The Legislature's deadly games
© St. Petersburg Times
published October 9, 2002
The Legislature shouldn't play games with the death penalty. But during the last legislative session, lawmakers played "gotcha" with an attorney at the Holland & Knight law firm who has been trying to ensure that prisoners on death row have competent legal representation.
For years, Stephen Hanlon has been challenging the caps the Legislature put on the fees and costs awarded private attorneys who represent death-row inmates. The monetary caps limit the compensable hours an attorney can devote to each aspect of a death penalty appeal, creating, in Hanlon's words, "the illusion of a lawyer." A study he commissioned has produced reliable evidence that it takes about 3,100 hours to provide effective representation to a prisoner on death row. The state will pay for only 840 hours.
In February, the Florida Supreme Court recognized this disparity and modified the fee schedule by giving trial courts the authority to go beyond the statutory maximums where "extraordinary or unusual circumstances exist in capital collateral cases." The court noted the complexity of these cases and said the limits on state payments could seriously affect the quality of representation death row inmates received.
But no sooner had the ink dried on the Florida Supreme Court's decision than the Legislature fired back. It passed a statute barring attorneys who ask for fees beyond the caps from appearing on a state registry of lawyers eligible for appointment on future cases.
Our lawmakers must have been snickering into their sleeves. They found a way to scuttle Hanlon and slither around the Florida Supreme Court ruling. The only damage was to prisoners on death row and the state's commitment to due process.
Nationwide, 102 people who once sat convicted and waiting for their execution have been exonerated of their crimes. Experts say many were wrongly convicted because of shoddy lawyering. In Florida, three in four death sentences have been set aside due to constitutional error, with the mistakes often traceable to attorneys who didn't effectively represent their clients. One researcher at Columbia University who studied the nation's 38 death penalty states called our state's faulty process "Florida Roulette."
Hanlon plans to file suit in circuit court in Tallahassee this month challenging the constitutionality of the new law that punishes lawyers who go beyond the statutory caps. He makes the point that the real party in interest here is the Florida Supreme Court, because it has to rely on counsel to ferret out error. Only attorneys with expertise and time can do that job properly.
Once again the courts will have to step in and clarify the state's constitutional duty to those people it wants to put to death. The Legislature simply isn't interested. It is too busy playing games.
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