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.
The Public Defender Cases
Meanwhile, on May 23rd, as the debate over the Timely Justice Act intensified, the Supreme Court of Florida issued two related rulings that remind us how much Florida officials have tried over the years to deprive indigent defendants of their right to "effective assistance" of counsel. The joint opinion in Public Defender v. State of Florida is a must-read. The key question was whether the public defender's office in Miami-Dade County could withdraw from representing clients in non-capital felony cases because of routinely "excessive caseloads." On a subject with which the Court is quite familiar, the justices answered with a qualified "yes."
Over and over again, the Florida Supreme Court has stymied attempts by lawmakers and lower court judges to undermine the right to counsel most famously expressed 50 years ago by the United States Supreme Court in a Florida case styled Gideon v. Wainwright. In Public Defender, the majority (the vote was 5-2) devoted page after page in its ruling to a litany of its past rulings in which it cited the Court's "inherent judicial power" to countermand legislative attempts to restrict the state's indigent defense system. Despite their best efforts, the justices have been only marginally successful. How bad is it? From Page 23 of the ruling:
While we cannot succinctly recount the lengthy records in these two cases, we are struck by the breadth and depth of the evidence of how the excessive caseload has impacted the Public Defender's representation of indigent defendants. For example, the number of criminal cases assigned to the Public Defender has increased by 29% since 2004, while his trial budget was reduced by 12.6% through budget cuts and holdbacks over the fiscal years 2007-2008 and 2008-2009. After the implementation of Article V revisions in July 2004, the Legislature only funded 32 of the 82 overload attorneys that Miami Dade County had been funding.
The noncapital felony caseload has been in the range of 400 cases per attorney for a number of years. Yet, even the highest caseload standard recommended by professional legal organizations is 200 to 300 less. The combined record in these two cases comprises twenty six volumes. The evidence in each case includes testimony, documents, statistics, and expert opinion. At the time the motions were filed in these cases, there were 105 attorneys to represent clients in 45,055 new and reopened cases.
While the Public Defender has utilized a number of procedures to reduce the excessive caseloads (such as applying for grants in order to hire more attorneys; creating special units to handle bond hearings and early representation; and assigning third-degree felony caseloads to supervising attorneys, capital case attorneys, and first and second-degree felony attorneys), it has not alleviated the overall problem. Third-degree felony attorneys often have as many as fifty cases set for trial in one week because of the excessive caseload.
Clients who are not in custody are essentially unrepresented for long periods between arraignment and trial. Attorneys are routinely unable to interview clients, conduct investigations, take depositions, prepare mitigation, or counsel clients about pleas offered at arraignment. Instead, the office engages in "triage" with the clients who are in custody or who face the most serious charges getting priority to the detriment of the other clients.
Faced with these facts when the lawsuit was filed a few years ago, Florida officials didn't rush to the aid its innocent-until-proven-guilty citizens. Instead, state attorneys argued that Miami-Dade couldn't withdraw from its cases generally but had to establish a legal justification for doing so in each case. Moreover, state officials argued, the "excessive caseload" at the public defenders' office was not a statutorily justified reason not to withdraw from a case. "[I]n no case shall the court approve a withdrawal by the public defender based solely upon the inadequacy of funding or excessive workload of the public defender," reads a Florida statute.
Ponder that for a second. The state legislature fails or refuses to adequately fund public defenders' offices. The result is catastrophic for thousands of Florida citizens who are too poor to afford their own attorneys. And then the lawmakers turn around and seek to preclude those lawyers from refusing to handle cases they know they cannot possibly handle competently because of the hundreds of other cases they have at the time.* These are, not incidentally, many of the same lawmakers who just passed the Timely Justice Act, which is just another symptom of the same disease. The solution to injustice can never be more injustice.
Florida's high court rejected the state's arguments. "In extreme circumstances where a problem is system wide," wrote Justice Peggy Quinn, "the courts should not address the problem on a piecemeal case-by-case basis ... This is tantamount to applying a band aid to an open wound." The Court ordered the trial court to evaluate the situation anew to see if things are still as bad in Miami-Dade as they were when the lawsuit was filed. They are. This is how Florida works in bringing the Constitution home to its people -- endless litigation that dabbles on the edges of a massive problem while thousands of people are denied basic fair trial rights.
* No one is going to go free even if the public defenders' are able to withdraw from these cases. The files would go to "conflict attorneys" or to private attorneys, in some cases at even greater expense to Florida taxpayers. That's one of the reasons why Florida officials fight so hard to keep overworked, underfunded public defenders on these indigent cases. It's not about justice or fairness or the accuracy of the process. It's about trying to doing it as cheaply as possible up front -- without regard to the costs of wrongful convictions or ineffective assistance of counsel.
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