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The Florida Supreme Court is poised to resolve the dispute between Gov. Rick Scott and State Attorney Aramis Ayala from Orange and Osceola counties involving Ayala’s refusal to seek the death penalty and Scott’s reassignment of more than 20 first-degree murder cases to another state attorney.
However, there are wide-ranging issues seemingly hidden in plain view that transcend questions pertaining to a prosecutor’s discretion regarding whether to seek the death penalty.
Beyond this dispute between Scott and Ayala and irrespective of one’s perspective regarding capital punishment, justice would be served if state officials were to conduct a comprehensive review of Florida’s entire death-penalty process by all branches of government.
As a practical matter, a court alone, including the Florida Supreme Court, can’t necessarily reach the full spectrum of process issues within the bounds of any single case.
For perspective, in 2011 the Executive Committee of The Florida Bar’s Criminal Law Section, comprised of judges, prosecutors and criminal-defense lawyers, voted overwhelmingly to recommend this kind of review — without expressing support for or opposition to capital punishment. The committee has renewed this position every year since.
Several months before the committee took action, during the closing hours of Florida’s regular legislative session, a House conforming bill that wasn’t even debated in the Senate abolished Florida’s Commission on Capital Cases. This was the only statutory entity responsible for monitoring Florida’s death-penalty process and reporting to all three branches of government. The stated rationale was to avoid $400,000 in annual costs. No other such entity exists today.
Simply put, credible research indicates there’s much to monitor and, arguably, to address. For instance, the American Bar Association convened a diverse team of eight Florida-based experts who reached unanimous agreement on a range of findings and recommendations for Florida deathpenalty-process reform grounded upon nearly two years of research, analysis and deliberations. The team released its report in 2006.
Given my background as an assistant general counsel to Gov. Lawton Chiles, I was invited to join this team, which included an elected Duval County state attorney, a retired Leon County public defender who served as director of the then-statewide office that handled post-conviction appeals in death-penalty cases, and a former chief justice of the Florida Supreme Court who chaired Chiles’ Criminal Justice Task Force and served as vice chair of the Florida Supreme Court Racial and Ethnic Bias Study Commission. A University of Florida law professor with extensive subjectmatter expertise in mental illness chaired the team. A renowned circuit court judge from Seminole County who taught the Florida College of Advanced Judicial Studies course in how to handle capital cases also was involved. So, too, was an esteemed appellate lawyer in private practice in the Tampa Bay area — she later served as president of the Florida Supreme Court Historical Society.
All eight team members reached consensus notwithstanding their diversity of roles and responsibilities. Moreover, the ABA report didn’t support or oppose capital punishment; rather, it focused strictly upon issues relating to the fairness, accuracy and impartiality of the process.
These issues included Florida being the only state to allow simple majorities of penalty-phase juries to both assess whether the requisite number of aggravating factors was present in any given case to impose capital punishment under Florida law generally, and specifically to recommend a sentence of death.
The Florida Supreme Court’s 2005 State v. Steele opinion urging the Legislature to require unanimity essentially was ignored by the Legislature until U.S. and Florida Supreme Court decisions in 2016 held that Florida’s capital-case sentencing scheme didn’t pass constitutional muster. Former Justice Raoul Cantero, who was appointed by Gov. Jeb Bush, wrote that 2005 opinion.
In response, the Legislature passed two bills, one in 2016 and another this year, to correct the procedural anomaly. The most recent bill was sponsored by Criminal Justice Committee Chair Sen. Randolph Bracy, D-Ocoee, and Judiciary Committee Chair Rep. Chris Sprowls, R-Palm Harbor. It was among the first passed, which Scott quickly signed.
Many other issues identified in the 2006 ABA report are still relevant but have been largely ignored, though the Florida Supreme Court revised the state’s standard jury instructions for capital cases in 2009 based on findings of significant juror confusion.
Separate and apart from virtually any other consideration, justice would be served if state officials were to conduct a comprehensive review of Florida’s entire death penalty process by all branches of government without further delay.