State: Bewildering ballot measures

TALLAHASSEE -- Pity Florida voters. Not only do they have to contend with 10 proposed amendments to the state Constitution Tuesday, but the first one is a whopper.

It deals with the definition of cruel or unusual punishment, and trying to figure it out can be both cruel and unusual.

Amendment 1's summary alone is so long that it takes up a whole screen on the voting machines. That's no accident; legislators changed state law so they could make it extra long.

When citizens propose Constitutional amendments, they have to have to stick to a 75-word summary. This one, crafted by politicians, is more than 700 words.

"People make the argument that you should read it beforehand. But I've read it many times, and I'm still not sure what it means," said Hillsborough elections supervisor Pam Iorio. "Voters are left feeling somehow that they are inadequate because they can't understand it."

And then there's the ballot title, which reads like a legal brief: "Amendment One: Amending Article 1, Section 17 of the state Constitution."

"What kind of clue does that ballot title give to the voters?" asked Ion Sancho, Leon County supervisor of elections. "It's written as if it were aimed at a trial judge or a lawyer."

Sancho found the amendment so convoluted that he sued to keep it off the ballot. He lost.

The amendment applies to all crimes in Florida, not just the death penalty. But it is the end result of years long political and legal fight over the electric chair.

A little history: Florida voters already approved this amendment in 1998 under a different ballot title: "Preservation of the Death Penalty." But a court challenge followed, and two years later -- in September 2000 -- the Florida Supreme Court voted to take the amendment out of the state Constitution.

The justices ruled that state lawmakers had written a summary that misled voters. Despite the title, "Preservation of the Death Penalty," it wasn't really a referendum on whether Florida should keep the death penalty. And, the justices pointed out, the amendment applies to all crimes, not just capital crimes.

The amendment would change the standard for "excessive punishment" from the current "cruel or unusual" punishment to "cruel and unusual" punishment.

The whole thing stems from political wrangling in 1998, when Florida still used the electric chair as the sole method of execution. Lawmakers were worried that the U.S. Supreme Court would overturn Florida's death penalty by ruling that the electric chair was too cruel a method of execution. Since few states had the electric chair anymore, they also worried a court might declare it "unusual." When the U.S. Supreme Court agreed to hear arguments on the matter, lawmakers quickly changed the state's execution method to lethal injection in 1999.

Changing from "cruel or unusual" to "cruel and unusual" conforms with the U.S. Constitution.

But what effect would it have? That depends on whom you ask.

Locke Burt, the former state senator who sponsored the measure, explains it this way: "Number one, it makes the death penalty a constitutional, rather than a statutory, punishment in Florida, which means the Florida Supreme Court can't declare the death penalty unconstitutional. The only court that could declare the death penalty unconstitutional would be the U.S. Supreme Court."

Burt said the change also would prevent condemned prisoners from arguing that their death sentences are invalid because the state changed the method of execution later.

"The U.S. Supreme Court has upheld death by firing squad, by hanging, by the gas chamber, and you've got the electric chair, and you've got lethal injection. Somebody could come up with a new way to execute people. What this says is that any method that's declared constitutional by the U.S. Supreme Court will be constitutional in the state of Florida."

But opponents say it has more far-ranging effects. Among them: Florida now would be able to execute 16-year-olds; the state traditionally has not executed anyone under 17.

Their argument is that The U.S. Supreme Court has ruled that it is cruel and unusual to execute people for crimes committed when they are 15 or younger. But not when they are 16 or older.

The Florida court does not recognize the death penalty as inherently cruel but has ruled that it is unusual to execute 16-year-olds. If the amendment passes and Florida adopts the U.S. Supreme Court's definition, the state could execute 16-year-olds, said Randall Berg Jr., executive director of the Florida Justice Institute, a law firm that handles civil rights cases.

"All Florida courts would be bound to follow the case law coming out of the U.S. Supreme Court," Berg said.

Steve Hanlon, a Florida lawyer who handles death penalty cases, says most voters have no idea that the amendment could apply to them, since it deals with all crimes.

"It includes every single penalty in the penal code -- the penalty for shoplifting, for hijacking, for jaywalking," said Hanlon, who opposes the amendment. "I am confident that 95 percent of the lawyers in this state could not tell you accurately what that amendment means."

Elections supervisors predict that the long amendment will mean backups at the polls, as voters read and reread it to figure out what it means. In some counties, the amendment takes up two computer screens.

"I can't begin to tell you how many people have tried to read that and turned and asked me, 'What does it mean?,' " said Sancho, the Leon County elections supervisor. "All I can say is, voters are on their own on this one."

Back to State news

Contact the Times | Privacy Policy
Standard of Accuracy | Terms, Conditions & Copyright

Special Links

Lucy Morgan

From the Times state desk