‘If you say that no innocent person has been executed, you’re burying your head in the sand’

On six occasions, Gerald Kogan’s duties as Florida’s chief justice required him to be on an open phone line to the governor’s office as the state was putting someone to death, in case there were last-minute stays.

There were none.

“It’s an awful responsibility,” he recalled. “And you say to yourself, ‘God help us all if we have made a mistake.’ ”

Kogan became convinced that Florida had executed innocent people.

He had seen the issue from more perspectives than anyone else: as a state prosecutor, a defense attorney, a trial judge and a Supreme Court justice for 11 years; some 1,400 cases, by his count, spanning 40 years.

“There is no question in my mind,” he said after retiring from the court, “that we certainly have in the past executed those people who either didn’t fit the criteria for execution in the State of Florida or who, in fact, were … not guilty of the crime.”

He pointed to the rising number of death row prisoners who had been exonerated by DNA evidence as a warning that other innocents had been and would be executed.

“If you say that no innocent person has been executed, you are just burying your head in the sand,” he said.

He often said he believed Florida had executed three innocent people, but he took their names to his grave, perhaps to avoid embarrassing colleagues who had voted to uphold their convictions. He didn’t blame them for a grossly flawed system.

He came to see that the system is a remorseless welter of rules, deadlines and precedents that exalt “finality” over fairness. He saw it as beyond repair, something that must be abolished.

Kogan, 87, died in Miami on March 4, and was eulogized as having been a transformative chief justice from 1986 to 1988. He persuaded Florida’s courts to post many of their documents on the internet and led the Supreme Court to livestream its oral arguments, which were already being videotaped and archived.

“These are practices now standard around the nation but novel when he pioneered them,” wrote Craig Waters, the court’s public information officer. He noted also that Kogan initiated longrange planning for the court system to keep its priorities from changing with each new chief justice.

But what Kogan might consider his greatest work began after his retirement in January 1999, remains unfinished at his death, and awaits an awakening of conscience among Florida’s people and their politicians.

As he told an Amnesty International conference in 1999, the death penalty “is archaic, is something that does not belong in a civilized society.” Indeed, it is past time to repeal it, here in Florida and nationwide. As we will elaborate in subsequent editorials, it has nothing to do with preventing crime. It cannot be applied with an even hand. There is no assurance that only the “worst of the worst” are put to death. It wastes millions of dollars compared to the cost of a life sentence without opportunity for parole.

Although Florida politicians are indifferent, capital punishment is on the wane almost everywhere else. The American people are ready.

„ When the question is put as a choice between execution and life without parole, as by the Gallup poll in 2019, 60 percent prefer the latter.

„ President Joe Biden, an astute judge of public opinion, expanded the death penalty as the Senate author of a controversial crime bill, but declared in his campaign last year that he would work to eliminate it at the federal level and encourage states to repeal it also. It did not become a campaign liability.

„ In Virginia, the state with the most executions since Colonial times, the Legislature has voted to repeal the death penalty. Gov. Ralph Northam, promising to sign the bill, said in a joint statement with sponsors that execution “is inequitable, ineffective and inhumane.” Virginia will be the 23rd state and the first in the South to have no death penalty, following New Mexico, Illinois, Connecticut and Colorado since 2009.

„ Prosecutors elsewhere are requesting fewer death sentences and juries are rendering even fewer. New death sentences have declined from 279 in 1999 to merely 18 in 2020, according to the Death Penalty Information Center. There were 17 executions last year, down from 98 in 1999, the peak year, and 13 of them were federal as the Trump administration ended a 17-year moratorium.

„ The nations that ban execution, 106, have more than doubled in 30 years. Although it remains legal in 56, half of them rarely if ever use it, and eight reserve it for exceptional cases, according to Amnesty International. It is banned throughout Europe.

But until the U.S. forsakes the death penalty, our nation will remain one of the outliers worldwide and entirely alone in the Western Hemisphere. China, Iran, Saudi Arabia, Iraq, Egypt and Pakistan were the only nations that executed more people in 2019, when 22 were put to death in the U.S.

In his Amnesty International address, Kogan pointed to the relentless “dynamics” of the criminal justice system. How it “makes deals with more culpable defendants” to secure their testimony against others who are less to blame. How it gets questionable convictions from untrustworthy jailhouse informants.

“We are human beings,” he explained, “administering an imperfect system … You don’t dig up a coffin, open up the lid and then tell the accused, ‘Oops, sorry. We made a mistake.”

The death penalty accomplishes no valid purpose that can’t be fulfilled at less cost and infinitely less risk of making the worst possible mistake. No citizens and no states should want such miscarriages of justice on their collective conscience.

In subsequent editorials, we will explore how the death penalty works and why it can no longer be justified.