Florida must revise death penalty process

Originally published October 9, 2006

Florida must revise death penalty process

http://www.tallahassee.com/apps/pbcs.dll/article?AID=/20061009/OPINION05/610090303/1006/OPINION

By Mark R. Schlakman MY VIEW

As the campaign season shifts into high gear, statewide officeholders, members of the Florida Legislature and candidates who are running for these posts must resist the temptation to engage in death-penalty demagoguery. However, this temptation may prove to be overwhelming for some given that two death warrants are pending; both are scheduled to be carried out later this month.

One death warrant has Danny Rolling's name on it. Rolling, as many may recall, is the infamous perpetrator of the brutal murders of five college students in Gainesville in 1990 who pleaded guilty and was sentenced to death in 1994 for committing these heinous crimes.

The challenge for politicians and other key actors, especially given the media attention that notorious cases typically generate, is to separate their own personal support for or opposition to capital punishment and public outrage over such cases and recognize that Florida's death-penalty process is fraught with problems.

A report released recently by the American Bar Association's Florida Death Penalty Assessment Team documents many of the issues and problems that must be addressed to minimize the risk that the state might execute an innocent person. Clearly, guilt was not at issue in the Rolling case.

It is important to note that this report neither supports nor opposes the death penalty; nor does it call for a moratorium on executions. The ABA endeavored to ensure that the eight-member Florida team was diverse and balanced to reflect prosecutorial, defense, judicial and academic perspectives along with other related subject matter expertise.

The report's recommendations are intended to improve fairness and accuracy in our criminal-justice system. Moreover, if implemented properly, it follows that some of these recommendations might also have the practical effect of reducing the time that it takes many death-penalty cases to move through the criminal-justice system and the appeals process.

The alarming backdrop is that, since 1973, Florida has exonerated more death-sentenced inmates than any other state. Tragically, one inmate was exonerated after he died of cancer on Death Row. A related cause for concern is the troubling observation by Justice Raoul Cantero, who was appointed to the Florida Supreme Court by Gov. Jeb Bush, that some legal representation provided by private registry lawyers in capital-case proceedings was among the worst lawyering that he had ever seen.

Yet another cause for concern relates back to a 1991 finding by the Florida Supreme Court's Racial and Ethnic Bias Commission that a criminal defendant was much more likely to receive a death sentence when the victim was white than when the victim was African American.

In 2000, while stopping short of acknowledging that such bias undermined the criminal-justice system, the Governor's Task Force on Capital Cases made various recommendations that called for further review; however, many of those recommendations were never implemented.

Beyond concerns regarding racial and ethnic bias, there is also cause for concern regarding socioeconomic and geographic bias, the latter attributable in part to the fact that uniform protocols have not yet been adopted that would provide guidance to Florida's 20 elected state attorneys when deciding whether to seek the death penalty in any given case.

Therefore, when prosecutors from different judicial circuits assess substantially similar criminal cases, it is conceivable that prosecutors from judicial circuit A might decide to seek the death penalty while prosecutors from judicial circuit B might opt for life without parole, heightening concerns over whether the death penalty is applied consistently throughout the state.

One of the report's recommendations embraces a recent Florida Supreme Court opinion that called upon the Legislature to revisit the state's death-penalty statute and require unanimity in capital-case penalty-phase proceedings. The court observed that Florida is the only remaining state of the 38 death-penalty states in America today "that allows a jury to decide that aggravators exist and to recommend a sentence of death by a mere majority vote."

Despite the court's strongly worded opinion, the 2006 Legislature was unresponsive to the court's call for action.

Interestingly, it was widely reported that Attorney General Charlie Crist opposed this change. However, Gov. Bush was quoted recently as saying that the measure is "definitely worth consideration" and cautioned legislators not to ignore the court.

Each of the three branches of our state government has major responsibilities and significant roles to play. Problems in one area can adversely affect what might otherwise be adequate procedures in another.

Florida residents expect a system of justice that engenders confidence based upon fairness and accuracy. It is in the best interests of every Floridian for the state to invest the necessary resources and to take long-overdue steps to ensure that the death penalty is administered fairly.

Attorney Mark R. Schlakman is a program director for Florida State University's Center for the Advancement of Human Rights and was one of eight individuals invited to participate on the ABA's Florida Death Penalty Assessment Team.

Contact him at mschlakman@admin.fsu.edu.