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A Times Editorial

Mercy strained too fine

In Florida's criminal justice process, the courts and governor wash their hands of responsibility for executing people who are seriously mentally ill.

© St. Petersburg Times, published June 25, 2000

No one can take decent comfort in the fact that Florida has executed someone so mentally ill as Thomas Provenzano. By the cold logic of the criminal justice system, he understood why he was to die and that was enough. By the evolving standards of human decency that shed their light almost everywhere else, he should not have spent a day on death row, let alone 15 years.

Provenzano was as paranoid when he shot three people in an Orlando courtroom as on the day he died. Though his jurors rejected insanity as a defense, five of the 12 recognized it as a reason to spare his life. In 28 other states, one juror would have been enough, but Florida prosecutors and pro-death politicians have been blind to the simple justice of requiring a unanimous vote for execution.

The issue is not about turning dangerous people loose or "letting them off," as the death claque misstates the case. Florida's alternative to a death sentence is life in prison without parole, and there is nothing pleasant about that. However, it suits every legitimate purpose of a modern criminal justice system. The blood lust that only executions satisfy belongs to an earlier age.

Ironically, there was a time when Florida's condemned men and women could appeal for clemency with a fair chance that the governor and Cabinet would spare their lives. From 1925 through 1964, when an unofficial moratorium settled in, governors commuted 22 percent of the death sentences that reached their desks, and that was when parole was still possible. Doyle Carlton (1929-1933) was the most merciful, sparing eight of 17. Spessard Holland (1941-1945) was the least, executing 35 of 39. As executions resumed under Bob Graham (1979-1986), he commuted six, but none after the first year of his second term.

Whatever Graham saw in polls or heard from advisers set a pattern that has reduced clemency to an exercise in futile pleading. Forty-seven executions have followed with no death-row clemency recommendations from Graham, Bob Martinez, Lawton Chiles or Jeb Bush, though Chiles and the Cabinet avoided executing a mentally retarded prisoner by postponing a decision for 25 years.

"There used to be a sort of political space for governors to use clemency, and they weren't attacked for it," says Margaret Vandiver, a University of Memphis professor who gleaned the statistics as a graduate student at Florida State University. "They were able to look at cases and use the clemency power for reasons of justice or reasons of mercy. . . ."

The longer they refuse to use it, the harder it will be. If Bush could not find reason in Provenzano's case, it is difficult to imagine any in which he would. There is no longer a safety net for the judiciary's mistakes or a venue for mercy. Judges will wash their hands of a rule-bound case by remarking on the possibility of clemency, whereupon governors will wash theirs, as Bush did last week, by saying they find "no reason to alter" the judgment of the courts. It is circular, disingenuous logic that mocks what the people of Florida, through their Constitution, have entrusted and expected governors to do.

Bush contends that Florida provides extensive due process to death row inmates whose attorneys claim they are insane. This is true, but beside the point. The statute leaves it to the courts to define insanity, and the courts apply a remorseless standard. As the Florida Supreme Court put it in a 5-2 decision allowing Provenzano's execution, "The Eighth Amendment only requires that defendants be aware of the punishment they are about to suffer and why they are to suffer it." Perilously few are so far gone as to not know that.

Moreover, the burden is on the prisoner to prove he is insane. Circuit Judge E. Randolph Bentley, who ruled that Provenzano was fit to be killed, decried this in a decision that virtually pleaded with the Supreme Court or the governor to overrule him.

"If the burden were on the state to prove beyond a reasonable doubt that Provenzano is competent to be executed," he wrote, "the court would conclude that there is a reasonable doubt. The court understands that this is not the standard, and the state does not have the burden to prove anything. Nevertheless, given the nature of the penalty, the court cannot help but be troubled by this fact."

Responsible citizens will be equally troubled. They will expect their Legislature to enact a modern definition of insanity precluding the execution of those whose illnesses, like Provenzano's, utterly overwhelm their senses of reality and of right and wrong. They will insist upon a unanimous vote as a predicate for the death sentence. And they will remind their governor that the virtue of mercy is still an indispensable attribute of the human race.

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