Discussion

A.
Trends in Imposing Death Sentences

B.
Regional Disparities

C.
Life without
Parole

D.
Public Opinion

E.
Guilty Pleas and Waiver of Jury Recommendations

F.
Overrides

G.
Death Votes and Direct Appeal Decisions

H.
Race Issues

I.
Innocence

J.
The Bigger Picture

TABLES

The following is from a paper presented orally at the "Life Over Death" capital litigators training conference held by the Florida Public Defender Association in Orlando, Florida, on September 7, 2001. The data presented herein is up to date as of December 21, 2001.

Recent Developments in the Death Penalty in Florida

In the next hour I would like to give a "Status Report" on the death penalty in Florida. I will argue three major points. First, how death sentences are applied and how the death penalty is argued in Florida today is significantly different than they were six or eight years ago. Second, there are several indications that support for the death penalty has peaked, and, consequently, that we are seeing rather significant declines in the imposition of new death sentences. Third, the trends we see in Florida are consistent with trends we are seeing in many other places in the United States and elsewhere in the world. For nearly two centuries there has been a gradual worldwide decline in the use of capital punishment. Florida's love for the death penalty in the first 25 years after Furman (1972) is an aberration, and the recent changes that I will discuss are, I believe, putting us back on the track toward abolition.

A. Trends in Imposing Death Sentences

Rates of death sentencing in Florida have dropped precipitously in the past five years (see Table 1). Excluding those resentenced to death after their initial death sentences were vacated by appellate courts, there were 22 first-time death sentences handed out in 2000. This continues a downward trend that first began in 1996. In the decade between 1986 and 1995, Florida sentenced an average of 39.9 people to death each year. Between 1996 and the end of 2000, we averaged 22.4 death sentences per year. Florida's death sentencing rates are still outrageous given any contemporary standard of human rights, but these figures represent a drop of over 40 percent in rates of death sentencing in the past five years.

The downward trend continued, and even accelerated, in 2001, when only fifteen people [1] were sentenced to death. In 2001 Florida had the fewest number of death sentences in any year since 1973.

B. Regional Disparities

Of the 22 new death sentences in 2000, six came from the First Judicial Circuit, two from the Second, and one from the Third. Hence, north Florida and the panhandle accounted for 41 percent of the new death sentences in that year. In 2001, three of the fifteen death sentences came from these Circuits. [2] Obviously this figure is disproportionate both to the population and the number of murders that occur in those rural areas.

C. Life Without Parole

One reason for the decline in death sentences appears to be the availability of a sentence of Life Imprisonment Without Parole (LWOP). Those convicted of first-degree murders that occurred between December 1972 and May 25, 1994, if not sentenced to death, were eligible for parole after twenty five years in prison. For those convicted of first-degree murders that occurred after May 25, 1994, the only two possible punishments are death and LWOP.[3] To the degree that jurors are concerned that 25 years in prison is too lenient a punishment, or those who fear that murderers who are released after 25 years in prison will constitute a serious threat to the safety of our communities, the LWOP option seems to have lessened the zeal for the death penalty.[4] Public opinion polls have also shown that support for the death penalty declines markedly given the alternative of LWOP.

One lesson for defense attorneys here is to make sure that jurors know that once they have found a defendant guilty of first-degree murder, they have already made the decision that she or he will die in prison. Of course, the jurors may not really believe this, so attorneys need to think of ways to have different people remind them, in different ways, that LWOP means LWOP. They also need to be reminded that executive clemency in such cases is extremely rare. I am aware of only three people who were convicted of first-degree murder in Florida since 1972 who were released early by order of various governors and state clemency boards.

In practical terms, the shift from a 25 minimum-mandatory has had little effect on the lives of prisoners. The first group of people sentenced to life under Florida's post-Furman statute became eligible for parole in 1998, and only a couple have been released. To my knowledge, only one ex-death row inmate in Florida has been released after completing his mandatory 25 year minimum: Thomas Halliwell.[5]

D. Public Opinion

But more importantly than LWOP has been a change in public opinion. Public support for the death penalty in the United States, according to Gallup Polls, peaked in 1994 at 80 percent, and by March 2001 had fallen to 67 percent.[6] More importantly for states such as Florida and Colorado where people convicted of first degree murder are sentenced to Life Without Parole if not sentenced to death, only 54 percent of all Americans support the death penalty over LWOP. An ABC/Washington Post Poll taken in April found 63% support for the death penalty, but this falls to 46% given LWOP.[7] A survey by the Florida Lauderdale Sun-Sentinel last August found that only 45 percent of Floridians support the death penalty given LWOP. [8] In short, given that Florida has LWOP, I am happy to report that today a minority of Floridians support the death penalty under its present statutory parameters.

There is also strong support for a total moratorium on executions. A national poll taken last September, conducted by a joint group of Democratic and Republican pollsters, found that 64 percent of the respondents supported a moratorium on executions, at least until issues relating to its fairness could be resolved. A March 2001 Gallup survey on the same issue found that 53 percent supported a moratorium. And in Florida, readers of the normally-conservative Orlando Sentinel were stunned to wake up on August 19 and find an editorial calling for a moratorium on executions.

Changes in public opinion can also present some new challenges for defense attorneys in capital cases. Public Defender Lewis Buzzell reports that he recently did a capital case in Jacksonville in which 17 of the 60 potential jurors were excluded during voir dire because of opposition to the death penalty. Because the majority of those excluded were African Americans, this new trend has important racial implications.


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