IS FLORIDA’S DEATH PENALTY UNCONSTITUTIONAL?
The following are links to editorials from Florida’s newspapers.
Palm Beach Post: 02/08/02: Use delay in executions to change state’s rules
St. Petersburg Times: 02/07/02: Jury as decisionmaker
Jay Weaver, in the Miami Herald: 02/08/02: Appeal imperils Florida death penalty
Miami Herald: 02/08/02: Supreme Court Intervenes in Death Penalty Cases
Palm Beach Post: 02/08/02: Use delay in executions to change state’s rules
Orlando Sentinel: 02/10/02: The suspension of the death penalty gives Florida a chance to regroup.
A Times Editorial
Jury as decisionmaker
Florida legislators should change the jury’s role from adviser to decisionmaker in sentencing a defendant to death, which would help to relieve the appellate system.
© St. Petersburg Times, published February 7, 2002
Florida legislators should change the jury’s role from adviser to decisionmaker in sentencing a defendant to death, which would help to relieve the appellate system.
Thanks to Gov. Jeb Bush, state executions are on hold for now awaiting a decision by the U.S. Supreme Court that will determine whether Florida’s system for imposing death sentences is constitutionally valid.
Bush’s move was responsible and necessary in light of the questions raised about the continued legitimacy of our death penalty procedures. This term the Supreme Court has agreed to review the case of Ring vs. Arizona that asks whether a defendant’s Sixth Amendment right to trial by a jury is violated if a judge makes findings of aggravating factors and imposes a death sentence rather than leaving those judgments to a jury. The court’s decision may have a direct impact on Florida since, in our system, the jury plays only an advisory role in the sentencing phase of death cases and judges make the final determination by balancing aggravating and mitigating factors.
Bush’s moratorium on executions came as a result of the Supreme Court acting to delay the scheduled execution of Linroy Bottoson, after putting on hold the execution of Amos King in January. Because it appeared the court would not allow Florida’s judge-rendered executions to go forward until the Ring case was decided, Bush granted a temporary reprieve to Robert Trease who had been scheduled to die today. None of the additional 370 prisoners on Florida’s death row has a current execution date.
All this makes sense. What doesn’t make sense is the attitude of the Legislature and state prosecutors that it’s business as usual until the court rules. Continuing to use a statutory scheme after Florida has been put on notice that something may be constitutionally wrong with the way we impose death sentences is an absurd waste of state resources.
Yet the fix would be so easy and sensible. The Legislature is in session now; all it would have to do is alter the jury’s role from adviser to decisionmaker. With lightning speed the Legislature moved to fix the state’s three-strikes law once a court set it aside, lawmakers could just as easily address this situation.
For those worried that juries wouldn’t be as willing as elected judges to condemn defendants, in fact, the change would have very little impact on the number of death sentences handed down. In the last six years there have been only six cases where a judge has overridden a jury’s recommendation of life in prison. A change in the law would also help relieve the congestion in our appellate courts. Former Florida Supreme Court Justice Gerald Kogan warned about judicial gridlock caused by the disproportionate amount of time the high court spent adjudicating death cases. Cases of jury override are among the worst offenders. They can clog up the courts for years and upward of 80 percent are overturned anyway.
Juries are perfectly capable of determining whether a murder was particularly cruel and therefore worthy of a death sentence. They have proved as much hundreds of times in this state alone. Getting rid of the jury override would make the system more fair in addition to reducing the number of death sentences appellate courts ultimately set aside. Florida’s criminal justice system would only benefit if the law were changed.
Appeal imperils Florida death penalty
By Jay Weaver
The Miami Herald
Friday, February 8, 2002
An Arizona death penalty case could have profound ramifications for nine states — including Florida, with its 372 Death Row inmates — and might lead to major changes in how sentences in first-degree murder trials are meted out. Already within the last two weeks, the U.S. Supreme Court has postponed two Florida executions, the latest one Tuesday.
At the root of the issue: Ring v. Arizona, a 1994 trial of an armored van robber who was convicted of murder by a jury and sentenced to die by a judge. If the high court rules in favor of the convicted Phoenix murderer, Timothy Ring, then all 795 Death Row inmates in those nine states could have their sentences commuted to life or they might get new sentencing hearings. State legislators might also have to change their death sentencing laws.
In the simplest terms, the Supreme Court must decide whether a state jury or judge should decide if defendants found guilty of first-degree murder should face a life sentence or the death penalty.
In Arizona, the trial judge makes that call while considering mitigating and aggravating circumstances, without input from a jury. In Florida, the judge also has final say, but the jury beforehand makes a recommendation. ”I think they will want to hit this one head on,” said Miami lawyer Gerald Kogan, a former Florida Supreme Court justice who has openly questioned the effectiveness of the death penalty in Florida. “They have taken this case to make a definite statement — should that authority lie with the jury, or should it lie with the trial judge?”
Attorneys representing Death Row inmates are watching the case anxiously. ”If Ring loses, we’re in the status quo,” said Todd Scher, a Fort Lauderdale lawyer with the Capital Collateral
Regional Council, a state agency that handles death sentence appeals. “If Ring prevails, there is the possibility of flat-out commutations to life because the statute is unconstitutional.”PROCESS QUESTIONED
The Supreme Court has accepted the Ring v. Arizona case for oral arguments in April because it raises constitutional questions about the process of imposing the death penalty in that state. The constitutionality of the death penalty, which exists in 38 states, is not at stake, said Phoenix attorney John Stookey, who filed the Ring petition with the Supreme Court.
In addition to Arizona and Florida, the other states affected by the high court case are Idaho, Montana, Alabama, Indiana, Delaware, Colorado and Nebraska.
THREE WERE CHARGED
Ring was charged with participating along with two others in the robbery of an armored van in Phoenix. A jury found him guilty of first-degree murder because the van driver was shot and killed during the robbery. Ring’s maximum statutory penalty, based on the jury’s verdict, was life imprisonment.
But the presiding judge conducted a separate sentencing hearing to determine whether certain facts justified imposing the death penalty. At that hearing, an accomplice with a plea bargain testified that Ring led the planning of the robbery, shot the van’s driver and later asked to be ”congratulated” on his shot. The accomplice had not testified at Ring’s trial, however.
After the sentencing hearing, the judge imposed the death penalty, saying Ring masterminded the robbery and killed the driver for the money in the van. The judge also concluded that Ring acted in a ”heinous” and ”depraved” manner when he allegedly asked to be congratulated on his shot.
In papers filed with the Supreme Court, the Ring case spotlights two earlier high court decisions that are potentially in conflict.
In Walton v. Arizona, a split Supreme Court found in 1990 that a trial judge’s sole responsibility to determine a convicted murderer’s death sentence does not violate the defendant’s due process right to a trial.
OTHER CONCLUSION
A decade later, the 5-4 high court reached a different conclusion in a nondeath-penalty shooting case, Apprendi v. New Jersey. The majority ruled that the facts used to increase the defendant’s sentence by a judge should have been presented to a jury at trial — and proved beyond a reasonable doubt.
While the defendant was subject to a 10-year sentence in the racially tainted shooting, the judge made it 12 years in the sentencing hearing after finding that it was a hate crime — a factor never considered by jurors.
In 2000, Justices John Paul Stevens and concurring Justice Clarence Thomas distinguished Apprendi from the earlier Walton case by saying trial judges can make factual determinations that result in the death penalty.
But Justice Sandra Day O’Connor, who dissented in Apprendi, said the distinction was ”baffling.” She wrote: ”If the court does not intend to overrule Walton, one would be hard-pressed to tell from the opinion it issues” in Apprendi.
CHANCE TO CLARIFY
That apparent confusion over those two earlier rulings could persuade the Supreme Court to clarify its stand with the Ring v. Arizona case.
”There’s a conflict,” said Raag Singhal, a Fort Lauderdale attorney who handles Death Row cases. Singhal, like others interviewed for this story, said the vote will probably be close.
Singhal said the Ring case could turn out to be like the Supreme Court’s 1972 landmark decision in Furman v. Georgia, which found that capital punishment was unconstitutional because of the disparity in how it was meted out based on race and other factors. That ruling led to the commutation of all Death Row prisoners.
”Their decision [in Ring] would have a tremendous impact in Florida,” he said. “If the sentencing scheme is unconstitutional, then everyone on Death Row has been placed there because of an unconstitutional statute.”
Because of the Ring case, Gov. Jeb Bush, an advocate of the death penalty, signed an order Wednesday delaying today’s planned execution of Robert Trease.
The justices granted a reprieve Tuesday to Florida Death Row inmate Linroy Bottoson just three hours before he was scheduled to die.
Supreme Court Intervenes in Death Penalty Cases
Miami Herald editorial
Friday, February 8, 2002
On the weighty question of whether an execution passes constitutional muster, both advocates and foes of the death penalty are in rare agreement: Let the courts decide.
Thus Gov. Jeb Bush halted today’s scheduled execution of Robert Trease shortly after the U.S. Supreme Court stopped the execution of another Florida inmate, Linroy Bottoson.
Both the Supreme Court and the governor made the right call. Gov. Bush, a strong supporter of capital punishment, said he made his decision because Trease isn’t represented by a lawyer and because a Supreme Court ruling on the issue could affect other Florida Death Row inmates.
Some may be tempted to read into the governor’s action more than was intended. But his decision simply shows good judgment in the face of two Supreme Court suspensions of Florida executions. Last month, the Court delayed the execution of Amos Lee King while it considers a constitutional challenge to the power of a judge, rather than a jury, to impose the death penalty.
Gov. Bush hasn’t changed his position on capital punishment, nor is he likely to. If, however, the Supreme Court decides that Florida’s death-penalty law is out of sync with the Constitution, then the governor and Legislature would be obligated to review the law and bring it into compliance — as they have pledged to do.
The Supreme Court has agreed to hear the case of an Arizona man who challenges the death penalty as unconstitutional when imposed by a judge and not a jury. Also indicative of the Supreme Court’s interest in the death penalty was a speech last summer in which Justice Sandra Day O’Connor, who has supported capital punishment, questioned if the U.S. justice system had allowed “some innocent defendants to be executed.”
Justice O’Connor’s concerns are well-founded. According to the Death Penalty Information Center, 99 people have been released or exonerated from death sentences nationwide since capital punishment was reinstated in 1973.
The Supreme Court’s intervention can only ensure a fairer system.
http://www.miami.com/mld/miamiherald/news/editorial/2619026.htm
Use delay in executions to change state’s rules
Palm Beach Post editorial
Friday, February 8, 2002
No one in the Governor’s Mansion, the Legislature or the attorney general’s office wants to acknowledge it, but a death-penalty moratorium exits in Florida — and it’s about time.
Late Tuesday afternoon, the U.S. Supreme Court stayed the execution of Linroy Bottoson just hours before he was to die. Last month, the high court stayed the execution of Amos King. Both actions arose from the court’s decision to review death-penalty rules in nine states, including Florida, that give judges, not juries, the final decision on capital punishment. Gov. Bush then delayed the execution of Robert Trease, which had been scheduled for Thursday.
Ideally, the governor would have declared a moratorium to review all Death Row cases. Last month, Juan Melendez became the 22nd person to be cleared and released from Death Row. No state has freed so many condemned murderers whom courts later found to be innocent. Still, the governor’s action gives him and the Legislature a chance to make responsible changes to Florida’s death-penalty rules without having to wait for the high court’s decision.
In Ring vs. Arizona, the case before the justices, the issue is whether the judge alone should be able to impose a death sentence. Florida law makes the jury advisory; the judge can override either a recommendation of a life term or death. Further, while the jury must vote 12-0 to convict, a recommendation of death requires just a simple majority. Until 1972, when the Supreme Court declared the death penalty unconstitutional, jury recommendations had to be unanimous. By 1976, when the high court reinstated capital punishment, the Legislature had changed the standard.
If the governor and the Legislature insist on retaining the death penalty, they should give the power of sentencing to the jury and require that the vote be unanimous. Gov. Bush said last month in the State of the State address that “our people . . . determine whether we rise or fall as a state.” Presumably, the governor then would trust jurors to decide whether the community believes the state should apply the ultimate punishment.
Assistant Deputy Attorney General Carolyn Snurkowski, who is in charge of criminal appeals, said the state would continue litigating Death Row cases. Given the governor’s action, that would be a waste of time. Instead, Ms. Snurkowski and her boss, Bob Butterworth, should persuade the Legislature that changing the rules makes sense, especially since most decisions to override a recommendation of life in prison are overturned on appeal. For once, the state could look halfway sensible on capital punishment.
Orlando Sentinel: 02/10/02: The suspension of the death penalty gives Florida a chance to regroup.
The death penalty—-Our position: The suspension of the death penalty gives Florida a chance to regroup.
The U.S. Supreme Court action that forced Florida to suspend executions presents an excellent opportunity for the state to take a critical look at capital punishment.
Unless the system for condemning and executing convicts is fair and constitutional, it will continue to risk being overturned by the Supreme Court. Certainly Gov. Jeb Bush acted appropriately when he put executions on hold while awaiting a decision by the Supreme Court that will decide if Florida’s method for imposing the death sentence is constitutionally sound.
Yet Mr. Bush could do more than sit and wait. He has an obligation to look ahead and identify faults in the state’s death-penalty system that would likely cause problems in the future. This can be accomplished by establishing a bipartisan capital-punishment commission to study the death penalty. The question is whether it is fair and effective.
When this newspaper — which has supported the death penalty for many years — suggested such a commission last year, Mr. Bush shrugged off that notion. Now he has another chance to do the right thing.
Closely examining capital punishment does not necessarily mean that the death penalty would be — or should be — abolished. If the system is fair, then death-penalty supporters shouldn’t worry. If there are problems, doesn’t it make more sense to fix them now than to endure another frustrating 11th-hour stay of execution?
Impaneling a death-penalty commission is not a radical idea. That’s the route chosen by Illinois Gov. George Ryan, a Republican death-penalty supporter, who became alarmed when 13 people on his state’s death row were exonerated. That 2-year study conducted by that commission is drawing to an end and will include numerous reform ideas.
Florida’s system of capital punishment clearly has problems. Florida leads the nation in the number of people — 22 — whose death sentences were vacated because the defendants later were exonerated, or because of serious flaws in the way cases were handled. Those flaws included misconduct by police and prosecutors and by inept defense lawyers. During that same period, the state executed 51. The possibility of executing an innocent person should alarm any fair-minded person.
The immediate fate of capital punishment in Florida rests in the hands of the Supreme Court, which wants to decide if it’s appropriate to have judges, rather than juries, make the final decision on the death penalty. If the justices decide that Florida is wrong, all 372 people on death row would have to be resentenced. That would throw the state’s court system into chaos. Despite that concern, it would be inappropriate for state lawmakers to meddle in this until the justices have finished their work.
Future confusion can be prevented if Mr. Bush launches a commission to do a top-to-bottom review of Florida’s death penalty.
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Floridians for Alternatives to the Death Penalty
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