Requiring unanimity for death penalty isn’t being soft on crime







When Florida’s death penalty process is at issue, even the most dedicated advocates for improvements in the administration of justice tend to retreat from the challenge, claiming the timing isn’t right, that they don’t want to risk being branded as soft on crime, or that they don’t want to undermine their larger agendas by association with such issues.

Moreover, the Florida Bar Foundation, which played an instrumental role in advancing death penalty process reform efforts, has been less inclined to support such projects today given its depleted discretionary funding.

The alarming backdrop is that the Death Penalty Information Center, an independent nonprofit organization based in Washington, D.C., reports that since 1973, Florida has reversed more death sentences than any other state.

Frank Lee Smith was exonerated posthumously after the actual perpetrator was identified. He died from cancer after languishing on death row for 14 years. Juan Melendez was exonerated after almost 18 years on death row when a taped confession by the real perpetrator was discovered.

Reasonable people may disagree about the merit, efficacy and morality of capital punishment, but all should agree that the process must be fair, impartial and as timely as possible.

Five years ago, the American Bar Association released a comprehensive report developed by a team of eight Florida-based experts, including a state attorney, a former public defender and a former Florida Supreme Court chief justice, that raised serious concerns about Florida’s death penalty process. The report neither supports nor opposes capital punishment.

One of the key findings notes that Florida is an outlier insofar as allowing capital-case juries to find aggravating circumstances and recommend a death sentence by a simple majority — say, 7-5. All 33 other death penalty states require some form of unanimity.

Some counter that if unanimity had been required, convicted serial killers such as Ted Bundy and Aileen Wuornos wouldn’t have received death sentences because both penalty-phase jury deliberations resulted in 10-2 votes.

But that is not necessarily accurate. Had those juries been instructed that unanimity was required, the nature of the deliberations would have changed, including conceivably the vote, and while the judge is expected to place great weight on a jury’s recommendation, it is the judge who imposes death sentences in Florida.

We may have reached a tipping point.

Sen. Thad Altman, R-Melbourne, filed a bill in anticipation of the 2012 regular legislative session that would require unanimity in future penalty phase jury deliberations for both advisory recommendations of death and findings regarding the presence of aggravators, the basis for any death sentence.

He expanded the scope of a unanimous jury bill that he previously filed to address issues raised in a recent case out of the Southern District in which U.S. District Judge Jose Martinez declared related aspects of Florida’s capital case sentencing scheme unconstitutional. The state has appealed.

Before that case, the Florida Supreme Court, in a 2005 opinion known as State v. Steele, had called upon the Legislature to revisit Florida’s death penalty statute to require unanimity for jury recommendations of death. Then-Gov. Jeb Bush observed that the issue was “definitely worth consideration” and cautioned legislators not to ignore the court.

The Legislature ignored the court.

Simply put, Altman’s bill would help ensure that the  death penalty is reserved for the most heinous crimes. It has received favorable responses from certain prosecutors. But the Legislature has virtually ignored Altman’s bill during the session thus far.

Legislative leadership seems to be falling prey to the notion that any change in Florida’s death penalty statute might result in unintended consequences and should be resisted, essentially gambling that the ruling by Judge Martinez will be reversed upon appeal.

If the state’s appeal is denied, the consequences of failing to act would not be speculative.

Regardless of the outcome of the state’s appeal and apart from one’s views on capital punishment, maintaining the status quo and thereby Florida’s outlier status in this country does not serve the cause of justice. States such as Texas and Georgia, known for their pro-death penalty stance, require unanimous juries. So should we.

Raoul Cantero is a former justice of the Florida Supreme Court appointed by Gov. Jeb Bush. Mark Schlakman was a member of the ABA Florida Death Penalty Assessment Team.


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