|State touts early savings of privatizing death
By Jim Ash, Palm Beach Post Staff
Tuesday, January 20, 2004
TALLAHASSEE -- Florida's experiment to privatize the
legal process that ushers condemned killers from Death
Row to the execution chamber -- or freedom -- may be
showing early signs of saving taxpayers money.
Relying on private attorneys to defend some of
Florida's Death Row inmates instead of using public
defenders will save more than $2 million this year,
state officials project.
"This is what the figures are showing," said Roger
Maas, executive director of the Commission on Capital
But critics say there hasn't been enough time to
evaluate the success of what is supposed to be a
"I think part of the problem you have with that is
it's really something that is going to be hard to
project," said Neal Dupree, a capital collateral
regional attorney who faced the possible elimination of
his job one year ago, when Gov. Jeb Bush released a
bare-bones budget that proposed saving $9.3 million by
eliminating the state's three Offices of Capital
Collateral Regional Counsels.
"You haven't lived until the day you wake up and see
a big zero next to your agency's budget," Dupree
The offices, begun in 1985 to hasten the death row
appeals process, are made up of 50 full-time attorneys
paid by the state to represent death row inmates in
their post-conviction appeals.
Instead, Bush wanted to use defense lawyers from a
list of private attorneys who are willing to accept a
cap of $84,000 per case and a rate of $100 an hour.
Lawmakers, including Bush's fellow Republicans,
A compromise was reached that eliminated only the
North Florida region of the counsels and transferred its
64 cases to private attorneys.
The north region office was eliminated June 30,
wiping out its $3.2 million budget. Two of the cases
landed in the lap of another region; private attorneys
picked up the rest.
In an interim report that is based on seven months of
data and that has yet to be released, Maas predicts that
the private attorneys in the north region will file only
about $1 million in legal bills with the state. That
puts the projected savings at potentially more than $2
million this year.
But Dupree, who serves in the state's southern
capital collateral counsels region, says costs could
grow exponentially as private attorneys take on more
Plus, Dupree said, the interim report doesn't take
into account the fact that judges are allowed to
increase the amount of money the private attorneys are
paid, regardless of the state mandates, if the lawyers
can demonstrate unusual circumstances.
He also said the simple cost accounting says nothing
about the quality of the work being done on a
defendant's behalf or the speed at which the private
attorneys have been able to do their jobs.
"It's nice to say there is a projected savings, but
what has happened to these cases? If you're getting no
movement in them, where's the bang for your buck?"
The Capital Commission acknowledges it has not
compared how quickly private attorneys are doing the
work compared to their regional counsels brethren.
But some state legislators said they were encouraged
by the Capital Commission's projections.
"I'm pleasantly surprised. While I was hopeful, quite
frankly, I was skeptical," said Sen. Victor Crist,
R-Tampa, who helped negotiate the compromise.
Others remain skeptical of the privatization
It's "dumbing down the appellate process," said Rep.
Dan Gelber, D-Miami Beach, a former federal prosecutor
who supports the death penalty but is an ardent foe of
dismantling the Capital Collateral Regional Counsels
Collateral reviews of death row cases, considered the
most complex area of criminal law, begin only after a
defendant has exhausted his direct appeals.
Post-conviction petitions are usually based on the
narrow grounds of new evidence, ineffective trial
counsel, misconduct by prosecutors, faulty or recanted
eyewitness accounts or a defendant's retardation or
other mental incapacity.
Collateral reviews amount to starting the criminal
case all over again, often requiring thousands of hours
to review tens of thousands of pages of court documents
and re-interview crucial witnesses.
The state registry, which now includes 147 private
attorneys, was originally created to give judges a place
to go when a Capital Collateral Regional Counsels office
became overloaded or had to turn down a defendant
because of a potential conflict of interest.
To qualify for the state registry, attorneys need
only minimal experience, including a continuing
education course on capital cases and a record of having
tried at least five felony cases. In comparison, most
Capital Collateral Regional Counsels attorneys have been
trying these complicated cases for years.
"If they make mistakes," Gelber said of the private
attorneys, "we have to reload and start from scratch.
It's a relatively small amount of money to save when you
risk so much in the long term."
Critics of the death penalty also are not impressed
by the early returns.
"It becomes a question of what lawyers are willing to
do the work and at what cost. Some will do it because
it's close to their heart," said Abraham Bonowitz,
director of the Jupiter-based Floridians for
Alternatives to the Death Penalty. "Others will do
enough work to satisfy the bill that the state is
willing to pay."
The latter will ultimately lead to increased mistakes
in the death row appeals process and the eventual
execution of innocent defendants, Bonowitz said. Since
the death penalty was reinstated in Florida in 1979, 24
Death Row inmates have been exonerated.
Bonowitz called the privatization experiment "bogus"
when compared with a calculation made by The Palm
Beach Post in 2000 that eliminating the death
penalty altogether and substituting life in prison
without parole would save the state $51 million a
"If they really want to save money, they will
eliminate the death penalty," he said. "What they are
doing is putting innocent lives at risk and they are
putting the reputation of the state at risk, and what
have they accomplished?"
Bush is expected to introduce his budget for 2004
today, and it remains to be seen whether he will again
push to eliminate the remaining regional counsels. A
spokesman did not respond to requests for an
But even Crist, a Bush supporter, said he would not
go along with speeding up the experiment.
"There just hasn't been enough time to decide," Crist
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