Florida Death Row Advocacy Group

Florida's execution process faces death knell
Palm Beach Post February 06, 2006

The way Florida administers the death penalty is fast becoming a national question after the U.S. Supreme Court halted 2 executions in recent weeks because of concerns over the state's use of lethal injection.
The high court is considering whether 2 Florida killers have the right to challenge their death sentences on civil rights grounds based partly on a recent study that indicates lethal injections may cause more pain than previously thought, possibly violating the constitutional ban on cruel and unusual punishment.
But the question in Washington, D.C., is only part of the possible trouble facing Florida's death sentence, as the Florida Supreme Court suggested in a recent decision that legislators review the state's process because it may violate federal law.
Florida is the only state in the country that does not require a unanimous jury verdict to determine at least one of the following two matters: whether a case qualifies for the death penalty or in the final vote on whether the death penalty should be ordered. Ultimately, the judge in each situation has the final say in Florida; the jury only makes a recommendation.
"Florida's all alone out here. That's something that usually gets the (U.S.) Supreme Court's attention," said Richard Dieter, executive director of the Death Penalty Information Center. "Sometimes you want to preempt that and change your own law before the Supreme Court steps in and you have no law."
Gov. Jeb Bush said the U.S. Supreme Court decision to stay the two recent executions probably will halt all executions in Florida until the justices make a final decision, which could come as early as April.
That case addresses only the procedural question of whether death row inmates can get a hearing to determine whether Florida's lethal injection mixture is humane. If the Supreme Court rules that death row inmates have a right to such a hearing, a federal judge would have to hear a case on whether Florida's injection is cruel or inhumane.
Bush defended Florida's system last week and said the problem was that lawyers and the courts had skewed the situation in favor of death row inmates to allow them to drag out their appeals processes for years.
"The advocates of abolishing the death penalty are winning without any discussion by elected officials in the legislature," said Bush, a death penalty proponent. "I think it's wrong."
The Florida Legislature soon will hear plenty of debate about the death penalty, as committees have begun fielding testimony about bills that would require a unanimous jury verdict to impose it. The bills are bipartisan: A Democrat is sponsoring the House version and a Republican filed the identical Senate version.
Bush and House Speaker Allan Bense, R-Panama City, have voiced their apprehension about tinkering with Florida's death penalty laws.
"These are juries of our peers, hand-selected by both the prosecutor and the defense," Bense said. "If you have a majority that want the death penalty, then it should stay."
But Senate President Tom Lee, R-Brandon, isn't so sure.
Lee was at the Florida State Prison Jan. 25 when Clarence Hill was supposed to be executed. Hill, who shot and killed a Pensacola police officer in 1982, was the first man the U.S. Supreme Court recently granted a stay. On Tuesday, the high court did the same for Arthur Rutherford, a Panhandle man convicted of killing a Milton woman in 1985, on the same grounds.
Lee went to Starke to witness Hill's execution because he understands that the Florida Supreme Court was sending a clear message to the legislature and he wanted to learn about a subject he realized would be key during the upcoming session, said his spokeswoman, Kathy Mears.
"It is important to open up the dialogue and debate this issue given the pronouncement by the Supreme Court justices coupled with his (Lee's) desire to ensure that the death penalty remains a policy in Florida," Mears said.
Death penalty laws have undergone many changes as cultural norms have evolved over the years, with the U.S. Supreme Court prompting many of those changes.
Aggravating factors issue
They have ruled the execution of minors and mentally retarded people unconstitutional but also changed the way the death penalty is imposed with a lesser-known case in 2002.
In Ring vs. Arizona, the high court found that juries, not judges, must make certain factual determinations before imposing a death sentence. Those are referred to as aggravating factors, heightened criteria a crime must fall into after a defendant is found guilty of the crime, but before being considered for the death penalty.
In Ring vs. Arizona, the jury found the defendant guilty, but the judge alone imposed a death sentence.
It was unclear at the time whether that ruling affected four states, including Florida, that use a so-called "hybrid" sentencing system. In those systems, a judge makes the ultimate decision on life or death, but does so with a recommendation from the jury on the aggravating factors and the decision between life and death.
Since Ring, 3 of the states have changed their systems, according to a Florida Senate staff analysis. Alabama and Indiana juries must find aggravating factors unanimously before a death sentence can be imposed, and Delaware placed the entire decision-making process in the hands of the juries.
"We're the only ones who didn't change our system as a result of Ring," said D. Todd Doss, a Lake City attorney who represents Hill and is handling another dozen death penalty cases.
The Florida Supreme Court, in a strongly worded October opinion, indicated that the legislature should reconsider the hybrid system because it may be in violation of Ring and other similar opinions from the U.S. Supreme Court.
"The bottom line is that Florida is now the only state in the country that allows the death penalty to be imposed even though the penalty-phase jury may determine by a mere majority vote both whether aggravators exist and whether to recommend the death penalty," wrote Justice Raoul Cantero, a Bush appointee, in his majority opinion.
But changing to a unanimous jury verdict has become a very divided debate.
Last month, a line of state attorneys from around Florida spoke before the House Justice Council to warn them of the possible implications of a unanimous requirement.
"I think this would be the death blow to the death penalty in Florida, when one juror would have the ability to stop the death penalty from being imposed," Tallahassee State Attorney Willie Meggs said.
The prosecutors listed about a dozen murderers who did not receive a unanimous jury recommendation for death, including Ted Bundy and Aileen Wuornos.
Jerry Blair, state attorney for a seven-county district between Tallahassee and Jacksonville, said, "If the legislature accepts the invitation of the Florida Supreme Court and tampers with Florida's death penalty statute, my fear is that we are going to open a Pandora's box that will ensure that our death penalty statute will continue to be litigated and re-litigated on constitutional issues and the death penalty in Florida will become even more of a hollow threat than it is at the current time."
But others said the prosecutors are being misleading.
In Florida death penalty cases, juries make one vote and report that back to the judge, said Larry Spalding of the ACLU of Florida. But in states where unanimous verdicts are required, the jurors continue voting until they reach a consensus, just as they do when deliberating about guilt or innocence.
Because of that change, Spalding said a unanimous verdict requirement would in no way end the death penalty in Florida.
"If that was true, we wouldn't see any death sentences coming out of Texas unanimous jury required," Spalding said. "We wouldn't see any death sentences coming out of California, out of Virginia, out of Georgia, where unanimous juries are required."
Slow appeal process
Prosecutors also said tinkering with the death penalty law would further slow down the appeal process, which already takes years to resolve. All death sentence cases are appealed automatically to the Florida Supreme Court and prosecutors said changing the laws now would complicate the entire process.
But Michael Radelet, a professor and chairman of the sociology department at the University of Colorado, said the opposite would be true.
Radelet studied Florida's death penalty system as a University of Florida professor for 2 decades and said much of the reason for the delays in appeals is because people can be sent to death with a 7-5, 8-4 or 9-5 vote. In those cases, death row inmates can offer strong appeals, arguing that only 1 or 2 votes could have swayed the decision.

In fact, Radelet said judges have ordered death sentences 60 times in the past 30 years, despite a jury's recommendation for a life sentence. The Florida Supreme Court overturned most of the cases, but 4 inmates were executed.

Those weaker execution cases serve as the "sand in the executioner's gas tank," a lag in the system that would disappear if all cases were unanimous, Radelet said.
"What is keeping those people alive who had unanimous jury recommendations for death is that the court has to spend an equal amount of time on cases where there were only 7 or 8 or 9 votes for death," he said. "So what happens, in a funny sort of way, is that if we wanted more executions, we'd be sentencing fewer people to death."
Rep. Jack Seiler, D-Wilton Manors and the House sponsor of the bill, concedes that fewer people would be sentenced to death under a system that required a unanimous verdict.
But Seiler, a death penalty proponent like Senate sponsor Sen. Alex Villalobos, R-Miami, would prefer that system if it meant that those who are ordered to death are sent through a proper, constitutional system.
"Why are we the only state like this?" Seiler said. "Does that mean that maybe we're not constitutionally sound? I don't know. But I don't want further doubt in the area of capital punishment. I don't want capital punishment tossed out or abolished in Florida because we're not doing things correctly. That's why we're doing this."
Source: Palm Beach Post