Column: Florida bill could spur death penalty reforms

Published May 6, 2013

The Florida Senate has voted to speed up executions in passing the Timely Justice Act, which the House had already overwhelmingly approved. The bill now awaits Gov. Rick Scott's action.

On balance, despite the bill's misplaced emphasis on speedier executions, it would not be unreasonable for the governor to sign it. There are good elements, and the courts could strike down any parts deemed to be unconstitutional.

The bill, sponsored by Rep. Matt Gaetz, a Fort Walton Beach Republican who is the House Criminal Justice Subcommittee chairman, runs counter to current trends in death penalty legislation around the country. Concerns about frivolous appeals cannot be ignored but should be addressed within the larger context of a comprehensive review of Florida's entire death penalty process by all branches of state government. Such a review should be geared toward improving the administration of justice and minimizing the risk that Florida might execute an innocent person or others who shouldn't be subject to the death penalty.

In February, the Florida Bar adopted a resolution urging state officials to launch such a review, a position we sought for nearly two years. In March, the Florida Supreme Court took a step in that direction by establishing a Postconviction Proceedings Subcommittee, chaired by 3rd District Court of Appeal Judge Kevin Emas, to seek input from key stakeholders and file a report by late September.

The alarming backdrop is that the state of Florida imposed more death sentences than any other state during the past two years and, according to the Death Penalty Information Center, overturned more death sentences than any other since 1973.

The American Bar Association released a report in 2006 developed by a team of eight Florida-based experts that raised serious concerns about Florida's death penalty process.

One key finding notes Florida is an outlier in allowing capital case juries to find aggravating circumstances and recommend a death sentence by a simple majority, for example, 7-5.

Some counter if unanimity were required, as in virtually all other states, convicted serial killers such as Ted Bundy and Aileen Wuornos would have avoided death sentences since both penalty-phase jury deliberations resulted in 10-2 votes.

Not necessarily. Had those juries been told that unanimity was required, the nature of the deliberations would have changed, including conceivably the vote, and while the judge is required to place great weight on a jury's recommendation, the judge imposes death sentences in Florida.

Gaetz's controversial bill is now awaiting the governor's review. It purports to, among other things, require the governor to issue a death warrant within 30 days of completing clemency review, if denied. It also establishes requirements for postconviction filing deadlines, case management and other matters traditionally within the ambit of the judiciary.

But in a move that is long overdue, it re-establishes the office of the Capital Collateral Regional Counsel for North Florida to provide legal representation during postconviction proceedings to inmates sentenced to death, duties that had been shifted to private registry counsel while similar offices in South and Central Florida remained open.

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Here's the practical reality:

• The Florida Supreme Court will be able to review the bill if it were to become law and strike provisions that don't pass constitutional muster.

• The notion that enactment would result in a spike in the number of executions is understandable but not necessarily well-founded.

The governor has broad discretion to manage the capital caseload through the clemency process.

Under Florida's Constitution, only the governor can determine when clemency review is complete. If enacted, the bill would not curtail the governor's capacity to determine whether or when to sign death warrants.

For perspective, reportedly about 100 capital cases are legally ripe for warrant consideration, and 13 apparently are amid some stage of clemency review. Apart from this bill, the governor conceivably could sign multiple death warrants at any time.

The fact that so many cases reached this point in the process undermines a premise upon which the Timely Justice Act seemingly is predicated, that the judicial branch is part of the perceived problem.

Still, if the governor were to sign the bill, he would have the opportunity to signal support for the kind of meaningful reform that Texas, arguably the most pro-death penalty state in the nation, is advancing concerning eyewitness identification and various means to address systematic flaws in Texas' death penalty process, consistent with the findings and recommendations of the ABA's Florida Death Penalty Assessment Team Report (2006), reform that has been long overdue.

Raoul Cantero, left, now in private practice in Miami, was a Florida Supreme Court justice appointed by former Gov. Jeb Bush. Mark Schlakman, senior program director for the Center for the Advancement of Human Rights at Florida State University in Tallahassee, is immediate past board chair of the Innocence Project of Florida and was a member of the ABA's Florida Death Penalty Assessment Team. They wrote this exclusively for the Tampa Bay Times.