1. Opinion

Column: Don't seek death (again)

Published Sep. 1, 2017

Florida's death penalty is in a disturbing state of uncertainty. And now prosecutors must make important decisions about how to seek justice consistent with the Constitution.

Last year, both the U.S. and the Florida Supreme Court determined that Florida's death sentencing statute was unconstitutional because it failed to require a jury to unanimously decide on the sentence. The Florida Supreme Court further stated that anyone sentenced to death since 2002 would be entitled to a new sentencing hearing — or could instead be sentenced to life in prison without parole.

As a result, elected head prosecutors across Florida will soon have to decide whether to seek new sentences in nearly 200 cases where a death sentence was imposed by a less than unanimous jury.

For more than a decade, civil rights advocates and legal scholars have been warning the Legislature and state attorneys that the way people were sentenced to death in Florida was unconstitutional, and that non-unanimous jury verdicts were highly problematic. Florida was one of just three states that allowed non-unanimous verdicts in death penalty cases, even though unanimous verdicts are required in nearly every other type of case. It is inconsistent with any sense of justice that a unanimous jury is required to find someone guilty, but a simple majority can put someone to death.

Now, cases and families remain in legal limbo — a situation that was entirely predictable and avoidable. More than 150 cases statewide are affected by the court's ruling. Each case represents a family without closure.

And of course it will be the families of victims and the taxpayers who will shoulder the burden.

Dragging victims' families through yet another sentencing process and asking taxpayers to foot the bill is a waste of resources, and would be extremely painful for the families involved.

First, trial prosecutors have demonstrated in each case that the evidence did not convince a jury to unanimously recommend a death sentence. In some of the initial trials, only seven of the 12 jurors recommended death after hearing all of the evidence.

Second, the Supreme Court recently barred imposing death sentences on persons with intellectual disabilities. In January, the Fair Punishment Project reported that defendants in death penalty cases exhibit a high rate of intellectual disabilities, mental illnesses or other mitigating factors, making a death sentence improbable.

Also, the likelihood of getting a jury to unanimously impose a death sentence under these circumstances is low, but the cost to taxpayers will be high. Prosecutors and defense attorneys will be forced to spend hundreds of hours reviewing old transcripts, interviewing witnesses, and hiring new mental health and other experts. A new death-qualified jury will have to be selected.

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Juggling nearly a dozen capital cases will stretch the resources of the State Attorney's office, the public defender and the courts to their max, leaving little time for other ongoing cases. Taxpayers could end up paying millions of dollars in the process. These resources would be much better spent helping victims and on crime prevention and diversion programs rather than pursuing uncertain death sentences.

Finally, public opinion has changed dramatically. Following the recent rulings of the courts, the Death Penalty Information Project reported that nearly two-thirds of Floridians prefer some form of life sentence to the death penalty.

Here are the options for Florida state attorneys: Seek a punishment that is true to its word — life in prison, which in Florida means that the offender will die in prison; or pursue an arduous death penalty process that will reopen old wounds for the families of victims, in pursuit of a death sentence that may never be carried out and denying them the closure they seek.

As someone who has served as a prosecutor for close to two decades, I am keenly aware of the struggles involved with deciding whether to pursue a punishment of life in prison or death for someone who has committed a horrible crime.

A prosecutor must also consider public safety; and the public would be safe with an offender behind bars for the rest of his/her natural life.

It is time for our elected leaders and voters to take an honest look at the flaws of the death penalty. I encourage our elected Florida state attorneys not to waste enormous resources in pursuit of uncertain punishment in these old cases and, instead, to seek the certainty of life in prison.

Melba Pearson, deputy director of the ACLU of Florida, used to be a veteran prosecutor in Miami. Follow her on Twitter @ResLegalDiva.