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March 16, 2014

The state of the death penalty in the Sunshine State

This lengthy new Orlando Sentinel article, headlined As death penalty wanes in U.S., Florida executes even more killers," provides a review of capital realities in a state that now leads even Texas in number of executions in 2014 so far. Here are some of the details:

Robert Lavern Henry is set to be executed this week for killing two women in 1989 by beating them with a hammer and setting them on fire in a Deerfield Beach fabric store. He would be the 16th prisoner executed under Gov. Rick Scott's watch, more than any other modern Florida governor in a single term.

At a time when other states are curtailing or outlawing executions, Florida is bucking the trend. A swelling number of death sentences handed down in the 1990s are reaching the ends of their appeals. Florida also is experiencing a rare window of relatively few legal challenges, botched executions or political infighting over the issue....

Florida has been more likely to hand out death sentences and is the only state that doesn't require unanimous jury recommendations for the death penalty. Florida's 15 death sentences and California's 24 accounted for nearly half of the death sentences dealt nationwide in 2013, according to the Death Penalty Information Center.

Only nine states carried out executions in 2013, and Maryland became the sixth state in six years to outlaw the death penalty. Meanwhile, Florida executed seven people in 2013, second only to Texas with 16. Florida leads the country with three executions so far this year.

Yet some experts say the Sunshine State's death-penalty system needs sweeping change. Christopher Slobogin, a law professor at Vanderbilt, chaired the American Bar Association's Death Penalty Assessment Team, which in 2006 issued a study that pronounced Florida capital punishment deeply flawed.  It recommended a top-to-bottom review to ensure innocent people weren't being executed. But that never happened. "As far as I can tell, the Florida system remains in just as much disarray as when we looked at it," he said.

Some lawmakers are still trying to carry out one of the team's proposals to require unanimous jury sentencing recommendations for the death penalty. "Florida is an outlier," said Rep. José Javier Rodríguez, a Miami Democrat sponsoring the bill, HB 467.

Instead, lawmakers and governors have tried repeatedly during the past three decades to accelerate executions....

The latest example is the 2013 "Timely Justice" law, which required the clerk of the Florida Supreme Court to certify a list of cases ready for death warrants. In October, the clerk sent a list of 133 names where appeals had been exhausted to Scott's office, out of the about 400 people on death row.

The law set timelines for when Scott must act on those names, although his office still solely determines when the clemency process has been exhausted. "I think over time we'll see the average amount of time people spend on death row decrease exponentially," said Rep. Matt Gaetz, R- Fort Walton Beach, who sponsored the bill. "The effect is clear." Florida death-row inmates wait about 14 years on average to die, the Department of Corrections says....

This past summer, a group of lawyers representing death-row inmates challenged the "Timely Justice" law as a violation of separation of powers and due process for inmates. The Florida Supreme Court heard arguments last month but hasn't ruled yet.  Lawyers last week asked the court to delay Henry's execution until a decision is rendered, but the justices Friday denied that request.

March 16, 2014 at 08:50 PM | Permalink


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I would think a report of what cases have been dealt with (even a narrow category of such cases) would be well within the sorts of things a legislature can require of the courts. It is a completely ministerial task and does not purport to require any particular outcome in any case before the court.

Of course I also think it is a little silly to examine the number of new death sentences issued, given just how long the road is between that initial determination and an actual execution. For one, I suspect that most of the reason CAalifornia coninues to have so many new death sentences is the unfortunate knowledge by all involved that the sentence will not actually be carried out.

Posted by: Soronel Haetir | Mar 16, 2014 10:51:03 PM

sorry but I think the defense lawyers are talking out their asses on this one. Sorry but I think the "timely justice law" is perfectly legal. It's not speeding up anything except removing individuals who's appeals process is done. Personally I don't think it goes far enough. Once all appeals are done a list should be generated true. But it should also include an automatic execution date for each name on the list. Said execution to be carried out automatically unless some type of new evidence or new law stops it.

Posted by: rodsmith | Mar 17, 2014 12:00:31 AM

“Meanwhile, Florida executed seven people in 2013”
“Christopher Slobogin, a law professor at Vanderbilt … recommended a top-to-bottom review
to ensure innocent people weren't being executed. But that never happened.”

 Just like the execution of innocent people never happened.

Posted by: Adamakis | Mar 17, 2014 9:46:03 AM

There were 69 murders in Miami in 2012.


Seven people were executed in the state in 2013.

This is considered a notable amount. Tinker tinker and most murderers, by the choice of the people of the state, will not be executed.

Posted by: Joe | Mar 17, 2014 9:50:04 AM

Joe --

Do you think that the fact that most murderers aren't executed is a reason that none should be, ever?

Posted by: Bill Otis | Mar 17, 2014 10:40:08 AM

Another “innocent” one, Peter et al.
Here’s the facts on #4 of your 19 “innocent” gits:

in Georgia:
Warren McCleskey


| New York Times | “[Years later] He neither confessed to being the gunman nor did he say he was innocent of the killing.” – by Peter Applebome, 9/26/91

| Executed Today | “… McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision” – 9/25/11
| ACLU | "If the Justices live in the world" I said to myself, they will see the pattern of racially biased sentencing for what it is ...
in the case we called the Dred Scott decision of our time...” – “A Personal Reflection on McCleskey v. Kemp”, 4/23/12

| New York Times | “Warren McCleskey, who died in Georgia's electric chair last week, was no saint or hero. He was a robber, part of a gang that
shot and killed an off-duty police officer during a holdup. Thirteen years later, however, a question reverberates:
Did Warren McCleskey deserve the chair?” – Editorial, 9/ 29/91
| Justice Brennan | “The Baldus study indicates that, after taking into account some 230 nonracial factors that might legitimately
influence a sentencer, the jury more likely than not would have spared McCleskey's life had his victim been black.”-- (481 U.S. 279)



• “McCleskey took the stand and renounced his robbery confession. He denied any involvement with the crimes and offered an unsubstantiated alibi defense.
… However, direct and circumstantial evidence pointed to McCleskey as the triggerman – Creighton Law Review, 25-233, 1991-1992
• “The evidence at trial indicated that … McCleskey entered the front of the store while the other three entered the rear. McCleskey secured
the front of the store by rounding up the customers and forcing them to lie face down on the floor.

• “[McCleskey] confessed that he had participated in the furniture store robbery, but denied that he had shot the police officer. At trial, the State introduced evidence
that at least one of the bullets that struck the officer was fired from a .38 caliber Rossi revolver. This description matched the description of the gun
that McCleskey had carried during the robbery.
• “The State also introduced the testimony of two witnesses who had heard McCleskey admit to the shooting.” -- (481 U.S. 279)

• “McCleskey had a .38 caliber Rossi nickel-plated revolver, Ben Wright carried a sawed-off shotgun, and the two others had blue steel pistols.
• “McCleskey admitted the shooting to a co-defendant and also to a jail inmate in the cell next to his, both of whom testified for the state.” -- (753 F.2d 877)

Posted by: Adamakis | Mar 17, 2014 11:45:01 AM

Bill -- That is sort of what the Supreme Court thought in Furman. Of course, that was because they found the division of murders into "worthy of execution" and "not worthy of execution" to be arbitrary or, worse, attributable to unjust factors such as race.

Supposedly the post-Gregg/Woodson "guided discretion" statutes were going to fix that. So as a matter of modern constitutional doctrine it is true, as you imply, that "the fact that most murderers aren't executed" is not a valid "reason that none should be, ever." Again, this is because the new statutes and individualized trial sentencing are supposed to be narrowing the class of the executed to the "worst of the worst" cases, defeating the prior problem of arbitrariness.

Of course, if you are convinced, as I am, and as, for example, Justice Stevens became at the end of his career, that this supposed post-Furman narrowing is illusory and that the distribution of the DP among the general class of murders is only marginally less arbitrary than it was before Gregg/Woodson et al., then you could reasonably answer "Yes" to the question you ask. In other words, while I will let Joe speak for himself, for my part, I would answer: "Yes, because the modern system does not meaningfully remedy the pre-Furman problem of arbitrariness, the fact that most murderers aren't executed is a reason that none should be, ever."

Posted by: anon | Mar 17, 2014 11:45:20 AM

anon --

Why does the infrequency of executions indicate "arbitrariness" rather than, for example: (1) our procedures are overloaded with chances to escape the DP, with every default set to LWOP; or (2) that it's simply become very expensive, so it doesn't get done very much for reasons having nothing to do with morality; or (3) that, being a humane country, we're reluctant to execute people but will do it in clear cases; or (4) that, for similar reasons, we prefer to reserve executions for cases in which the proof of guilt is unarguable rather than merely extremely convincing?

And why shouldn't the standard simply be whether Defendant X DESERVES execution under the community's prevailing sense of justice, no matter if Defendant Y got lucky with the judge (or just never got caught)? Many murders are not solved at all. Does that mean those that are count as "arbitrary" and cannot be punished?

Finally, when folks on your side have been telling us for years that we should only execute "the worst of the worst" -- which by definition is going to be only a very few -- why then should the execution of only a very few (to satisfy your demand for more painstaking selectivity) be transformed into no executions at all? Wouldn't that be taking advantage of the good faith of your adversaries who wanted to come toward your direction? Should you be doing something like that? Should your adversaries allow it?

Posted by: Bill Otis | Mar 17, 2014 5:32:25 PM

There are three states that allow a death sentence without an unanimous vote. Florida, Alabama and Delaware.

Also, the lethal injection issues were totally resolved with Baze in April 2008. Former Florida Governor Crist signed only a handful of death warrants during his last 32 months in office.

Posted by: DaveP | Mar 17, 2014 10:54:34 PM

Let me intercede here and hear my comment, the death penalty historically in the United States was not common unless say a police officer was killed or other say gruesome deaths, if you murdered someone in the early to mid 20th century you would probably get say 20 years in prison. I think the death penalty and the life sentences were after the US briefly banned the death penalty in the 1970s, so life sentences came about and then reinstated by the courts. This should probably be in the LWOP parole section but wanted to add my thoughts.

Posted by: alex | Mar 18, 2014 5:56:14 AM

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