While the state of Illinois considers 85 recommendations to bring more fairness and accuracy to its death penalty, Florida's politicians have been looking for ways to do just the opposite. A law signed by Gov. Jeb Bush on Tuesday would prevent attorneys representing some indigent death row inmates from fully defending their clients.

For all our governor's public handwringing over signing execution warrants, he apparently had no problem signing away vital due process rights of death-row inmates. The new law, which will undermine the very processes that determine whether a prisoner has been wrongly or improperly sentenced to death, ironically comes at a time when the 100th innocent person was just released from death row, this time in Arizona.

Bush and the Legislature are attempting to resurrect a niggardly fee schedule for death-row attorneys that had been modified by the Florida Supreme Court in February. The court was concerned that the limited state payments for unusually complex death penalty work -- postconviction collateral defense has been called the brain surgery of criminal law -- could prevent some prisoners on death row from receiving effective counsel. "Unfortunately," the court noted in the case of Olive vs. Maas, "the link between compensation and the quality of representation remains too clear."

Because of its concerns that the statutory limits would, in some cases, not be sufficient for an attorney to adequately defend his or her client, the court authorized the trial court to "grant fees in excess of the statutory schedule where extraordinary or unusual circumstances exist in capital collateral cases."

The Legislature's response was to permanently bar any state-funded death-row attorney who requests additional compensation from being appointed to another case.

Sponsor of the original bill, Sen. Locke Burt, R-Ormond Beach, took no "credit" for this aspect of the new law, other parts of which are positive. "It was language added by the House and accepted by the Senate," he said. Asked whether the punitive measure against attorneys who seek more in fees violates the inmates' right to effective counsel, Burt said "that will have to be decided by litigation."

For years the Legislature has tried and, to some extent succeeded, in tamping down the level of representation for prisoners on death row. It reorganized the offices of Capital Collateral Representative in order to give the Legislature more direct control over its operations. And in 1998, the Legislature established a registry of private attorneys not associated with the state offices of CCR who could represent death row inmates if they agreed to limit their representation to 840 billable hours. It was this limit that prompted Steve Hanlon of Holland & Knight to bring the Olive suit on behalf of a postconviction death-row attorney. Hanlon offered reliable evidence from a study he had commissioned that it takes more like 3,300 hours to provide effective representation. In Hanlon's words, the caps indicated that the state wished to provide death row prisoners with only "the illusion of a lawyer."

Hanlon promises to challenge the new law, and he should. The Florida Supreme Court should once again make it clear that death row prisoners in Florida must be given the due process the Constitution demands, regardless of the cost or what our leaders in Tallahassee think.

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