The Florida Bar

Florida Bar News

Criminal Law Section supports review of death penalty process

Senior Editor Regular News

Criminal Law Section supports review of death penalty process

Senior Editor

The Criminal Law Section has endorsed reviewing Florida’s death penalty procedures, but declined to support a review for juveniles sentenced as adults to long prison terms.

Mark Schlakman, of the Florida State University Center for the Advancement of Human Rights, appeared before the section’s Executive Council at its September 23 gathering during the Bar’s Midyear Meeting on the death penalty issue.

He noted that five years ago, the ABA released a report on Florida’s death penalty process that called for a complete review of legislative, executive, and judicial branch involvement. That study, Schlakman added, did not engage in any philosophical debate on whether the death penalty is right or wrong but merely looked at the procedures for carrying it out in Florida.

Two years ago, the Florida Supreme Court revised jury instructions in capital cases because of the ABA report, Schlakman said, but other recommendations have languished.

“A comprehensive review would be in everyone’s best interest, irrespective of whether one is supportive of or opposed to the death penalty,” he said.

Schlakman noted the recent ruling by U.S. Southern District Judge Jose E. Martinez, which held the Florida death penalty unconstitutional because the judge had too much say, as opposed to the jury, in imposing a death sentence.

“This is not pro- or anti-capital punishment in Florida. There are real problems in Florida. No one is looking at capital punishment at its core in any of the three branches of government,” said council member David Rothman. “There’s never any harm in looking at something and carefully examining it.”

“Nobody thinks that executing the innocent is a good idea. But other than putting this down on paper, nobody is going to do anything about it once it leaves here,” said council member Abe Laeser.

Schlakman disagreed, noting one state senator is introducing a bill to require unanimous jury recommendations for the death penalty and that TaxWatch may study the financial implications of the death penalty.

“There is a compelling need for this type of comprehensive review,” he said. “It won’t happen unless those who have a vested interest like the Criminal Law Section, if not the [Bar] Board of Governors as a whole, speak up and take a position.”

The council voted 23-3 to adopt as a legislative position having a comprehensive review of death penalty procedures. (The Board of Governors must still review the section’s action.)

Juveniles Sentenced as Adults

Gerry Glynn of the Bar’s Legal Needs of Children Committee presented its legislative position on children sentenced as adults to long sentences for nonhomicide offenses. The committee won approval to lobby its position from the Board of Governors in July.

Glynn noted that the U.S. Supreme Court ruled last year in Graham v. Florida that juveniles sentenced to life sentences for nonhomicide offenses must have legitimate opportunities to have those sentences reviewed.

The LNOCC’s legislative position goes further by advocating that any child sentenced in adult court to a sentence of 10 years or longer should have a meaningful opportunity for early release, based on demonstrated maturity and rehabilitation. The committee did not take a position on how that “meaningful opportunity” would be provided.

The committee’s position is based on research that shows juveniles do not have fully developed brains and “do not have the same mental capacity to makes decisions that adults do,” Glynn said, and should have a review when they’ve grown up. “Our position does not take a position of what those [review] criteria should be; they just say it should be a meaningful opportunity,” he added.

Lawmakers earlier this year considered a bill that would provide parole review for life-sentenced juveniles, but it failed.

Two bills introduced for the 2012 session would provide a review for life-sentenced juveniles, while a third would provide a review after seven years for those sentenced to longer terms, Glynn said.

Criminal Law Section Executive Council members, though, had several reservations, which included how the position could affect the state’s 10-20-Life law on using firearms during a crime, and the potential disparity of treatment for those committing a crime just before their 18th birthday and those committing a crime just after that birthday. Some also expressed concern that reviewing 10-year sentences was too low a standard.

“Yes, there are people under the age of 18 who made bad judgments. There are people [just] over the age of 18 who made bad judgments,” Laeser said. “For people over the age of 18, the state of Florida has decided there is no option; they do 85 percent of their sentence. For people under the age of 18. . . I’m troubled by the idea that being on their best behavior for a period of years gets them to the point where somebody says, ‘Whatever was your crime, that’s not an important factor.. . . ’

“I think the 10 years really sticks in my throat. What I’d like to think is that the judges who sentenced them originally gave them a severe sentence because they thought the person and the crime deserved it.”

The council initially voted 15-11 to reject the committee’s requested position. A second motion to allow for a review, but not specifying a minimum length of qualifying sentence, received a favorable 14-12 vote, but fell short of the two-thirds required for the section to take a legislative position.

News in Photos