Florida Accelerates Its Broken System of Criminal Justice

What are state lawmakers doing? Making the process quicker, and more unjust, than before.
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Florida Governor Rick Scott (Brendan McDermid/Reuters)

Florida has long earned its reputation for implementing one of the most patently unjust death penalty regimes in the nation. It starts before trial, when indigent capital defendants are often given overworked and underpaid lawyers, whose workloads preclude them from adequately investigating cases or defending clients. It continues at trial, where jurors may recommend a death sentence based only upon a majority vote. And it extends beyond trial, where appeals are limited and the clemency process is so secret that state officials need not explain publicly the reasons for their denials. And, of course, there are almost always denials.

Any capital system so skewed in favor of the state, any system wherein remedial procedures are so blatantly undermined, any system that allows jurors to untether themselves from unanimity in sentencing, will surely have more than its share of unjust or inaccurate results. And, indeed, with the deck stacked against capital defendants, with racial disparity evident, it surely is no surprise that Florida leads the nation in death row exonerations -- 24 since 1973. The state has executed 76 prisoners during that time, meaning that three men have been executed there for every one who was exonerated. Do you feel comfortable with that ratio?

What have state officials decided to do about all this? Are they pushing for reform? In a way, yes. They want to make a bad situation worse -- to double down on the deprivation of due process. Instead of ensuring that capital convictions are more accurate, state lawmakers have decided to speed up the pace of capital cases. And instead of ensuring that non-capital indigent defendants get better representation at trial, which would increase the accuracy of convictions and sentences, Florida is arguing that overwhelmed public defenders must still represent clients even when the lawyers claim that they cannot physically or ethically do so.

Florida officials want to achieve these worrisome tweaks to their justice system because they do not want to spend what it would take to hire enough public defenders to represent all defendants adequately all the way through the criminal justice process. They are frustrated with the continuing costs of housing over 400 death row inmates (more than any other state but California). That there is a problem is obvious. That the solution to the problem of an unfair system is to make it manifestly more unfair is somewhat less so. As Kenneth Nunn, a local law professor, told the Gainesville Sun: "It doesn't make sense to speed up a broken system."

The Timely Justice Act

The first piece of the puzzle is a pending state measure ironically titled the Timely Justice Act. Enacted weeks ago, it awaits Governor Rick Scott's signature. The bill is based upon the demonstrably faulty premise that Florida's capital punishment regime has been so accurate over the decades that only guilty men who are malingerers now are sitting on the state's death row. And it represents a chilling policy choice. In a state which has averaged more than one capital exoneration every two years since 1973, where ineffective assistance of counsel cases are rampant, Florida thinks less procedure is the answer.

The measure would require the governor to sign a convicted murderer's death warrant within 30 days after the conclusion of all appeals and would require an execution by lethal injection to take place within 180 days. It also limits the appellate options available to defense attorneys fighting on behalf of their clients and seeks to ensure -- feebly, under the circumstances -- that death row inmates are given better representation by their court-appointed counsel. If it were to become law, approximately 100 condemned men (by one count, although that figure is dispute by local lawyers) would immediately be scheduled for execution.

The question no one yet can answer is how many of those inmates have been wrongfully convicted. Florida's past history of exonerations tells us that the answer is more than "none." It typically takes years for these dubious cases to emerge, for witnesses to recant, or for evidence hidden by prosecutors to surface. And Florida has only itself to blame. Seven years ago, the American Bar Association reviewed Florida's capital procedures, found them wanting, and suggested practical improvements. None of those suggestions has been implemented. Instead, we have a bill that would "fix" the problems by more quickly executing the inmates.

This is unacceptable for many reasons. If Florida were serious about improving its capital regime, about making justice both more swift and more secure, it would start at the beginning of these cases. It would spend more money giving capital defendants lawyers who have the time to properly handle these complex cases. It would strengthen punishments for prosecutors who cheat at trial. It would instruct judges to ensure fairer voir dire for defendants of color. It would order more DNA testing for inmates who request it. And only after these reforms were implemented would it seek to limit the ability of capital inmates to linger on death row.

It is unclear whether Gov. Scott is going to sign the bill into law -- or why he hasn't already. If he does, he will voluntarily cede the governor's authority to determine the pace of executions. By signing the bill, the governor also would endorse still more legislative encroachment upon core judicial functions -- which means another likely challenge that will go to the Florida Supreme Court and take years to resolve. And he would almost certainly guarantee that some inmates who might be exonerated in the years to come would instead be put to death. For these inmates, there would be no "timely justice" at all.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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