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Fla. death penalty far from fair, sure

By Christopher Slobogin
Published September 24, 2006

Since 1973, Florida has exonerated 22 death row inmates, more than any other state in the nation by a large margin. During that same time period, Florida executed 60 death row inmates. These numbers represent an unacceptably high error rate: more than one exoneration for every three executions.

Regardless of whether one supports or opposes the death penalty in principle, reasonable people agree that if the government is to take a life, it must first provide justice - meaning a process that is both fair and accurate - in every stage of the proceedings: at trial, on appeal, during state and federal postconviction hearings and in connection with clemency.

The Florida Death Penalty Assessment Team, sponsored by the American Bar Association, recently completed a two-year investigation of Florida's capital punishment system and released its findings in a 400-plus-page report. Several members of the team either are proponents of the death penalty or are not opposed to it in principle. But the entire eight-member group, which included individuals from across the state who are or have been associated with the prosecution, the defense, and the trial and appellate judiciary, concluded that "there is a need to improve the fairness and accuracy of the death penalty system" in Florida.

If this fairness-and-accuracy goal is to be met, competent lawyers who are trained to handle capital cases and have the resources to investigate and represent their clients must be available for every capital defendant. Under Florida law, however, attorneys who handle postconviction appeals need have only minimal experience in criminal matters and are not adequately monitored. The poor representation that inevitably results has not gone unnoticed; Florida legislators and Florida Supreme Court justices have criticized the performance of so-called "registry attorneys" on a number of occasions. Perhaps most alarming is Florida Supreme Court Justice Raoul Cantero's testimony that the representation provided by registry attorneys is "(s)ome of the worst lawyering" he has ever seen.

The fairness-and-accuracy goal also means the state should strive to eliminate bias in the system, whether it is racial, geographic, or socioeconomic. Relevant here is the finding by the Florida Supreme Court's Racial and Ethnic Bias Commission in 1991 that a criminal defendant in a capital case is 3.4 times more likely to receive the death penalty when the victim is white than when the victim is African-American. Nearly 10 years later, the Governor's Task Force on Capital Cases, although not as convinced that racial bias infects the system, made several recommendations aimed at investigating racial matters in capital cases, many of which have yet to be implemented.

The fairness-and-accuracy goal also means that capital juries should be unanimous in their decision to impose a death sentence. Yet Florida is one of only three states in the nation where the 12 jury members need not all agree on the necessary prerequisites to a death sentence. Additionally, Florida is one of only four states that allow less-than-unanimous juries to recommend sentences of death. And it is the only state that permits a simple majority vote on both of these matters (aggravating factors and the ultimate sentencing recommendation). Recognizing the inherent unfairness of this scheme, the Florida Supreme Court recently called upon the Legislature to require jury unanimity in at least one of these two areas.

The fairness-and-accuracy goal also means that capital jurors should appreciate their responsibilities when making life and death decisions. Yet research suggests that large percentages of Florida capital jurors are confused about the circumstances under which a death sentence is permitted by law. It also suggests that Florida's rule allowing judges to override jury decisions - a rule that is followed in only three other states - tempts jurors to take their role less seriously than in states without judicial override.

The fairness-and-accuracy goal also means that the clemency process should be transparent and open. Unfortunately, Florida's clemency process is full of ambiguity and secrecy. For example, the Board of Executive Clemency is not required to provide reasons for denying clemency, and the factors considered by the board are largely undefined. Additionally, the governor can deny clemency at any time, for any reason, and is not required to hold a hearing of any sort to consider an inmate's claims.

Finally, the fairness-and-accuracy goal means that evidence of serious mental disorder at the time of the offense should be given significant weight in determining whether a person should be executed. Here again Florida law falls short, by failing to recognize that serious mental illness is at least as debilitating as mental retardation, the latter a condition which the U.S. Supreme Court has declared should lead to exemption from execution.

The Florida Death Penalty Assessment team unanimously endorsed 11 recommendations meant to address these and other aspects of Florida's death penalty system. Hopefully the legislative, executive and judicial branches will give them due consideration. The residents of Florida deserve a death penalty system they can trust. The three branches of government each must do their part to ensure that the system works fairly and accurately. As it now stands, we have a long way to go.

Christopher Slobogin occupies the Stephen C. O'Connell Chair at the University of Florida Fredric G. Levin College of Law. He chaired the Florida Death Penalty Assessment Team.

[Last modified September 24, 2006, 09:36:19]