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For governor, preserving life is paramount, sometimes

By MARTIN DYCKMAN
Published April 10, 2005

TALLAHASSEE - Few people questioned Gov. Jeb Bush's sincerity when he complained passionately of his inability to countermand the court decisions that allowed a brain-damaged woman to die. The governor is, of course, the only person who knows what was in his heart.

That case contrasts, however, with the governor's consistent disinterest in using the powers he does possess to preserve lives that the courts have abandoned.

Sixteen men and one woman have been executed under death warrants Bush signed after they exhausted or abandoned their appeals. Not once has he undertaken to commute a death sentence to life in prison.

The governor would rationalize, no doubt, that the 17 were criminals, quite unlike Terri Schiavo. The pope drew no such distinction, and neither do the American Catholic bishops whose recent decision to intensify their opposition to the death penalty will burden the remainder of Bush's administration.

Many people of other faiths or no faiths share the church's moral objection. One of the most eloquent was the former Florida governor whom Bush most admires, the late LeRoy Collins, an Episcopalian. He signed 29 death warrants, commuted nine sentences, and spent the rest of his life trying to repeal the death penalty.

A governor doesn't have to be an abolitionist, however, to exercise clemency in selected cases. As sociologists Michael Radelet and Babra Zsembik have described it, "Clemency is a free gift of the executive, needing no justification or pretense of fairness." Most often, perhaps, governors have spared prisoners whose guilt or mental competence they doubted. At other times they have done it to keep a less culpable crime partner from suffering a worse penalty than the chief perpetrator.

With 17 executions on his watch and 367 people remaining on death row, it is remarkable that Bush has not found anyone worth sparing, not even the paranoid schizophrenic Anthony Provenzano, who went to the gurney still believing that he was Jesus. However, the death of mercy is not a recent phenomenon. After five commutations during his first term, Bob Graham granted another in his fifth year and none thereafter. There were none under Bob Martinez or Lawton Chiles.

The same thing happened across the country, so conspicuously that a 1993 Vanderbilt Law Review article was entitled, "Faith in Fantasy: The Supreme Court's Reliance on Commutation to Ensure Justice in Death Penalty Cases." The court had shut its mind to the reality that so many governors had closed down their consciences. There have been 957 executions since 1976 and only 228 death row commutations or pardons, all but 57 of them from one governor, George Ryan of Illinois.

The polarization of American politics appears to be the primary reason. Another is a misplaced confidence that what has been called "super due process" in the court system guarantees that only the worst of the worst will actually be executed. Former Chief Justice Gerald Kogan believes that Florida has put at least three innocent people to death, although he won't say who he thinks they were. In an earlier era, he could have depended on the governor to spare them when the court would not.

From 1925 through 1964, according to a study by University of Memphis criminologist Margaret Vandiver, every Florida governor commuted at least 10 percent of the death sentences that came to his desk. The average was 22 percent; Doyle Carlton Sr. spared 8 of 17 between 1929 and 1932.

Strictly speaking, Florida governors cannot commute sentences on their own authority. Two of the three elected Cabinet members (formerly, three of the six) must concur, but that used to be routine. During Chiles' term, however, there were only two members willing to commute a mentally retarded killer, Danny Doyle. The compromise was to postpone his clemency hearing for 25 years, and he remains on death row.

Commutation, it is true, can call for immense courage, such as Collins summoned in 1955 when he spared Walter Irvin, a black man convicted on dubious evidence of raping a white woman in a Lake County case that was internationally notorious. Racists exploited the commutation when Collins ran for re-election the next year; the trial judge ordered a grand jury investigation and the sheriff contrived for the victim to confront Collins at a parade. But the governor held his ground.

"There is nothing to investigate except LeRoy Collins' judgment and conscience," he said. "Both are beyond the control or coercion of a grand jury."

He won the election.

Martin Dyckman's e-mail address is dyckman@sptimes.com

[Last modified April 10, 2005, 00:58:44]