South Florida Sun-Sentinel (Sunday)
A high likelihood that Florida will execute innocent people
“But what about Ted Bundy?” That’s a common response to anyone who proposes, as we do, that Florida should repeal the death penalty.
Theodore Bundy, a former law student from the State of Washington, met almost everyone’s criteria for worst of the worst.
Arguably the nation’s most notorious serial killer, he was responsible for savagely murdering at least 28 young women in Florida and in five Western states.
When he was put to death in Florida’s electric chair on January 1, 1989, few people were troubled other than those who sincerely oppose the death penalty under all circumstances.
Paradoxically, however, Bundy’s example helps to make the case for repeal: It just isn’t possible to reserve the death penalty for extreme sociopaths like him.
Virginia Gov. Ralph Northam acknowledged that Wednesday as he signed legislation making his state the 23rd — and first in the South — to repeal its death penalty.
“Ending the death penalty comes down to one fundamental question, one question: Is it fair?” he said. “For the state to apply this ultimate, final punishment, the answer needs to be yes. Fair means that it is applied equally to anyone, no matter who they are. And fair means that we get it right, that the person punished for the crime did the crime. But we all know that the death penalty cannot meet those criteria.”
As for Bundy, prosecutors were concerned about the strength of the evidence that he murdered two young women at Tallahassee and a third at Lake City. They were willing to deal: life in prison in exchange for guilty pleas, and judges were standing by.
But Bundy turned it down. So did perhaps a majority of the 99 people Florida has put to death since reinstating capital punishment in 1979. Those who bet their lives and lost included John Spenkelink, the first, and Michael Lambrix, who died in 2017 after 33 years on death row.
As we have written over the past week, the death penalty has never been shown to deter crime. A death case costs much more — from trial to execution — than one in which the maximum penalty is life in prison. It is so easy to put someone on Florida’s death row that 30 of the people who were sent there were later exonerated. The danger of executing the innocent — which almost surely has already happened — is high.
Already rejected by much of the developed world, the death penalty lingers in Florida because of its political usefulness to politicians and their fear of being targeted if they oppose it.
Robert Martinez, a Republican and former U.S. Attorney for the Southern District of Florida, ran into that resistance as a member of the 2017-18 Constitution Revision Commission. His proposal to abolish the death penalty wasn’t going anywhere, so he tried changing it to call only for an official study of the issue every five years. The politicians who jerked the commission’s chains weren’t having even that, and the modification was killed in committee by a 5-4 vote.
“There is no parole for a prisoner who has been wrongly executed, where the evidence uncovered after the execution reveals the condemned was innocent,” Martinez told the Sun Sentinel editorial board last week.
A few Supreme Court justices in Washington and Tallahassee have argued in dissents that contemporary death penalty laws are every bit as arbitrary and capricious as the ones that were declared unconstitutional in 1972. But with political appointments having made both the Florida and U.S. Supreme Courts even more conservative than before, reform will have to come from other directions.
“I no longer believe that there is a method of which the state can avail itself to impose the death penalty in a constitutional manner,” Florida Justice James E.C. Perry wrote in 2017.
Even supporters of the death penalty ought to agree that it should to be carried out with fairness, accuracy and impartiality. But it isn’t.
That was the premise of an assessment conducted in Florida by the American Bar Association, completed in 2006. The eight team members, divided on the propriety of the death penalty, included a trial judge, a Supreme Court justice, a state attorney, and a veteran death row defender.
Of their major findings and recommendations, most remain unaddressed. Prompted by the courts, Florida law now requires a unanimous jury recommendation to put someone to death. But the Florida Supreme Court’s new conservative majority has ruled that the safeguard doesn’t apply to many older cases that are still being appealed.
Compensation is still inadequate for private attorneys whom the state employs to handle some death row appeals.
State governors also still refuse to shed light on how they consider — or ignore — pleas for clemency from death-sentenced inmates. There hasn’t been a public hearing since Jeb Bush’s term.
And people who murder whites are more than three times more likely to receive the death penalty than those who murder Blacks. Plus, wide geographical disparities remain among the state’s 20 judicial circuits in how prosecutors charge murder cases and how juries vote on them.
The team called on Florida to create two independent commissions. One would establish the causes of wrongful convictions in capital punishment cases and propose reforms. The other would actually review claims of innocence in death row cases and refer them to panels of judges. It also called for a study on the reasons behind regional and racial disparities, and for Florida to establish “statewide protocols for determining who may be charged with a capital crime.”
And it proposed that by law or rule Florida prohibit imposing death sentences on people who were seriously mentally ill when they committed their crimes.
Fifteen years later, none of that has happened, although Sen. Jeff Brandes, R-St. Petersburg, is presently sponsoring a bill on the mental illness issue. Sen. Gary Farmer Jr. and Rep. Joe Geller, Democrats of Fort Lauderdale, have reintroduced bills to repeal the death penalty.
Sen. Randolph Bracy, D-Orlando, has a bill that would limit the death penalty to cases of premeditation, scrapping the provisions that allows it for anyone participating in a crime, such as robbery, that results in murder. Bracy also has a bill to require conviction review units in all 20 state attorney’s offices, like the ones that have already exonerated people in Broward and two other circuits. He should take that a step further and call for a statewide innocence commission like the notably successful one in North Carolina.
All of these bills are assigned to multiple committees, none of which has heard any of them. The 2021 legislative session is almost half over.
So the likelihood remains high that innocent people will be condemned in Florida. The winnowing of candidates for execution will continue to be a ghastly game of chance.
Justice Harry Blackmun once remarked that the execution of a prisoner with a strong claim to innocence would be “perilously close to simple murder.”
When that is done in our name, what does that make us?