Is Florida's Death Penalty in its last Leg?

Back in 1972 the US Supreme Court ruled that the death penalty in America was "cruel and unusual" because it was arbitrarily imposed and thus unconstitutional. The court laid down the law and said that although capital punishment itself was not per se unconstitutional if the individual states wanted to use the death penalty, it must be imposed fairly, with reasonable consistency. Forman v.. Georgia, 408 U.S. 238 (1972) This ruling affectively vacated all death sentences then pending at the time and the individual states quickly began rewriting their death penalty laws in a rush to comply with the Supreme Court ruling.

Florida was the first state to pass its new laws re-enacting the death penalty. Within months these new laws, supposedly designed to "narrow" the imposition of the death penalty by establishing specific statutory aggravating circumstances that must be found to exist before any defendant can be condemned to death, and soon men began filling the cells on Florida's death row. That was over 33 years ago - many of those then sentenced to death then still remain locked away in solitary confinement even after all these years. (Jacob Dougan, Gary Alvord, William Ecledge, Raymond Merks, etc) (See also "Justice Delayed is Justice Denied")

Through the years many challenges have been pursued seeking to overturn the death penalty, but none have been successful. Recently, presumably because of the increasing high number of exonerations of those wrongfully convicted and condemned to death, (See 'Southern Injustice: Condemning an Innocent man'), support for the death penalty has consistently been following. A report issued by the Justice Department this month (December 2006)found that increasingly in recent years juries are not willing to impose the death penalty. Consistently, studies have shown that if given the choice of imposing the death penalty or imposing a sentence of life without parole, jurors will choose life without parole.

But Florida is a "red" state in which conservative republicans control the branches of state government by campaigning on get-tough-on-crime issues. In November 2006 the state elected republican "Chain gang Charlie" Crist as Governor and "Mad Dog" Mc Follum as Attorney General - both of whom build their political careers with their rabid support for the death penalty and undoubtedly will continue to do so.

However, the continued validity of Florida's death penalty is presently being challenged on numerous fronts and there is reason to believe that within the foreseeable future Florida's death penalty will be declared unconstitutional. If this happens, then all those presently under sentence of death will have their sentences reduced to "life" - many of those currently condemned to die will theoretically even be immediately eligible for parole, although it is unlikely parole would be granted.

There are presently three major constitutional challenges pending before the Courts that if successful, any one of them can affectively abolish the death penalty in Florida. The one issue that has received the most public attention this past year is whether the form of execution (lethal injection) constitutes "cruel and unusual punishment" because of the manner in which it is administered.

This argument is based upon claims that the chemicals used to sedate the condemned may wear off before the second chemical is used to paralyze the inmate and the third one to cause death by cardiac arrest. Imagine if you can - being administered a drug that renders you incapable of expressing pain, then another drug that virtually burns your veins as it flows through your body and so for a prolonged period of time you're subjected to a physical pain equal to having acid poured into your guts eating its very out. Would that not be a form of excruciating torture that as a matter of moral conscience would offend any civilized society?

In 2005, the issue was raised in the case of Clarence Hill, a Florida inmate then under a death warrant and was litigated all the way up to the U.S. Supreme Court See, Hill v. McDonough, 126 S.Ct. 2096 (2006) only to be remanded back to the lower federal court where the issue was disingenuously circumvented by finding that it was "untimely" raised and thus procedurally barred from review upon the merits. Shortly after that cowardly ruling Clarence Hill was executed. Subsequently, only a month later Florida executed decorated Vietnam veteran Arthur Rutherford, also by lethal injection. (See Another Day, Another Death)

This month brought about the Christmas sacrifice, the execution of Angel Diaz a Puerto Rican native who spoke little English yet was compelled to represent himself at trial - a pathetic pretense of justice that left many knowledgeable about his case questioning whether he was even guilty of the crime.The Puerto Rican government called upon Florida Governor Jeb Bush to grant Diaz a clemency but these pleas were ignored. Diaz lawyers attempted to again have both the Florida and Federal Courts grant a stay of execution until it could be determined whether Florida's method of administering lethal injection were adequate to ensure the condemned prisoner would not suffer a prolonged barbarically torturous death - but again these pleas for judicial review of the issue were denied without addressing the merits of the claims.

At 6:00 PM on Wednesday December 13, 2006 Angel Diaz lay strapped to a gurney at Florida State Prison. As witnesses watched from behind a glass wall, the warden gave the final instruction to administer that lethal cocktail of drugs. But it quickly became evident that something had gone wrong, horribly wrong. It then took 34 minutes before Angel Diaz was finally pronounced death....34 minutes to torturously inflict death upon a possibly innocent man as he lay helplessly strapped to a gurney.

True to the inherent nature of government, immediately after this obviously botched execution was carried out the Dept. of Corrections spokesperson attempted to claim that the administration of drugs proved temporarily inadequate to inflict quick death due to Angel Diaz pre existing liver problems. However in the days that followed pieces of the real truth began leaking out to the media...the prison had used unqualified medical technicians to insert the IV needle and administer the lethal drugs.The needle had been pushed through the vein into the soft tissue and so the drugs were not injected directly into the vein. He should have been unconscious after five minutes and dead within 15. Instead, he struggled and grimaced for 34 minutes while a second dose of lethal drugs was administered, again incorrectly. The county medical examiner who performed an autopsy after the execution found 12-inch chemical burns on the interior of both his arms.

On Friday December 15, 2006 Florida Governor Jeb Bush announced that he would immediately convene a commission to look into this execution and whether lethal injection itself was being administered without the infliction of cruel and unusual punishment. Governor Bush declared that no more executions would be carried out in Florida until this issue was resolved. Additionally, lawyers for other death row prisoners are now preparing court challenges which will focus on Angel Diaz botched execution as proof that Florida's means of administering the death penalty by way of lethal injection is unconstitutional.

To those knowledgeable of Florida's death penalty system these latest challenges must seem like deja vu...it has only been a few years since Florida faced similar issues concerning the use of the electric chair. In may of 1990 Jesse Tafero was strapped into Florida's "Old Sparky". Witnesses watched in horror. As the electricity ripped through his body flames could be seen coming from his head. Although separated by a glass wall the witnesses were soon overwhelmed by the smell of burning flesh as a cloud of smoke hung over the room. Subsequently a campaign to end the use of the electric chair began but prison officials conveniently determined that Tafero's horrific execution was an isolated incident caused by the use of a synthetic sponge and could easily be remedied by going back to using only natural sponges in the headgear used to fasten the electric wires to the head of the prisoner.

But then it happened again....and again. Clearly the use of the electric chair was on it's last leg. The final execution by electrocution in Florida was the death of Allen "Tiny" Davis, a rather large man who also literally caught fire in front of the witnesses. No longer could Florida defend the use of the electric chair without risking having Florida's death penalty itself declared unconstitutional. At the time Florida did not have any alternative to the electric chair, if the courts found this method to be unconstitutional it would effectively vacate all existing death sentences. Like rabid dogs, hungry for more blood the conservative politicians in Florida called for an alternative to "Old Sparky" so that if the Courts did declare death by the electric chair unconstitutional no death sentences would be vacated. This politically inspired Machiavellian plot brought up statutory provisions adopting the use of lethal injection in Florida, and let it down the path to where it is today. But with both the use of the electric chair and now the use of lethal injection both now constitutionally questionable - and no other viable alternatives available to carry out executions in Florida - will Florida's death penalty now itself be declared unconstitutional? As this issue is now aggressively pursued through the Courts, at least two other major constitutional challenges are working their way through the Courts, either of which may very well end the use of the death penalty in Florida.

Recently in Coday v. State (Florida Supreme Court opinion released October 26 2006) at least three of the seven members expressed their opinion that Florida's death penalty is unconstitutional. In a concurring opinion, former Chief Justice Pariente spoke of how the Florida Supreme Court had previously instructed the state legislature to address Florida's capital sentencing scheme as Florida is now the only state that does not require a jury to impose a death sentence by unanimous vote, or even require jurors to identify the specific aggravating circumstances used to justify their recommendations of imposition of death. In State v.. Steele, 921 So. 2d 538 (Fla. 2005), the Florida Supreme Court explicitly admonished the Florida legislature that if it did not immediately modify Florida's capital sentencing scheme to conform with the requirements that a sentence of death must be imposed only by unanimous jury vote, then in light of Ring v. Arizona, 536 U.S. 584 (2002) Florida's death penalty itself may soon be declared unconstitutional.

Subsequently, the Florida legislature did take up the issue - and with the conservative republican legislators leading the way, voted not to change Florida's capital sentencing scheme thus making the deliberate decision to allow Florida to remain the only state that allow a person to be sentenced to death without an unanimous jury vote - and leaving Florida open to having its entire death penalty declared to be unconstitutional. (See "Don't preach pro-life while practicing pro-death"). In light of this refusal to correct this constitutional infirmity in the state legislature, legal challenges, filed by condemned prisoners are now working their way up through the courts arguing that Florida's death penalty is unconstitutional. If successful, this decision will inevitably result in vacating all present death sentences in Florida.

Last, but not by no means least, yet another significant constitutional challenge to Florida's death penalty was initiated following the recent release of a comprehensive report by the American Bar Association that found Florida's death penalty system to be fundamentally flawed. This challenge is in form of an argument that the ABA report establishes the necessary new evidence to open the door to challenge the constitutionality of Florida's dysfunctional death penalty system. Because of politically created and judicially enforced procedural rules, such as challenge to an individual death sentence that has previously been affirmed on appellate review can only come if "new evidence" can be developed that allow the claim to be timely raised. For this reason most of those currently sentenced to death cannot initiate a challenge to the constitutionality of the death penalty based upon recently empirical studies that question the validity of the manner in which that penalty has been previously imposed. However if that condemned prisoner can convince the courts that this comprehensive study constitutes newly discovered evidence that previously could not have been discovered, then a new appeal can be initiated. Alternatively under Florida law if any court does subsequently issue a ruling declaring Florida's death penalty to be unconstitutional in a manner that is considered to be a fundamental change of law, then that ruling can be retroactively applied to extend relief to all death sentenced prisoners.

The argument raised in context of this recently comprehensive ABA report is that in light of the individual and collective deficiencies Florida's present death penalty system is unconstitutional for the same reason the US Supreme Court had previously declared the death penalty itself was unconstitutional in Forman v Georgia that Florida's death penalty is arbitrary and capricious, and unnecessarily invites imposition of the death penalty when that most extreme punishment is not constitutionally appropriate.

As recognized in the comprehensive report Florida presently leads the country in the number of men and women wrongfully convicted and condemned to death. Since Florida reinstated the death penalty at least 22 men and women condemned to death have subsequently been exonerated. Additionally of the over 650 men and women originally sentenced to death in Florida since 1974, at least half subsequently had their sentences reduced when the courts found that the sentence of death was imposed improperly.

With an error rate so high one would think that as a matter of moral conscience government officials in Florida would follow Illinois' lead and impose a moratorium to study the system, identify its faults and integrate necessary reforms. But Florida won't. Even with the documented cases in which the actual execution itself was obviously botched Florida has refused to take the initiative to correct problems.

With the Florida Supreme Court advising the Florida legislature to address the capital sentencing scheme due to clear constitutional problems the legislature refused to do so. And when the American Bar Association issued its own report following a comprehensive study that identified the fundamental flaws in Florida's death penalty, the State refused to impose a moratorium until adequate corrections could be made. Collectively, the result is clear - Florida's death penalty should be declared unconstitutional and abolished permanently. With such a well documented history politically motivated corruption that has created an inherently unfair system, as a matter of moral conscience Florida should not be allowed to impose the death penalty as such a politically corrupted system simply cannot be trusted with carrying out this ultimate punishment that itself has no place in a civilized society.

Regardless of whether one philosophically supports the death penalty or not it is that element of moral conscience that whatever measure of justice might be administered, it is administered in a fundamentally fair and humane way, and with the compassion and constraint of a civilized society. To condemn a man to death is in itself a conscious decision to deliberately take a human life. Although it is convenient to justify capital punishment by blindly adopting that "eye for an eye"mentality it is not and cannot be that superficial or simplistic. The punishment is by its very nature absolutely irreversible - once carried out it cannot be undone. To tolerate a system that has proven not only its inherent imperfection, but its unwillingness to correct identifiable imperfections is to advocate imposing this ultimate punishment upon the absolutely innocent, to make victims of the innocent under the pretense of administrating "justice". Even if we are morally certain of guilt, to tolerate a process that inflicts that punishment in a torturous and barbaric manner makes barbarians out of all of us.

Whether Florida's death penalty is on its last leg or not remains to be seen. But knowing what we do know about Florida's death penalty system as a matter of conscience we individually - or as a collective society - continue to tolerate a system so fundamentally flawed? If Florida's death penalty survives these latest challenges then what will that say about us as a supposedly civilized society?

Michael Lambrix