Column: Honor D'Alemberte by reviewing Florida's death penalty process

This is a still pulled from b-roll provided by the Florida Department of Corrections of two officers walking down death row at The Union Correctional Institution near Raiford.  (2018)
This is a still pulled from b-roll provided by the Florida Department of Corrections of two officers walking down death row at The Union Correctional Institution near Raiford. (2018)
Published May 31, 2019

This column isn't a tribute to the late Talbot "Sandy" D'Alemberte, although it could be. The former Florida State University president, FSU College of Law dean, American Bar Association president, Miami area state legislator and chair of the 1977-1978 Florida Constitution Revision Commission continues to evoke heartfelt reaction from so many whose lives he touched since he died nearly two weeks ago.

His sensibilities will continue to inspire people to envision a more just world and take meaningful steps to achieve it. His resolve to confront vexing challenges — regardless of whether they are unpopular, controversial or characterized by vitriolic, rather than well-informed, rhetoric — is legend.

This essentially is a call to action involving one of D'Alemberte's many priorities to change the status quo.

Recently, Florida executed a Death Row inmate under authority of the first warrant signed by Gov. Ron DeSantis. D'Alemberte was opposed to capital punishment and aghast at Florida's uneven process and procedures, and at those around the country.

Years ago, he encouraged me to join an eight-member, Florida-based assessment team assembled by the ABA. It included an elected state attorney, a former public defender, a former Florida Supreme Court Chief Justice, a circuit judge who taught the Florida College of Advanced Judicial Studies capital case sentencing course, an appellate lawyer in private practice who later served as president of the Florida Supreme Court Historical Society and was chaired by a then-UF law professor with special expertise in mental illness.

The 2006 ABA report that resulted highlighted a range of findings and recommendations regarding the fairness, accuracy and impartiality of Florida's death penalty process — the report did not take a position on capital punishment.

Nor did it focus upon method of execution or the staggering fiscal implications of capital punishment since such would require different kinds of subject-matter expertise.

Significantly, all findings and recommendations were unanimous.

One recommendation called for unanimous penalty phase juries to advance a death sentence instead of by simple majority (for example, 7-5) which was Florida's standard at the time. The U.S. Supreme Court ruled a decade later that Florida's scheme violated the U.S. Constitution — the Legislature took two sessions afterward to get it right.

Another finding documented jurors' widespread confusion in capital cases. The Florida Supreme Court amended the corresponding jury instructions three years afterward.

Other key findings and recommendations involving, but not limited to, geographic, socioeconomic and racial disparities still apply but haven't been effectively addressed.

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I met D'Alemberte during the early 1990s. He requested a meeting when I served as assistant general counsel and clemency aide to Gov. Lawton Chiles. He was representing a Death Row inmate pro bono. My responsibilities included supporting the governor's consideration of death penalty cases when they reached a point in the appellate process that executive clemency review would ensue. Chiles refrained from signing a death warrant in that instance.

The governor's guidance simply was keep him apprised of significant issues that might affect his decision. I sat next to the governor in his office during an execution, with open phone lines to the courts, Florida's attorney general and the execution chamber.

Five years after the ABA released its Florida report, former Florida Supreme Court Justice Raoul Cantero (appointed by Gov. Jeb Bush and now practicing law in Miami) and I approached the Florida Bar's Criminal Law Section — comprising judges, prosecutors, criminal defense lawyers (public and private) and academics — to propose a position supporting comprehensive review of Florida's entire death-penalty process by all three branches of government. It passed 23-3.

That was 2011. No such review has been conducted. Moreover, a commission established in law to monitor Florida's process and report back to all three branches was eliminated by the Legislature that same year without debate in the Senate purportedly as a cost-avoidance measure. For perspective, courts review issues raised within the context of any given case — they're not informed by a broad assessment of the efficacy of Florida's death-penalty process.

More recently, Roberto Martinez, a member of the 2017-2018 Florida Constitution Revision Commission and former U.S. attorney for the Southern District of Florida — now practicing law in Coral Gables — attempted to amend his commission proposal to repeal capital punishment instead to require periodic review of Florida's entire death-penalty process consistent with the Criminal Law Section position.

In a departure from traditional protocol the chairwoman of the respective commission committee broke a tie by voting no, effectively ending his effort to further, at a minimum, a constitutional framework.

In keeping with D'Alemberte's sensibilities, death-penalty supporters and opponents alike have reason to advocate for meaningful periodic review of Florida's entire death-penalty process by all three branches of government, so long as capital punishment is the law in this state.

Mark R. Schlakman is the senior program director of the Florida State University's Center for the Advancement of Human Rights. This column first appeared in the Miami Herald.