Death penalty system broken in Florida and other Southern states

A recent American Bar Association report on Florida's death penalty prompted Florida newspaper editorials this week. Attorney Mark R. Schlakman, program director for Florida State University's Center for the Advancement of Human Rights and a participant in the ABA Florida Death Penalty Assessment Team, writes in the Tallahassee Democrat:

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.

Karen J. Mathis, president of the American Bar Association, writes in the Orlando Sentinel:

In assessing Florida's system, the team measured state law, procedure and practices against protocols developed by the ABA to evaluate death-penalty jurisprudence. Its findings are troubling. It found the state did not comply with 23 protocols, partially complied with 36, and fully complied with only eight. The team was unable to assess compliance with 25 protocols because the records do not exist or were not easily obtainable.

The team's specific concerns reveal a system in which people charged in death-penalty cases do not receive qualified or adequately compensated lawyers; juries can recommend death sentences with only a simple majority in agreement; perpetrators of capital crimes against white people are executed far more frequently than perpetrators of capital crimes against minorities; and clemency decisions are veiled in secrecy. Knowing these problems makes Florida's 22 death-penalty exonerations less surprising but no less shocking.

The team is not alone in voicing many of these concerns. Two sitting Florida Supreme Court justices have decried the poor qualifications of lawyers registered to handle post-conviction death penalty cases. In 2000, the Governor's Task Force on Capital Cases recommended reforms to eliminate potential or actual racial bias in Florida's capital-punishment system, and in 1991 the Florida Supreme Court Commission on Racial and Ethnic Bias concluded that the death penalty is "not colorblind." In a decision in 2005, the Florida Supreme Court called on the Legislature to pass a law requiring jury unanimity in sentencing recommendations; legislation to this effect was introduced but failed to pass.

Mr. Schlakman and Ms. Mathis note the troubling fact that 22 death row inmates have been exonerated since the death penalty was reinstated in 1973 - more than any other state in the nation. The ABA report notes that "During that same time, Florida executed sixty death-row inmates. Therefore, the proportion exonerated exceeds thirty percent of the number executed."

While it doesn't advocate a moratorium or take any position for or against the death penalty, the ABA's research found a number of serious deficiencies as noted by Ms. Mathis. Here is a brief summary of their extensive report:

Florida Leads the Nation in Death-Row Exonerations: Combined, these death-row exonerees served approximately 150 years in prison before being released.

Inadequate Compensation for Conflict Trial Counsel in Death Penalty Cases: The statutory fee cap [..] and the failure to regularly provide for partial payments have the potential to dissuade the most experienced and qualified attorneys from taking capital cases and may preclude those attorneys who do take these cases from having the funds necessary to present a vigorous defense.

Lack of Qualified and Properly Monitored Capital Collateral Registry Counsel: Registry attorneys, who are being appointed with greater frequency to capital collateral cases since the closure of the Capital Collateral Regional Counsel Office in the Northern Region of Florida, need only minimal trial and appellate experience to qualify for appointment and are not adequately monitored.

Inadequate Compensation for Capital Collateral Registry Attorneys: In at least some instances, registry attorneys handling capital collateral cases are not fully compensated at a rate that is commensurate with the provision of high quality legal representation.

Significant Capital Juror Confusion: Death sentences resulting from juror confusion or mistake are not tolerable, but research establishes that many Florida capital jurors do not understand their role and responsibilities when deciding whether to impose a death sentence.

Lack of Unanimity in Jury's Sentencing Decision in Capital Cases: The Florida Supreme Court recently noted that "Florida is now the only state in the country that allows a jury to find that aggravators exist and to recommend a sentence of death by a mere majority vote." Additionally, a recent study found that Florida's practice of permitting capital sentencing recommendations by a majority vote reduces the jury's deliberation time and thus may diminish the thoroughness of the deliberations.

The Practice of Judicial Override: Between 1972 and 1999, 166 of the 857 first-time death sentences imposed (or 19.4 percent) involved a judicial override of a jury's recommendation of life imprisonment or life imprisonment without the possibility of parole. [..] Florida law still authorizes the practice.

Lack of Transparency in the Clemency Process: Full and proper use of the clemency process is essential to guaranteeing fairness in the administration of the death penalty. Given the ambiguities and confidentiality surrounding Florida's clemency decision-making process and the fact that clemency has not been granted to a death-sentenced inmate since 1983, it is difficult to conclude that Florida's clemency process is adequate.

Racial Disparities in Florida's Capital Sentencing: [A] criminal defendant in a capital case is, other things being equal, 3.4 times more likely to receive the death penalty if the victim is white than if the victim is African-American.

Geographic Disparities in Florida's Capital Sentencing: The cause of these geographic disparities is unclear, but one possible variable is the charging decision. Research in other states indicates that charging practices vary from prosecutor to prosecutor and few of the prosecutor offices in Florida that we contacted have written polices governing the charging decision. Research also suggests that some capital charging decisions in Florida are influenced by racial factors.

Death Sentences Imposed on People with Severe Mental Disability: The State of Florida has a significant number of people with severe mental disabilities on death row, some of whom were disabled at the time of the offense and others of whom became seriously ill after conviction and sentence.

Florida is not alone among Southern states with broken death penalty systems. The ABA's study of the death penalty in Alabama and Georgia reveals similar problems.

In Georgia, the ABA found inadequate funding for defense counsel, lack of defense counsel for state habeas proceedings, racial disparities in capital sentencing, inappropriate burden of proof for mentally retarded defendants, inadequate jury instructions on mitigation, and inadequate proportionality reviews.

In Alabama, the ABA found inadequate counsel at every stage of the capital process, no law requiring access to DNA evidence for people convicted of capital crimes, no laws prohibiting execution of mentally retarded defendants, judicial override of jury death penalty recommendations, inadequate proportionality review, and failure to maintain adequate data and records of death penalty cases for review and oversight.

The United States remains in the exclusive club of countries that impose the death penalty, with other such illustrious fellow members as Vietnam, Saudi Arabia, Sudan, Afghanistan, and Iraq. While joining Canada and Mexico in abolishing the death penalty might seem like an easy solution, lack of fairness and equality, racial disparity, and other problems found by the ABA's research would remain for defendants facing life without parole. On the other hand, the innocent and wrongly convicted would still be alive to pursue justice once America addresses the root causes of failure in our judicial system.

Unfortunately, this will never be a campaign issue. No politician in the U.S. wants to be seen as soft on crime. Further, Americans overwhelmingly approve of the death penalty by a margin of 65% to 32%, although there has been some progress since 1996 when 77% approved. This suggests that a political solution is not in America's foreseeable future. The heavy lifting will have to be done by organizations such as the ABA and human/civil rights advocates if we ever hope to shift public opinion towards favoring equal justice for all.