The Florida Senate last week passed a bill to speed up executions entitled, the Timely Justice Act. It was sponsored by Rep. Matt Gaetz, R-Fort Walton Beach. He’s the House Criminal Justice Subcommittee chairman. The House had passed the bill earlier by an overwhelming margin after members quoted from scripture.
Simply put, it runs counter to current trends in death penalty legislation around the country. Gaetz’s apparent calculus was that justice will be served if families of murder victims don’t have to wait for finality, which begs the question as to usage of the term “justice” in this instance.
According to legislative staff analysis, individuals spend an average of 13.22 years on death row in Florida prior to execution, less than the national average.
In February, the Florida Bar adopted a resolution urging state officials to conduct a comprehensive review of the state’s entire death penalty process by all branches of state government, essentially to improve the administration of justice and thereby minimize the risk that Florida might execute an innocent person (or other individuals who should not be subject to the death penalty), a position that we sought for almost two years.
On March 22, the Supreme Court of Florida took a step in that direction by establishing a Postconviction Proceedings Subcommittee, chaired by Third DCA Judge Kevin Emas, to seek input from key stakeholders and file a report by late September.
The alarming backdrop is that the Florida has imposed more death sentences than any other state during the past two years and, according to the Death Penalty Information Center, has overturned more death sentences than any other since 1973.
The American Bar Association released a report in 2006 developed by a team of eight Florida-based experts that raised serious concerns about Florida’s death penalty process.
One of its key findings notes that Florida is an outlier in allowing capital-case juries to find aggravating circumstances and recommend a death sentence by a simple majority, e.g. 7-5.
Some counter if unanimity were required, convicted serial killers such as Ted Bundy and Aileen Wuornos wouldn’t have received death sentences because both penalty-phase jury deliberations resulted in 10-2 votes.
Not necessarily. Had those juries been instructed that unanimity was required, the nature of the deliberations would have changed, including conceivably the vote, and while the judge is expected to place great weight on a jury’s recommendation, the judge imposes death sentences in Florida.
Gaetz’s controversial bill is now headed to the governor. It purports to require the governor to issue a death warrant within 30 days of completing clemency review, if clemency is denied, and establishes requirements for postconviction filing deadlines, case management and other matters traditionally within the ambit of the judicial branch.
It also reestablishes the office of the Capital Collateral Regional Counsel for North Florida to provide legal representation to inmates sentenced to death during postconviction proceedings, which was esliminated pursuant to a pilot project launched during Gov. Jeb Bush’s administration that relied instead upon private registry counsel. Similar offices in south and central Florida remained open.
Although some highly qualified lawyers participated in the registry, the overall quality of the lawyering has been uneven, at best, and sometimes abysmal. The reestablishment of CCRC-North is long overdue.
Here’s the bottom line:
The Florida Supreme Court will have opportunity to review and, as appropriate, strike provisions that don’t pass constitutional muster without invalidating the entire act since it contains a severability clause.
The governor has broad discretion to manage the capital caseload through the clemency process. Accordingly, the notion that the bill’s enactment would result in a spike in the number of executions is not necessarily well-founded.
Approximately 100 capital cases are reportedly legally ripe for warrant consideration, with 13 amid some stage of clemency review, which suggests the governor may have concerns about issuing death warrants in a number of these cases. Said another way, this cuts against a premise upon which the Timely Justice Act seemingly was predicated, that the judicial branch is part of the problem.
On balance, it would not be unreasonable for the governor to sign this bill, especially if he were to signal support for the same kind of meaningful reform that Texas, recognized as one of the most pro-death penalty states in the nation, is advancing including eyewitness identification reform and various means to address systematic flaws in Texas’ death penalty process, similar to the findings and recommendations of the ABA Florida Death Penalty Assessment Team Report in 2006.
Raoul Cantero is a former Florida Supreme Court justice now in private practice in Miami. Mark Schlakman, senior program director for the Center for the Advancement of Human Rights at Florida State University, is immediate past board chair of the Innocence Project of Florida.