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My Turn
Other Views from Those in the Know
Raoul Cantero and Mark Schlakman
former Florida Supreme Court justice; Innocence Commission chair
Florida Fails in Reluctance to Review Death Penalty

Challenging the status quo to promote fairness and impartiality in our justice system can be a daunting task. When Florida's death penalty process is at issue, the challenge can be further complicated because such efforts are often equated with being soft on crime and insensitive to victims' concerns or characterized as veiled attempts to abolish the death penalty.

The alarming backdrop is that the Death Penalty Information Center, an independent Washington, D.C.-based nonprofit organization, reports that, since 1973, Florida has reversed more death sentences than any other state.

For instance, Frank Lee Smith was exonerated posthumously after the actual perpetrator was identified. He died of cancer after languishing on Death Row for 14 years.

Juan Melendez was exonerated after almost 18 years on Death Row when a taped confession by the actual perpetrator was discovered.

Reasonable people may disagree about the merit or efficacy of capital punishment, but all should agree that the process must be as fair and impartial as possible.

More than five years ago, the American Bar Association released a report developed by a team of eight Florida-based experts that raised serious concerns about many aspects of Florida's death penalty process, but few of its recommendations have been implemented. The report did not take a position on capital punishment; its objective was to improve the administration of justice. Similarly, that is the thrust of our opinion editorial.

One of the ABA report’s key recommendations called for state officials to conduct a comprehensive review of Florida's death penalty process, something that has not been attempted in more than 10 years; even then it was limited in scope. Any of the state's three branches of government could initiate work on this in cooperation with the other two.

At present, there are at least several dozen death penalty cases deemed to be “legally ripe” for routine clemency investigation given that the courts denied relief in the initial challenges to the convictions and sentences. That's an inordinately high number.

For perspective, clemency is an executive branch function that is neither subject to legislative oversight or judicial review. It is a process cloaked in secrecy. Death penalty cases ultimately are considered by the governor after appointment of clemency counsel and investigation by the Parole Commission (acting in support of the governor and Cabinet sitting as Florida's Clemency Board) for purposes of determining whether there are independent grounds to refrain from signing a death warrant. The governor has broad discretion.

The ABA report's related findings and recommendations call for re-evaluation of the framework, scope and procedures relating to such clemency investigations, which have remained largely unchanged for many years; deliberations, if any, appear to be perfunctory from the outside looking in.

One of the report’s key findings underscores that Florida is an outlier in allowing capital-case juries to find aggravating circumstances and recommend a death sentence by a simple majority. The 32 other remaining death penalty states require a form of unanimity.

Some counter that if unanimity had been 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, it is the judge who imposes death sentences in Florida.

We may be reaching a turning point.

Sen. Thad Altman, R-Melbourne, filed a bill in anticipation of the 2012 regular state legislative session that would require unanimity in future penalty phase jury deliberations for both advisory recommendations of death and findings regarding the presence of aggravators, the basis for any death sentence.

Altman’s bill addressed issues raised in Evans vs. McNeil, a recent case out of the Southern District in which U.S. District Judge Jose Martinez declared related aspects of Florida's capital case sentencing scheme unconstitutional. The state has appealed.

His bill also addressed issues raised in Steele vs. State, a 2005 Florida Supreme Court opinion that called for the Legislature to revisit Florida's death penalty statute to require unanimity for jury recommendations of death. Then-Gov. Jeb Bush observed that the issue was "definitely worth consideration" and cautioned legislators not to ignore the court.

Legislators ignored the court.

Simply put, Altman's bill would have helped to ensure that the death penalty is reserved for the most heinous crimes. The bill died in committee without a hearing.

Legislative leadership seems to be falling prey to the notion that any change in Florida's death penalty statute might result in unintended consequences and therefore should be resisted at virtually all costs, essentially gambling that Evans will be reversed on appeal.

Regardless of the outcome of the state's appeal in Evans, maintaining the status quo and thereby Florida's outlier status in this regard among all other death penalty states does not serve the cause of justice. States such as Texas and Georgia, known for their pro-death-penalty stance, require unanimous juries.

So should we.

Raoul Cantero, a former Florida Supreme Court justice appointed by Gov. Jeb Bush, is in private practice in Miami. Mark Schlakman, senior program director for The Florida State University Center for the Advancement of Human Rights, is board chairman for the Innocence Project of Florida and was a member of the ABA's Florida Death Penalty Assessment Team.

by Dr. Radut.