Death Row: Big number, no meaning

exonerees

Death Row: Big number, no meaning

By Randy Schultz

Palm Beach Post Editorial Page Editor

Sunday, May 11, 2008

Florida's Death Row is a fraud.

As of last week, 385 people were under sentence of death - 237 white men, 134 black men, 13 men of other races or ethnicities and one white woman. Now that the Supreme Court has blessed the most common method of lethal injection, Florida can resume the executions that Jeb Bush halted in December 2006 because of problems with the injection of Angel Diaz.

But let's assume that Florida began killing 12 inmates a year. That's a ridiculously high guess; the state hasn't killed more than eight people in any year since 1979. Even at that rate, however, it would take a decade to kill less than one-third of those on Death Row.

This column appears now because of the high court ruling last month on lethal injection. It's been kicking around for months, though, since a call from Tom Warner, former state representative from Martin County, former state solicitor general - Florida's chief appellate lawyer — and former and current supporter of the death penalty.

As a legislator, Mr. Warner was known for bucking the far-right Republican ideology of the last decade. That's why he never became a member of the leadership. He's in private practice now, for the big firm of Carlton Fields, but he still thinks a lot about public policy. He called because of what he had seen about the death penalty as solicitor general.

'The courts won't allow it'

"I observed at the time," Mr. Warner said last week, "that there were 60 to 70 people on Death Row who wouldn't be executed, no matter what, because of issues like, say, mental capacity. They just won't. The courts won't allow it."

He's right. Some inmates are on Death Row for crimes committed more than three decades ago. The law changes, technology changes - look how many men DNA has freed from Death Row; Florida leads the nation - and so do post-conviction appeals on behalf of condemned inmates. Death Row cases make up a fraction of the Florida Supreme Court's caseload but roughly half of the court's workload.

Trial court judges decide whether someone gets the death penalty or life in prison, but juries recommend which sentence. As Mr. Warner points out, there are people on Death Row because juries voted only 7-5 or 8-4 for execution. Given recent Supreme Court rulings, that alone is enough to delay those executions. Even Palm Beach County State Attorney Barry Krischer, as strong a death penalty supporter as you'll find, believes that the vote ought to be 12-0.

"In my mind," Mr. Warner said, "the state really needs to evaluate all the Death Row cases and identify where there is a realistic and practical chance of the sentence being carried out. It's about fairness and doing it right. You want the process to be legitimate."

Ducking death penalty responsibility

Making the process "legitimate," though, carries the political risk of looking soft on the death penalty. That may explain the reaction when I tried to find out who might ask for the review Mr. Warner suggests.

I started with the Department of Corrections, which directed me to the office of Attorney General Bill McCollum, which directed me back to Corrections, and elsewhere. "The Attorney General's Office does not have the authority to commute sentences," said spokeswoman Sandi Copes. "We are responsible for defending the state through (Death Row) appeals, but cannot unilaterally direct sentences to be changed. You may wish to speak with the Governor's Office or the Office of Executive Clemency. Thanks!"

But does the attorney general have any thoughts on the matter? Does he believe that all 385 death sentences ever will be carried out? "We do not have the authority to initiate the review you have suggested. Thanks!"

Few politicians win by appearing to stand up for Death Row inmates, and Mr. McCollum sends out so many e-mails each week that you know he's ready to run for governor if Charlie Crist winds up in a McCain administration. And Mr. Warner says that responsibility does go higher. "This is a state policy question," he said, "so it would have to come from the governor." Gov. Crist signed a death warrant last year without waiting for the ruling on lethal injection.

Since Florida is set on having capital punishment, the system ought to be at least reasonably legitimate. The current system frustrates almost everyone. That won't change until someone in a position of power has the political courage to say that Death Row is a fraud.

Randy Schultz is the editor of the editorial page of The Palm Beach Post. His e-mail address is schultz@pbpost.com