Three hundred seventy-four men sit on Florida's death row.

Juries, appeals process criticized

Florida's average of two executions a year means many may never be put to death.

By CHRIS TISCH
Published March 5, 2007

The state averages about two executions per year.

At that rate, it would take 187 years to execute all of the state's condemned killers.

That means most will die from something other than the executioner, many of old age.

Figures obtained from the Florida Department of Corrections show almost as many condemned inmates have died while waiting on death row as from execution.

The DOC only could retrieve numbers back to 1993. In that time, 29 death row inmates have died while awaiting execution, most from natural causes but a few from suicide or homicide.

In that time, the state has executed 35 people. But nine of those inmates dropped their appeals and volunteered to be executed. If those people had fought their executions, death row deaths and executions probably would run neck and neck.

And the number of nonexecution deaths is likely to rise as the death row population ages.

For the past month, a special commission has studied how Florida's lethal injection procedures can be improved during an execution. The panel formed after an execution last year went awry.

The panel was restricted to study only lethal injection, not broader death penalty issues. It provided a list of recommendations to Gov. Charlie Crist on Thursday.

But several legal experts say Florida's death penalty system has far more severe flaws than a shaky lethal injection protocol. Those flaws, they say, render the state's death penalty nearly ineffective.

"A common sense guy would say this just doesn't work, and we are sure wasting a lot of money and a lot of time," said Charles Rose, a professor at the Stetson University College of Law.

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One of the problems, many experts say, is that it's too easy for Florida juries to recommend a death sentence.

Of the 38 death penalty states, only Florida doesn't require juries to unanimously agree on at least one portion of a death sentence recommendation.

In 2005, the Florida Supreme Court challenged lawmakers to consider switching to unanimous juries. An effort to launch a bill fizzled quickly.

The result is a death row that has become swollen with inmates and an appellate process that has become clogged and slow.

"If I were pro-death penalty in Florida, the best way to have more executions is to have fewer people sentenced to death," said Michael Radelet, a University of Colorado professor who is one of the leading experts on Florida's death penalty.

But experts say politicians are reluctant to suggest that out of fear they will be attacked as soft on crime.

"They'd be labeled a liberal, and that's the greatest fear, it seems, of any politician in Florida," said Bob Dillinger, the Pinellas-Pasco public defender. "It's political and emotional, not logical."

Killers sent to death row also are afforded a far greater number of appeals than those sent to prison. This includes an automatic appeal to the Florida Supreme Court, which spends nearly half of its time reviewing death penalty cases. Appeals to the federal courts can take years.

Capital defense lawyers often are blamed for using clever tricks to delay the appeals process. But Rose, the Stetson professor, said it's the job of those lawyers to take all legal steps to keep their client alive.

"They are committed to the rule of law regardless of the unpalatable nature of their client," Rose said. "They stand as the bulwark from preventing emotion from overcoming the rule of law. But they make a very compelling scapegoat."

In addition, Florida leads the nation with 22 exonerations from death row, a figure that some find to be a troubling justification for an extensive appeals process.

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All those appeals cost money. A 2000 study by the Palm Beach Post found Florida would save $51-million per year by punishing murderers with life in prison without parole instead of the death penalty. The newspaper calculated that the state's cost per execution was about $24-million.

"It's more trouble than it's worth," said Mark Elliott, director of Floridians for Alternatives to the Death Penalty. "All this over killing two usually old men every year. Couldn't we use that money and resources and time a better way?"

State Sen. Victor Crist, who served on the lethal injection commission, said conversations with victims' family members have convinced him the death penalty is a proper tool of justice - no matter the cost.

Crist said he hoped appeals could be shortened.

"If we're going to have capital punishment, it needs to be reasonably expeditious," Crist said.

Many legal experts predict that will never happen. Laws designed to shorten the process have had little effect or have been declared unconstitutional by the courts.

Those who end up suffering the most by the delays are those whom the system seems designed to serve: the victims' families and loved ones.

"I think it's cruel that they are told they will get justice for their loved one and they have to wait years and years," Elliott said. "With life without parole, justice is served immediately. They don't have to wait and can begin the healing process immediately."

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Jeff Nelson's 10-year-old sister, Elisa, was brutally murdered in Palm Harbor in 1980. Her killer, Larry Mann, has been on death row for 26 years. Nelson said he supports the death penalty because he thinks it is a deterrent.

He wishes Mann would have been executed years ago. He said many of Mann's appeals have been "arguments over the T's and the I's and not over guilt and innocence."

As far as how to fix it, Nelson says he doesn't know. He doesn't necessarily blame the defense lawyers. He knows they have a job to do.

"What are you going to fix? You've got to give everybody their due process," he said.

"You're never going to move on," Nelson added. "For the rest of my life I'm going to be faced with birthdays and anniversaries and family reunions and all kinds of stuff. It's never gone."

Chris Tisch can be reached at tisch@sptimes.com or 727 892-2359.

[Last modified March 5, 2007, 01:35:08]