June 01, 2013

Florida Accelerates Death Penalty Process with “Timely Justice Act”

Susanna Bagdasarova

A new Florida law signed into effect by Governor Rick Scott in June 2013 seeks to accelerate the pace of the state’s death penalty process. Dubbed the “Timely Justice Act,” the law requires the governor to sign a death warrant within 30 days of the conclusion of clemency review and schedule an execution within 180 days of the issuance of the warrant. The Act is the first law of its kind in the country, and supporters say that the law will ensure that cases are processed in a timely manner. Opponents, however, say that the law will exacerbate existing problems in a system already plagued by errors and a lack of funding and resources.

A panel of experts convened by the ABA identified many of these issues during a two year study of Florida’s death penalty system that concluded in 2006. The study found inadequate compensation for trial counsel, a lack of qualified and properly monitored appointed post-conviction counsel, significant juror confusion over the applicable law, and racial and geographic disparities in capital sentencing. The experts also expressed serious concern about the lack of a unanimity requirement in sentencing. Florida is the only state in the country that allows a simple majority – a seven to five vote – to recommend a sentence of death.

These systemic problems are reflected in the error rate in Florida capital cases. More death row prisoners have been exonerated in Florida than anywhere else in the country. Since 1976, the state has executed 77 people; during that same time appellate courts have found that 24 Florida death row prisoners were wrongfully convicted. That is roughly one exoneree for every three prisoners executed. The Act does nothing to correct this problem; rather it further curtails appellate review by accelerating executions.

The Act ostensibly addresses a major issue in Florida’s counsel system by reopening the northern district Capital Collateral Regional Counsel Office. That office provided post-conviction counsel in the northern region of the state until it was disbanded in favor of a pilot program of private appointed attorneys in 2003. During the ten years of its existence, this pilot program was widely criticized, including by Florida Supreme Court Justice Raoul Cantero, who described the work of the appointed lawyers as “[s]ome of the worst lawyering” he had ever seen. Although the Act eliminates this failed program, it provides no relief for the prisoners who may have received ineffective representation while the program was in place. In fact, many of the prisoners whose appeals were exhausted under the pilot program may now be subject to expedited execution procedures without appointment of new counsel. Additionally, the same appointed counsel will continue to represent many death row prisoners in their appeals, and the Act authorizes those attorneys to double their capital caseloads.

Since taking office in January 2011, Governor Scott has signed eleven death warrants, and 13 more inmates face the imminent issuance of death warrants according to the accelerated timetable laid out in the Act.

More than 100 current death row inmates have already filed a challenge to the Act in the state supreme court. The lawsuit, filed in late June, claims that the Act violates Florida prisoners’ rights to due process and equal protection as well as interfering with the court’s judicial rulemaking authority. The suit urges the court to avoid “mistakes of the past” in the Florida death penalty system: “The interest in timely adjudication of capital cases is superseded by the need to provide adequate process for resolution of constitutional issues. Constitutional protections must not be lost to expediency.”

Susanna Bagdasarova