Saturday, September 19, 2009

Let's talk death penalty in 2010 by

Raoul G. Cantero III and Mark R. Schlakman

Three years ago, the American Bar Association released a Florida Death Penalty Assessment Team report that documented numerous concerns about Florida's death penalty process. Since then, neither the government nor The Florida Bar has done much to remedy the problems.

To study Florida's death penalty, the ABA assembled a highly credentialed eight-member team that reflected prosecutorial, defense, judicial and academic perspectives, among others. After almost two years of research and analysis, the team resolved that its findings and recommendations had to be unanimous to be included. Individual members' perspectives ran the gamut, but the final report was intended to promote fairness and accuracy in our criminal-justice system without regard to one's views on capital punishment.

Among the findings was that legal representation of death penalty defendants in postconviction proceedings is often abysmal. The report makes several recommendations, including reinstating the capital collateral regional counsel office (CCRC) in the Northern Region of Florida. This office was disbanded as part of a still-ongoing pilot project launched during Jeb Bush's tenure that, in effect, privatized the northern office of the CCRC, thereby relying almost exclusively upon private registry counsel to handle postconviction appeals in death penalty cases.

Gov. Charlie Crist has expressed support for reinstating the Northern CCRC office.

Another recommendation embraced a unanimous Florida Supreme Court opinion that called upon the Legislature to revisit the death penalty statute. The report, like the opinion, observed that Florida is the only death penalty state (out of 35) "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 Legislature has been unresponsive. It was reported that Gov. Bush said the issue was "definitely worth consideration" and cautioned legislators not to ignore the court. Yet Gov. Crist has voiced opposition to the recommendation.

Another alarming problem with Florida's death penalty is the number of defendants on Death Row who were later exonerated. The Death Penalty Information Center, a Washington, D.C.-based nonprofit organization that provides independent analysis on issues concerning capital punishment, advises that Florida has exonerated more death-sentenced inmates than any other state since 1973. One was exonerated after he died of cancer on Death Row.

The report also expresses concern about socioeconomic and geographic bias, the latter attributable in part to the fact that Florida's 20 state attorneys do not have uniform protocols to decide when to seek the death penalty. When prosecutors from different judicial circuits assess substantially similar criminal cases, prosecutors from one circuit might opt for the death penalty while prosecutors from another might opt for life without parole. This heightens concerns over whether the death penalty is applied consistently.

The report contains many other recommendations.

As the 2010 campaigns for statewide office and the Legislature take shape, conventional wisdom suggests that both Republicans and Democrats will resist taking positions that could be perceived as anything but tough on crime and strong on the death penalty. Circuit judges, who preside over capital cases, while nonpartisan and subject to the judicial canons, are not completely immune from such dynamics, given that they also face the voters periodically.

The challenge for those who hold and aspire to elected office, including Florida's 20 state attorneys, is to ensure that personal perspectives and the public outrage arising out of heinous crimes do not overshadow the fact that Florida's death penalty process is fraught with problems. Floridians expect a system of justice that engenders confidence based upon fairness and accuracy. With regard to the state's death penalty process, in many respects that standard has proven to be elusive.

We hope that this election cycle will provide an opportunity to openly and honestly discuss these issues and to seriously consider possible solutions.
Additional Facts

# Raoul G. Cantero III is a former Florida Supreme Court Justice appointed by Gov. Jeb Bush. He resigned in 2008, after six years, to return to private practice in Miami. Contact him at

# Mark R. Schlakman is senior program director for Florida State University's Center for the Advancement of Human Rights and is board chair for the Innocence Project of Florida. He was one of eight members of the ABA's Florida Death Penalty Assessment Team. Contact him at

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