by Dr. Christina Johns
At a time when Illinois has declared a moratorium on executions, other
states and the federal government are considering moratoriums, and more
and more groups and organizations are recommending it, the Florida
legislature passed the Death Penalty Reform Act, designed to speed up
the pace of executions in Florida.
I recently asked Larry Spalding, of the American Civil Liberties Union in Florida, how the Florida legislature could justify seeking to speed up executions at a time when the state of Illinois had just found that 13 of the inmates on the Illinois death row did not belong there. Florida legislators, he remarked, thought fewer "mistakes" were made in Florida.
But, there is no reason to believe this is so. Last year alone, the Florida Supreme Court overturned 75% of the death penalty cases sent to it on direct appeal. This means that there were errors in the trial and/or sentencing phases of these cases that were so egregious the case was sent back.
The direct appeal, at the state level, is the first step in the post-conviction appeals process. The second step is to the federal courts. Once the U.S. Supreme Court has denied review, or reviewed the case and upheld the sentence, the inmate then has recourse to additional, or what are called collateral appeals at the state level. These appeals frequently involve issues such as trial irregularities, incompetency of counsel, or inadequate representation.
The new law would retain the automatic appeal to the Florida Supreme Court, but collapse the collateral appeals into one appeal in which the inmate would have to bring up any and all issues of contention. It would also begin this collateral appeal at almost the same time as the automatic appeal.
After the collateral appeal is heard, if it is unsuccessful, the inmate cannot get back into state court unless he has both a constitutional claim as well as new evidence which would indicate that he is innocent.
The legislature considers this to be a way of speeding up the implementation of the death penalty. But, as arguments before the Florida Supreme Court made very clear, it is far from certain that executions will be speeded up by the act at all.
The new law was patterned after a similar law in Texas, and the dual tracking process (the running of the direct appeal and the collateral appeal at the same time) has been implemented in Texas and in California. But, the results in Texas and in California are very different. In Texas, where the qualifications for death penalty appeals lawyers are almost non-existent, the process is indeed speeded up, but in California, where there are very strict and high qualifications required of attorneys conducting death penalty appeals, the process has almost ground to a halt.
The legal profession has become as specialized as the medical profession and almost all legal professionals agree that asking a tax lawyer to handle a death penalty appeal is like asking your proctologist to handle brain surgery.
Opponents of the new DPRA in Florida argued before the Florida Supreme Court that the only way Florida could speed up executions through this act was to follow the example of Texas and lower to the least common denominator, the requirements for death penalty appeals attorneys. This would mean widespread inadequacy of legal representation for death penalty inmates (already a problem in most states).
If stringent standards were set for death penalty appeals attorneys, the system would in fact slow down the implementation of the death penalty rather than speed it up.