Costly trials should give Florida residents pause when it comes to seeking death penalty
Brad King, one of Florida’s hardest-charging prosecutors, warned the Legislature against requiring a unanimous jury vote to support a sentence of death. It seems he was right, and that’s a benefit for the taxpayers.
King has had only middling success at getting death verdicts so far in the cases that Gov. Rick Scott stripped from Aramis Ayala, the new state attorney for Orange and Seminole counties, after she said she would not seek the death penalty for anyone. It would be up to King, the Ocalabased chief prosecutor for five other counties, to decide how to prosecute them.
In five of those cases where it sought capital punishment so far, King’s office has persuaded only two juries to return unanimous death verdicts. A judge set one of those aside, sentencing to life a man who had killed his infant son. The judge in the other case apparently has misgivings also and has delayed imposing sentence for more than a year. And in King’s own Fifth Circuit, juries have rejected death in at least four cases where the prosecution sought it.
In three of his cases where the jury votes are available, they went for execution by 11 to 1, 10 to 2 and 8 to 4, which would have spelled death before Florida’s new law in 2017.
Statewide, there are reported to have been only 13 death sentences, including four re-sentencings, since the U.S. Supreme Court held Florida’s former process to be unconstitutional in January 2016. Another potential resentencing is pending in Broward, where a jury unanimously recommended death for Gerhard Hojan, who murdered two Waffle House employees in 2002, but the judge could yet override the recommendation. Meanwhile, 34 trials have ended in life sentences or less. That’s an annual average of barely three new death sentences a year, far below most times past. It’s consistent with what has been happening nationally: only 39 last year, down from nearly 300 in 1998.
The decline is good news for taxpayers, if not for citizens who believe retribution is essential to justice. Death sentences are much costlier than life sentences, requiring the strictest custody and many rounds of state and federal appeals. The initial trials are also far more expensive no matter the outcome. Florida requires two attorneys for each defendant on trial for his or her life, one of whom must have tried at least two cases to completion,
and that’s just the start of the tab.
A recently concluded Broward County case cost nearly $2.9 million, possibly a record, just for the defense of three men accused in the 2006 murder of Brian Tephord, a sheriff ’s deputy. Legal conflicts of interest, not uncommon, meant that the public defender could not be involved. Because the state was asking for death, each defendant was entitled to two appointed attorneys who had to be specially qualified in capital defense. The total defense bill, according to state records, included some $2 million in attorney fees plus costs for travel, documents, medical and psychological testimony, crime scene experts and “mitigation specialists” whose work paid off with sentences of life without parole instead of death. The state’s costs could easily run the total tab to more than $5 million. At least the appeals will be few and brief and far less expensive than if the defendants were on death row.
Such costly trials, at a time when death sentences are fading, should make citizens and legislators alike want to know precisely how much more it’s costing Florida to seek the extreme penalty than to accept life without parole as an equally effective way of protecting society. The Legislature has been conspicuously disinterested in the possible answers. Study proposals have gotten nowhere. But Florida cannot afford and should no longer tolerate the luxury of indifference.
Recent studies in other states say without exception that death cases are significantly more expensive. One conducted for the Oklahoma Death Penalty Review Commission found that the average
capital case cost 3.2 times as much as one in which the prosecution didn’t seek death. When that is the sentence, appeals cost five to six times as much.
To its advocates, the cost of capital punishment is irrelevant. They argue that it extols society’s respect for life, provides catharsis to the community and to the survivors of victims, and deters other murders. That last point has never been proven.
But it’s precisely society’s respect for life that makes the death penalty so expensive. We no longer send prisoners to their doom in a matter of months with scarcely a pretense of fair trials and only pro forma appeals, as Florida did well into the 1960s. As the conservative columnist George Will wrote in a recent call for abolition, “Capital punishment is withering away because the process of litigating the administration of it is so expensive, and hence disproportionate to any demonstrable enhancement of public safety, but also because of a healthy squeamishness that speaks well of us.”
That “healthy squeamishness” is why it has taken on average nearly 25 years from sentencing to Florida’s last 10 executions. And it’s why 28 other Florida death row inmates were eventually exonerated—the latest just this month. Florida leads the nation in that regard but it doesn’t necessarily mean we’re more scrupulous. Gerald Kogan, a former Florida chief justice, has said he believed three executed defendants to have been innocent, but wouldn’t say who they were.
It also explains why Florida is looking at potentially record costs in the yet to be scheduled trial of Nikolas Cruz, the 19-year
old former student who killed 14 pupils and three staff members and wounded 17 others at Broward’s Marjory Stoneman Douglas High School last Valentine’s Day. Although some of the victims’ families have expressed interest in accepting a plea bargain for life without parole, others are not and State Attorney Mike Satz is pursuing the death option.
Public Defender Howard Finkelstein says it will cost the taxpayers $10 million, “dwarf every case in Broward history,” and last for years if Satz can persuade 12 jurors to vote for Cruz’s execution.
“It’s not a whodunit,” says Finkelstein. “The only question is whether he will die.” The defense will try to show that law enforcement and the school system missed multiple signals of dangerous mental illness. “We are going to tell the story of the largest multisystem failure in the history of Broward County.”
Excess costs are not the only reason, or even the most compelling one, why Florida should re-examine and abandon the death penalty. The Washington state Supreme Court cited others last month in a unanimous decision striking down the state’s law. It found the penalty to be imposed in “an arbitrary and racially biased manner” that “fails to serve any legitimate penological goal” and depended mainly on geography and timing. Gov. Jay Inslee, a Democrat, had imposed a moratorium and praised the decision. Attorney General Bob Ferguson, also a Democrat, had supported repeal legislation, saying the death penalty has no place “in a fair, equitable and human justice system.” It made Washington the 20th state without a death penalty.
In Florida, Finkelstein argues that the death penalty benefits nothing but “the prosecutor’s political career.” He acknowledges, however, that it also helps prosecutors extract guilty pleas from defendants who prefer life without parole to risking death at the hands of a judge and jury.
“I would say,” Finkelstein adds, “that the death penalty is not supposed to be a bargaining chip. Its purpose is to kill the worst of the worst.”
But the Florida Supreme Court is required to review only those murder convictions with death sentences. It does not compare them to the far greater number of killers serving life sentences. The shortcomings of what the law calls proportionality review is another fair and timely subject for study.
Florida’s government has the resources to do a comprehensive study of the death penalty. There has never been one. The last review was in 1972, commissioned by then-Gov. Reubin Askew after a U.S. Supreme Court decision that temporarily banned the death penalty nationwide. But the state study didn’t go into the financial aspects and concluded that Florida could and should adopt a new law the court would approve. The resulting law allowed judges to condemn prisoners without a unanimous jury verdict in favor of death and it lasted 44 years, accounting for 96 executions. There are 345 people still on Death Row.
More than 100 remain there despite the 2016 U.S. Supreme Court ruling that Florida’s process was unconstitutional for not requiring the jury to unanimously find every fact favoring a death sentence. In a decision without any precedent elsewhere, the Florida Supreme Court said this would automatically mean new trials only for those whose first appeals had become final after June 24, 2002. That was the date of the U.S. Supreme Court opinion in an Arizona case that became the precedent for the 2016 ruling against Florida.
Setting that cutoff date was a “metaphysical exercise” that confounds “even some lawyers,” Michael Allen, a Stetson University law professor, told a state House of Representatives committee last year. “It finds no support anywhere in the country.”
The arbitrary date is fundamentally wrong — a disgraceful chapter in the history of the Florida Supreme Court. That, too, is a proper subject for a fair and full review of Florida’s death penalty.