Florida death penalty reform is overdue

Published May 16, 2012

The Florida Bar's Criminal Law Update for lawyers is taking place in Tampa today.

Challenging the status quo to promote fairness and impartiality in our justice system can be a daunting task even for legal practitioners. When Florida's death penalty process is at issue, the task can be further complicated because such efforts are often equated with being soft on crime or insensitive to victims' issues. Moreover, the Florida Bar Foundation, which had played an instrumental role in advancing death penalty process reform efforts, is less inclined to support such projects today given depleted discretionary funding.

The alarming backdrop is that the Death Penalty Information Center, an independent Washington, D.C.-based nonprofit organization, reports that since 1973, Florida has reversed more death sentences than any other state.

Frank Lee Smith was exonerated posthumously after the actual perpetrator was identified. He died of cancer after languishing on death row for 14 years.

Juan Melendez was exonerated after almost 18 years on death row when a taped confession by the actual perpetrator was discovered.

Reasonable people may disagree about capital punishment, but all should agree that the process must be as fair and impartial as possible.

More than five years ago, the American Bar Association released a comprehensive report developed by a team of eight Florida-based experts that raised serious concerns about Florida's death penalty process. (It did not take a position on the merit or efficacy of capital punishment.)

Few of its recommendations have been implemented.

One key recommendation was that state officials should conduct a comprehensive review of Florida's death penalty process, suggesting that the report's findings and recommendations would be a logical place to start. For perspective, no such review has been attempted in more than 10 years; even then it was limited in scope. Any of the state's three branches of government could initiate working in cooperation with the others.

One of the report's key findings notes that 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. Now that Connecticut repealed its death penalty statute for future crimes last month, apart from Florida the 32 other remaining death penalty states require a form of unanimity.

Some counter that if unanimity had been required, convicted serial killers such as Ted Bundy and Aileen Wuornos wouldn't have received death sentences because both penalty-phase jury deliberations resulted in 10-2 votes.

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

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We may be reaching a turning point.

Sen. Thad Altman, R-Melbourne, filed a bill in anticipation of the 2012 regular state legislative session that would require unanimity in future penalty phase jury deliberations for both advisory recommendations of death and findings regarding the presence of aggravators, the basis for any death sentence.

He expanded the scope of a unanimous-jury bill that he previously filed to address issues raised in Evans vs. McNeil, a recent case out of the Southern District in which U.S. District Judge Jose Martinez declared related aspects of Florida's capital case sentencing scheme unconstitutional. The state has appealed.

Before Evans, the Florida Supreme Court, in a 2005 opinion known as State vs. Steele, had called upon the Legislature to revisit Florida's death penalty statute to require unanimity for jury recommendations of death. Then-Gov. Jeb Bush observed that the issue was "definitely worth consideration" and cautioned legislators not to ignore the court.

The Legislature ignored the court.

Simply put, Altman's bill would have helped to ensure that the death penalty is reserved for the most heinous crimes. The bill died in committee without a hearing.

Legislative leadership seems to be falling prey to the notion that any change in Florida's death penalty statute might result in unintended consequences and therefore should be resisted at virtually all costs, essentially gambling that Evans will be reversed on appeal.

Maintaining the status quo and thereby Florida's outlier status in this regard among all other death penalty states does not serve the cause of justice. States like Texas and Georgia, known for their pro-death-penalty stance, require unanimous juries. So should we.

Raoul Cantero is a former Florida Supreme Court justice appointed by Gov. Jeb Bush. Mark Schlakman, senior program director for the Center for the Advancement of Human Rights at Florida State University, is board chairman for theInnocence Project of Florida and was a memberof the ABA's Florida Death Penalty Assessment Team.