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Death penalty stirs debate

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© St. Petersburg Times, published October 16, 1998

Floridians next month can vote on a constitutional amendment billed as a way to "preserve the death penalty." But critics say it does much more.

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They say it could allow the state to execute criminals who wouldn't be put to death under our current system.

It would make it impossible for Florida courts or lawmakers to stop using a particular method of execution, such as electrocution -- unless the U.S. Supreme Court had struck down that method.

And it has the potential to affect a wide number of other criminal penalties, a consequence that would not be obvious from the summary that will appear on the ballot, critics say.

But voters may assume the amendment simply asks whether people want to continue the death penalty.

"That's why I think it's so misleading," Pinellas-Pasco Public Defender Robert Dillinger said.

Florida's Catholic bishops this week urged people to vote against the amendment partly because it "is intended to increase, rather than restrain, the use of the death penalty in Florida."

State Rep. Victor Crist, R-Tampa, said he fought to place the amendment on the ballot because he wanted to make it harder for Florida's courts to overturn death sentences of the more than 300 convicted killers on death row.

Execution "is the ultimate punishment for the most heinous of crimes. The people who are on death row are guilty of crimes of the worst degree. These are not simply murderers, these are people who have put their victims through sheer hell before killing them," he said. Amendment 2 is one of 13 proposed revisions and amendments to the Constitution that voters can approve or reject on Nov. 3.

Dillinger said he's troubled by sections of Amendment 2 that would federalize the Florida Constitution. One section would require Florida to allow any type of execution that the U.S. Supreme Court allows. Another would prevent Florida courts from declaring punishments excessive unless they meet the U.S. Constitution's standard of "cruel and unusual."

He says it should be up to Florida to decide whether it wants more restrictions on how and when to execute people.

"If the citizens of Florida want something different from the feds, we have every right to do that," he said.

University of Florida law professor Christopher Slobogin noted that the amendment would hand "Florida's state sovereignty to another entity, namely the (U.S.) Supreme Court. Ironically, that's something that your typical conservative wouldn't like."

Crist isn't troubled.

"If it's good enough for the federal government, it should be good enough for Florida," Crist said. The amendment would make it clear that the state intends to continue executions, "rather than leaving it up to the opinion of a judge who may not necessarily share that same opinion."

In a memo opposing the amendment, Assistant Palm Beach Public Defender Richard Greene cited the case of Tampa murderer Gary Tillman. His death sentence was reduced to life after the Florida Supreme Court decided it could not carry out a legal procedure called a "proportionality review," in which it would compare Tillman's death sentence to those of other killers.

But the U.S. Supreme Court has specifically said that it does not require such reviews, Greene's memo said. Which raises the prospect that in a case like Tillman's, the defendant might be executed after all.

"That's a possible result," Greene said in a telephone interview. But he added that "it depends on how the courts interpret this amendment," if it passes.

Greene wrote his memo for the Florida Public Defenders Association, which opposes the amendment.

The Florida Prosecuting Attorneys Association has not taken a position on the matter. Pinellas-Pasco State Attorney Bernie McCabe said he has not decided how to vote on it himself, because he's not sure the amendment is necessary.

The amendment would change a section of the Florida Constitution that forbids the state from carrying out "cruel or unusual punishment." The U.S. Constitution forbids punishments that are "cruel and unusual." It would mean Florida defense lawyers would have to satisfy both requirements when fighting a death sentence.

Greene said that while the cruel and unusual standard is most commonly argued in death sentence cases, it also could be used in other criminal cases.
-- Times staff writer Curtis Krueger can be reached at krueger@sptimes.com or at (727) 893-8232.

Want to know more?

To learn more about the amendments and revisions, look for the Times' Know Your Candidates guide on Oct. 28, or click onto these Web sites:

Florida Constitution Revision Commission: http://www3.law.fsu.edu/crc/

Florida Secretary of State: http://election.dos.state.fl.us/online/index.htm


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