida Supreme Court Justice Raoul Cantero testified that the legal work done by the attorneys on the registry was "some of the worst lawyering I've seen." The bad lawyering led to innumerable delays as courts worked to sift legitimate claims from frivolous ones.
Many of the private lawyers were simply not capable of navigating the complicated area of postconviction death penalty work. In at least 25 cases, registry lawyers have missed their filing deadlines in federal court, according to Neal Dupree, who heads up CCRC South.
The experiment demonstrates unequivocally that the CCRC system is the best way for the postconviction process to run smoothly, efficiently and professionally. There was a noble push in 2007 to reopen the northern CCRC office with Sen. Victor Crist, R-Tampa, leading the effort, but it didn't succeed. Next session, the Legislature should try again.
In the meantime, the Florida Supreme Court has abrogated a legislative attempt to order the removal from the registry of any attorney who exceeds the 840-hour cap and requests compensation beyond the statutory limits. The high court said in Maas vs. Olive that state law must be applied in a way that "ensures effective and competent representation in complex and unusual capital postconviction proceedings."
Due process is an expensive proposition. But it is also the only way to ensure that the ultimate penalty is dispensed fairly.