Why has it been so easy to send innocent people to Florida’s death row?

There were 97 people on Florida’s death row in June 1972, the most in any state, when the U.S. Supreme Court temporarily banned executions nationwide. The one-paragraph 5-4 decision in Furman v. Georgia, accompanied by five elaborate concurring opinions and four dissents, seemed to suggest that states could restore capital punishment if they could make death sentences less random and capricious.

The long-anticipated decision came during an election campaign, the worst possible time for sober reflection on such an issue. Declining to call an immediate special session, Gov. Reubin Askew promised one after the election. Meanwhile, he would impanel a blue-ribbon commission to recommend what the Florida Legislature should do.

The result, in early December, made Florida the first state to re-enact a death sentencing law that a conference committee had invented overnight. Only three of the 160 legislators had the courage to vote against it. Fortyfour years later, its key element, allowing judges to impose death without a unanimous recommendation from juries, would finally be held unconstitutional.

Public sentiment has changed. Use of the death penalty is dwindling. But so long as prosecutors have the option to seek it, millions of dollars will be wasted and the potential for executing innocent people will persist.

The Florida Legislature should repeal it. Now.

Among those in Florida spared by the Furman decision and resentenced to life were four Black men who were later found to be innocent and freed from prison.

There are now 76 former Florida prisoners on the National Register of Exonerations. Thirty were or had been on death row before they were freed. That’s the most of any state.

Despite the safeguards legislators thought they had written into the 1972 law, it was and remains too easy to put innocent people on death row.

The only way to prevent the ultimate miscarriage of justice — the execution of an innocent person — is to repeal the death penalty. Life in prison without parole, already the fate of most Florida murderers, protects society just as well at far less cost.

At present, bills to repeal it can’t even get a committee hearing in Tallahassee. Broward Democrats Gary Farmer, who is the Democratic leader in the Senate, and Joe Geller in the House, have been trying.

Gov. LeRoy Collins asked the 1959 Legislature to abolish capital punishment. His bill died in a House committee despite the Speaker’s sponsorship. A staff report warned that without a death penalty, “the recurrence of lynching in certain areas of Florida can certainly be anticipated.”

That was a rare acknowledgment of the racism reflected on Florida’s death row. Of the 97 inmates in 1972, 65 were black; 26 had been condemned for rape, which is no longer a death penalty offense. Many Blacks already had died for rape, including several 16-year-olds.

Collins had held up nine death warrants in hope of repeal. After the bill failed, he signed them.

Today’s Legislature should want to know why so much has been going wrong since 1972. There are hard moral and practical questions that professional research can answer.

Such as, how many millions of dollars are wasted in the pursuit of death sentences that juries are no longer in a mood to approve?

And, why has it been so easy to send innocent people to Florida’s death row?

Most murders don’t lead to a death sentence, but so long as the prosecution keeps that option on the table, the defense is entitled to at least two experienced lawyers, usually at public expense, along with extra resources for jury selection and the penalty phase of a first-degree murder trial. Then there are years of appeals.

Factors vary among states, but it’s generally assumed that a death sentence costs at least three times as much as life without parole. In 2000, the Palm Beach Post estimated that Florida’s then-44 executions had cost $51 million a year more than life without parole. Former Attorney General Bob Butterworth once put the cost from trial to execution at $3.2 million per execution, compared to $600,000 for a life sentence. In 2017, an official cost estimate for the Oklahoma Death Penalty Review Commission put the ratio at 3.2 to 1. In North Carolina, a Duke University study in 1993 calculated that each execution cost the state $2.16 million more than a life sentence.

By a very rough estimate, based on Butterworth’s calculation, it has cost Florida an extra $223 million since 1972 to execute 99 people who could be serving life without parole instead, and is costing some $800 million more for the 333 people still on death row.

The Legislature has an investigative, auditing and research arm known as OPPAGA — Office of Program Policy Analysis and Government Accountability — that could calculate the costs with reasonable precision. The taxpayers are entitled to know.

Curiously, the Legislature has never asked OPPAGA for any insights into the death penalty. It seems to not want to know.

The review should also investigate other issues that go to the moral hazards of the issue:

— Disparities in treatment of similar defendants, especially accomplices. How many actual killers have escaped the extreme penalty while others involved in the crime went to death row?

— How prosecutors use their discretion in deciding whom to charge with what degree of homicide.

— The reliance on jailhouse informants who claim, sometimes falsely, that defendants confessed to them.

— The extent to which prosecutors rely on the possibility of a death penalty to obtain guilty pleas and turn perpetrators into state witnesses.

— Florida does not require premeditation as grounds for a first-degree murder conviction and death sentence. Under the “felony murder” theory, an unplanned killing during the course of another crime constitutes first-degree. How many death sentences owe to that?

— How many death cases reflect incompetence or misconduct on the part of prosecutors and/or defense attorneys? How many defense attorneys have been disbarred?

— Why are there dramatic differences among Florida’s 20 judicial circuits in the ratio of cases charged as capital to non-capital murder?

We will be elaborating on these questions in subsequent editorials and will keep asking them until the Legislature emerges from its shell of immoral indifference.