Opinion: The death lottery

A Times Editorial

The death lottery

A national study on the death penalty shows that death sentences are issued - and overturned - with unusual frequency in Pinellas and Hillsborough counties.

A national study on the death penalty shows that death sentences are issued -- and overturned -- with unusual frequency in Pinellas and Hillsborough counties.

A new study by Columbia University Law School demonstrates that Florida imposes the death penalty in a "heavy and indiscriminate" manner that resembles a lottery in which only an unlucky few receive the ultimate "prize."

The study examined death cases from 1973 to 1995 and ranked counties in the United States by the rate at which they imposed death sentences. Pinellas and Hillsborough counties had among the highest rates in the nation. At the same time, the study found that the error rate -- the rate at which a death sentence is overturned due to trial error or a prisoner's innocence -- is most pronounced in those counties with a high incidence of death sentences. Pinellas topped the charts at an 89 percent error rate. Hillsborough's error rate was 72 percent, still greater than the national average of 68 percent.

In places where the death penalty is applied only in the most egregious cases, reversals were significantly less likely. "Imposing the death penalty in cases that are not the worst of the worst is a recipe for unreliability and error," wrote the study's authors. Florida was given a particular distinction by Columbia law professor James Liebman, who supervised the study. Because the state's application of the death penalty has been so faulty, he called our system "Florida Roulette."

An informal moratorium on executions is in effect in Florida and is likely to remain in place until the U.S. Supreme Court decides an Arizona case that could affect the way death sentences are arrived at here. Florida law asks juries to recommend to judges whether to impose death or a life sentence, but it leaves the final decision to judges. That process may have to change if the court decides it violates defendants' Sixth Amendment right to a jury verdict.

Florida's lawmakers don't have to wait for the court to make adjustments that would surely reduce error in death cases. We know that when a judge overrides a jury's recommendation of life in prison, courts have reversed those sentences upward of 80 percent of the time. We also know that appeals of those cases are clogging the court system. The law should be changed during this legislative session to give juries decisionmaking authority to impose death. As an additional safeguard, death sentences should require a unanimous jury. Errors also could be reduced, the study suggests, by barring the death penalty for anyone who is severly mentally ill or who commited their crime as a juvenile, and by requiring that aggravating factors substantially outweigh mitigating ones.

Whether a murderer receives the death penalty should depend on the heinousness of his or her act, not on the county in which the crime occurred. Because Florida's system has few safeguards to prevent arbitrariness, being sentenced to death is a matter of geography and chance. Just think of it as the state's second lottery system.