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Legislators Restrict Death Penalty Appeals
By Larry Helm Spalding
Legislative Staff Counsel
February 2000
The Florida Legislature convened in special session January 5-7 to enact the Death Penalty Reform Act of 2000. The final product was substantially similar to death penalty legislation which failed to gain approval in three previous regular sessions.
It is questionable whether the bill would have been enacted into law at this year's regular session which convenes in March. The legislation is critically flawed and unconstitutional. It impinges on the separation of powers by intruding on the jurisdiction of the Florida Supreme Court to manage the state courts docket and to adopt its own rules of criminal procedure.
The bill callously increases the chances that the state will execute an innocent inmate by establishing unrealistic time frames. It creates a dual track system similar to ones put into place by state legislatures in Missouri and Arkansas, but which were later abandoned as unworkable. In fact, many knowledgeable death-penalty proponents believe that this legislation will not only fail to speed up the capital appeals process, but may also bring the system to a grinding halt. Hopefully they are right.
The special session, however, demonstrated the political muscle of Governor Jeb Bush. He got exactly what he wanted: lethal injection is now an option to the electric chair (thus heading off a potential problem with the U.S. Supreme Court, which had agreed to review a constitutional challenge to the use of the electric chair in Florida), and a reform package designed to reduce the time between sentence and execution to just five years. The Governor succeeded because the majority party was disciplined -- not a single Republican opposed the bill. Moreover, the Governor was able to convince a sufficient number of Democrats to cross over to meet the required two-thirds vote on legislation dealing with court rules.
Governor Bush's plan seeks to pattern the appeals process in Florida after the one overseen by his brother, Governor George W. Bush of Texas, where more people have been executed than in any other state since the U.S. Supreme Court allowed the death penalty to resume in 1976. As governor, George W. Bush has presided over the executions of 111 men and one woman. In contrast, Florida has executed 44 inmates since 1976. Since Jeb Bush took office in January 1999, one only inmate has been executed. It was Allen Lee "Tiny" Davis' botched execution which led to the U.S. Supreme Court agreeing to review the continued use of the electric chair in Florida.
This was not democracy in action
The new statute attempts to address one of the most complicated areas in the law, involving the delicate working relationship among each of the three branches of government: executive, legislative and judicial. Yet, the Death Penalty Reform Act was not the work of a deliberative body. The three-day special session was a show for the media and the public. The bill was referred to one committee in each house for one meeting on one day. The primary witnesses were family members of murdered victims whose sad stories of horrible crimes were full of anguish, but they contributed little to a discussion of the merits of the bill.
There were a few witnesses, including some trial and appellate judges, who urged caution in reforming the appeals process, but their words fell on deaf ears. In fact, few members of the Legislature had any understanding of the complexities of the reform package. How could they? On the morning of January 5, for example, House members had not even been presented with a copy of the bill they would consider on the floor the next day. It was still a work in progress until late afternoon. It is no exaggeration to say that less than ten members in each house had a reasonable understanding of the bill.
There were some heroes
Although the Death Penalty Reform Act of 2000 has been signed into law by Gov. Jeb Bush, there were some heroes on the minority side. The Black Caucus fought hard for an amendment to safeguard against discrimination in sentencing. It failed. Black lawmakers are angry that Gov. Bush refused to consider allowing blacks sentenced to death to challenge the sentence on grounds that it was racially motivated. They cited a 1991 study showing that black defendants in Florida are more likely to receive the death penalty than white defendants, and that killers of white people were three times as likely to be executed as killers of black people.
There were other heroes. Rep. Sally Heyman, who is also a member of the Commission on Capital Cases, argued eloquently on the floor against violating the separation of powers and setting up a constitutional confrontation between the Legislature and the Florida Supreme Court.
Other members, including Rep. Les Miller, Rep. Lois Frankel and Sen. Kendrick Meek, valiantly pressed the Legislature to consider addressing critical issues at the trial court level. They reminded legislators that prosecutors are demanding and trial judges are imposing too many inappropriate death sentences. This, they said, is "expensive, costly, wasteful." Though they were too diplomatic to say it, the implication was plain: elected prosecutors and elected judges are playing politics with the death penalty, trusting the Supreme Court to correct inappropriate sentences. Ineptitude was cited as another villain. Only skilled, experienced prosecutors and defenders and only specially trained judges should try death cases - which is not often the case.
The minority members also wanted the Legislature to abandon the practice of allowing juries to recommend death by a simple majority vote. Most states, including Texas - the Legislature's model death state - require unanimous verdicts or, at least, a super-majority. The majority would have none of that.
Two other measures, prohibiting execution of juveniles and the mentally retarded, likewise failed to garner any consideration. In the end, what Jeb Bush wanted in the bill was enacted, what he opposed was not.
What was accomplished?
The Governor scored some political points. Opponents were able to demonstrate the hypocrisy of the rush to enact a measure to reduce the rights of death row inmates, while saying matters such as racial justice need to be studied further. The losers were all those who believe in an independent judiciary and equal justice before the law.
