Less is more when seeking death penalty success rate

TROXLER E-mail: Click here Archive

© St. Petersburg Times
published February 13, 2002

Do you think the death penalty should be carried out more often in Florida?

If so, here's the best way to do it:

Hand out fewer death sentences on the front end.

No, really. Unclog the courts. Save the death penalty for the worst of the worst.

The hard cold fact is that only a handful of death row inmates in Florida ever will be executed. The prosecutors know it, the sentencing judges know it and the jurors know it too.

The easy answer is: Get rid of all those durned appeals! And our state Legislature surely has tried. It has passed laws trying to limit appeals, trying to tie the hands of defense lawyers. It even tried some things that were downright unfair.

But those laws have been thrown out as unconstitutional. This is America, after all. People sentenced to death are pretty much going to get to appeal.

This week, Columbia University released an updated death penalty study, covering a period of more than two decades. Some of it was the usual antideath penalty stuff.

However, one conclusion in the study is directly on point:

The more death sentences a place churns out, the higher the percentage of them that get reversed on appeal.

In other words, places that hand out fewer death sentences in the first place tend to produce "cleaner" cases that stand up better under appellate review.

The four U.S. counties in the Columbia study that handed out the most death sentences, which included Pinellas, had an average reversal rate of 75 percent.

(Pinellas' reversal rate was 89 percent, Hillsborough's was 72 percent and the average in the study was 68 percent.)

In contrast, the four counties in the study with the fewest death sentences averaged a reversal rate of only 39 percent. They had, if you will forgive the metaphor, a much better batting average.

The effect of sharply reducing the number of death sentences imposed would be to save that punishment for the worst of the worst -- the cruelest, the most heinous, the unrepentant, the most cold-blooded.

These factors already exist in Florida's death law, but they are applied at a threshold that is too low. The way the law is written now, you add up the list of "aggravating factors" and decide whether they outweigh any mitigating factors. If so, then death is the appropriate sentence.

But remember, it isn't really a "death" sentence. For 90 percent of cases, the real sentence is, "We will pretend that you are going to be executed one day, and keep you on death row for many years, until your sentence is finally commuted to life in prison."

Why not skip the 90 percent, and go right to the 10? Florida already has been heading that way: By the late 1990s, the number of new death sentences each year had dropped from almost 50 to fewer than two dozen.

Of course, there is no magic way to determine the most deserving cases. But a higher threshold for imposing death on the front end would tend to produce better cases, more likely to stand up.

What we really ought to do is design a system that produces only a handful of new death sentences each year, but really, really good ones, the most obviously guilty and most deserving, and most unlikely to be reversed. One way, but by no means the only way, would be to require unanimous jury recommendation for a death sentence, not just a majority vote.

For that elite handful of condemned prisoners, the courts would await unclogged, the state-paid defense lawyers would be standing at the ready, their cases would be settled in months instead of years -- and then the sentences of the deserving would be carried out.

Furthermore, the opponents of capital punishment would be freed to argue their real and more noble case, namely, that capital punishment is beneath a civilized people. In the long run they might have more success with that approach than with "studies" that convince no one who doesn't already believe it.

- You can reach Howard Troxler at (727) 893-8505 or at troxler@sptimes.com.

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