cases at its peril
Challenging the status quo to promote fairness and impartiality in our justice
system can be both a virtue and an exercise in frustration.
When Florida’s death penalty process is at issue, even the most stalwart
advocates for improvements in the administration of justice tend to shy away
from the challenge, claiming that the timing isn’t right, that they don’t want
to risk being branded as soft on crime or insensitive to victims’ issues, or
that they don’t want to undermine their larger agendas by association.
Moreover, the Florida Bar Foundation, which had played an instrumental role in
advancing death penalty process reform efforts, is less inclined to support
such projects today given its depleted discretionary funding.
The alarming backdrop is that the Death Penalty Information Center, an
independent Washington, D.C.-based nonprofit organization, reports that since
1973, Florida has reversed more death sentences than any other state.
Frank Lee Smith was exonerated posthumously after the actual perpetrator was
identified. He died from cancer after languishing on death row for 14 years.
Juan Melendez was exonerated after almost 18 years on death row when a taped
confession by the real perpetrator was discovered. Reasonable people may
disagree about the merit, efficacy and morality of capital punishment, but all
should agree that the process must be fair, impartial and as timely as
5 years ago, the American Bar Association released a comprehensive report
developed by a team of 8 Florida-based experts which included an elected state
attorney, a former public defender and a former Florida Supreme Court chief
justice that raised serious concerns about Florida’s death penalty process.
One of the key findings notes that Florida is an outlier insofar as allowing
capital-case juries to find aggravating circumstances and recommend a death
sentence by a simple majority, e.g., 7-5. All 33 other death penalty states
require some form of unanimity.
Some counter that if unanimity had been required, convicted serial killers such
as Ted Bundy and Aileen Wuornos wouldn’t have received death sentences because
both penalty-phase jury deliberations resulted in 10-2 votes.
But that is not necessarily so. Had those juries been instructed that unanimity
was required, the nature of the deliberations would have changed, including
conceivably the vote, and while the judge is expected to place great weight on
a jury’s recommendation, it is the judge who imposes death sentences in
We may have reached a tipping point.
Sen. Thad Altman, R-Melbourne, filed a bill in anticipation of the 2012 regular
session that would require unanimity in future penalty phase jury deliberations
for both advisory recommendations of death and findings regarding the presence
of aggravators, the basis for any death sentence. He expanded the scope of a
unanimous jury bill that he previously filed to address issues raised in Evans,
a recent case out of the Southern District in which U.S. District Judge Jose
Martinez declared related aspects of Florida’s capital case sentencing scheme
unconstitutional. The state has appealed.
Before Evans, the Florida Supreme Court in a 2005 opinion known as State v.
Steele, had called upon the Legislature to revisit Florida’s death penalty
statute to require unanimity for jury recommendations of death. Then-Gov. Jeb
Bush observed that the issue was “definitely worth consideration” and cautioned
legislators not to ignore the court.
The Legislature ignored the court.
Simply put, Altman’s bill would help to ensure that the death penalty is
reserved for the most heinous crimes. It received strong editorial support from
The Miami Herald and other major Florida newspapers as well as favorable
responses from certain prosecutors.
But the Legislature has virtually ignored Altman’s bill as well.
A similar but more narrowly tailored unanimous jury bill filed by Rep. John
Patrick Julien, D-North Miami Beach, is a potential House companion, and Sen.
Oscar Braynon, D-Miami Gardens, who filed the Senate companion to Julien’s bill
is a potential co-sponsor.
Legislative leadership seems to be falling prey to the notion that any change
in Florida’s death penalty statute might result in unintended consequences and
therefore should be resisted, essentially gambling that Evans will be reversed
If the state’s appeal is denied the consequences of failing to act would not be
Regardless of the outcome of the state’s appeal or one’s views on capital
punishment, maintaining the status quo and thereby Florida’s outlier status in
this country does not serve the cause of justice. States like Texas and
Georgia, known for their pro-death penalty stance, require unanimous juries. So
(source: Miami Herald; Raoul Cantero is a former justice of the Florida Supreme
Court appointed by Gov. Jeb Bush. Mark R. Schlakman, senior program director
for the Center for the Advancement of Human Rights at Florida State University,
was a member of the ABA Florida Death Penalty Assessment. )