Martin Dyckman, Author at Florida Politics

Martin Dyckman

Martin Dyckman: Florida needs answers on death penalty discretion

The courtroom at the Florida Supreme Court seats 164, which may not be enough for all the attorneys, organizations and individuals who have intervened in the unprecedented case of Aramis Ayala v. Rick Scott.

Six groups have weighed in as friends of the court on behalf of Ayala, the state attorney for Orange and Seminole counties who is fighting to regain the 23 murder cases that the governor assigned to another prosecutor after she said she would not seek the death penalty in any of them

Among her supporters is a group of 45 prominent lawyers and judges, most well-known nationally. Among them are four former Florida Supreme Court justices, two former presidents of the American Bar Association, nine current and former district attorneys in other states, and four former U.S. Justice Department officials including Jamie Gorelick, who was Attorney General Janet Reno‘s deputy.

Three “friends of the court” support Scott, among them the Florida House of Representatives and the Florida Prosecuting Attorneys Association, which sided with the man who controls their budgets rather with the colleague who is fighting for their independence as well as hers.

One group of families of murder victims is backing Ayala. Another is for Scott.

Despite the extraordinary interest, this case is not going to decide whether the death penalty is as error-prone, financially wasteful and as altogether counter-productive as Ayala correctly insists.

Florida needs answers to those questions, but capital punishment is one of those issues where precious few politicians care to be confused by facts. As the steam was building in Ayala v. Scott, the House of Representatives defeated a budget amendment calling for an objective study of the costs and consequences of the death penalty.

For the court, however, the questions are simply these: Did Ayala abuse her discretion in deciding as she did? Did Scott abuse his in stripping her of those 23 cases?

It’s one of the most significant arguments the court will ever hear. Florida prosecutors make perhaps tens of thousands of judgment calls every year: What crime to charge? What crime not to charge? What plea to accept? They have even more power than the judges in deciding who goes to prison and for how long.

Should a governor be able to supersede one of those decisions simply because he doesn’t agree with it? Carried to an extreme, that makes him a dictator.

As the brief of the 45 lawyers and judges argues, “The real issue—and the one properly before this Court—is the independence of state attorneys to exercise their discretion without interference from other political branches of government. Indeed, this case puts squarely at issue the fundamental independence of prosecutors and the judicial branch …

“The Florida Constitution does not allow the governor of the state to support the exercise of prosecutorial discretion only when he finds it agreeable to and to intervene when he feels otherwise.” the brief says.

This is the gist of Ayala’s case, although she contends that the governor’s power to reassign state attorneys is a lot less limited than Scott’s predecessors have taken it to be. They sent in substitutes not only when some prosecutor reported a conflict of interest, such as a relative or former client facing charges, but also in cases of official misconduct where they believed the resident prosecutor was compromised by friendship or indifference. But I can recall no case like Ayala’s, in which the issue is not whether to prosecute for a crime but only whether to ask for a specific penalty.

Scott contends that Ayala made an “across the board determination not to undertake a case-specific analysis.” In effect, his lawyers say, she decided not to exercise her prosecutorial discretion.

His position appears somewhat inconsistent with what the governor’s office wrote last year to a citizen who had complained about another state attorney.

State attorneys are independently elected, charged with “certain discretionary duties,” and answerable only to their voters, the letter said.

All this begs the question of whether Florida will be harmed in any way if Ayala gets the cases back and the defendants she convicts go to prison for life instead of to death row.

The answer is no. Florida would be better off.

The killers would be behind bars for life. Anyone who thinks that’s getting away with murder should consult the ghost of Aaron Hernandez. Florida would spend a lot less money putting them in prison and keeping them there. There would be no multiple rounds of appeals, many of them to federal courts beyond the state’s control. The families of victims wouldn’t have to wait 20 or 30 years or longer for closure.

In any event, the voters of Orange and Seminole counties will have the opportunity to pass judgment on Ayala three years from now. Why isn’t Scott willing to wait for that? Is it because that would be no help to his U.S. Senate campaign next year?

It would be useful — and overdue — to have a comprehensive study from the Legislature’s highly capable and nonpartisan office of Office of Program Policy Analysis and Government Accountability. Among other things, the people deserve to know how much extra money they are spending on death cases. OPPAGA should also be tasked to explain in detail what happens to the enormous majority of killers who don’t end up on death row. In fiscal 2015, for example, Florida courts sent 942 people to prison for homicides ranging from manslaughter to first-degree murder, but only eight to death row.

A safe guess would be that prosecutorial discretion accounted for virtually all of that. Isn’t it time to know?

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Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Martin Dyckman: On death warrants, Florida governor’s ‘awesome moral responsibility’

When former Florida Gov. LeRoy Collins was nominated in 1964 to head the nation’s new Community Relations Service, South Carolina Senator Strom Thurmond opposed him aggressively because Collins had renounced racial segregation.

“…I hope that as long as the good Lord lets me live on this earth I will continue to grow and to recognize changes and to meet the new responsibility as changes require,” Collins said.

The widely-reported confrontation prompted Dessie Horne Williams, a Miami schoolteacher, to write to Collins, recalling a meeting with him five years earlier at the governor’s office.

“(W)e have always thought of you as a kind, understanding man, who feels compassion for human suffering no matter what color the skin of the sufferer may be,” she wrote … You, Governor Collins, are a true” Southern gentleman. May God keep you through the coming trials.”

Collins’s courtesy to anyone he met was legendary. Even so, the Williams letter was remarkable.

On the occasion she described, she and her parents were pleading for the life of her brother, Willie Horne Jr., who was condemned to die for rape. Collins commuted 10 of the 39 death sentences that came to him, but not Horne’s. The prisoner was executed in January 1959. However, Collins had given his family his personal attention and a full measure of compassionate respect.

At the time, though, Ms. Williams had asked a question that struck his heart: “Do you think that my brother is going to die because he is black?”

Collins assured her that it was only because of the brutality of the crime. The victim’s escort, a court said, had been beaten senseless with a tire iron.

But the governor’s conscience was troubled. He knew that had the victim been black or both parties white, the jury almost certainly would have recommended mercy. He tasked his staff to find reasons to repeal the death penalty, and when the Legislature convened a few months later he asked that it do so.

The House committee that killed the bill said that without the possibility of a death penalty, a resumption of lynchings “can certainly be anticipated.”

It was a rare if unwitting acknowledgment of the profound racism that accounts for the South’s peculiar and persistent obsession with the death penalty.

It clearly matters more to the politicians than to the voters. A Florida survey by Public Policy Polling last year found that only 35 percent of respondents favored execution over life without parole. The question was asked in the abstract however, without a politician waving some bloody shirt in the background.

Collins confronted the racism.

“By far the great majority of those to be executed were Negroes,” he said, “and yet only 17 percent of the state’s population were colored. It was a gross travesty on the principle of equal protection.”

Whites are now the majority on Florida’s death row, but blacks are still disproportionately represented. Florida has never executed a white for a crime against a black but one appeal is pending. As of last October, blacks were still the majorities on 12 other death rows, nine of them in the South.

Although the death penalty remains in force outside the South, it is in near disuse except in Florida and other former slave states. The South accounts for 1,180 of the 1,448 U.S. executions since the Supreme Court reinstated capital punishment 41 years ago, according to the Death Penalty Information Center in Washington. That’s 81 percent. Florida is fourth highest on the list with 92. Texas leads with a staggering 542. Outside the South, however, there haven’t been any since 2014, except for one in Oklahoma.

Race bias was evident in how Florida governors and the state pardon board commuted death sentences between 1924, when Florida first began to keep track of them, and 1964, when executions paused for 15 years.

In a paper published in 1993, Margaret Vandiver, a criminology professor at the University of Memphis, found that blacks condemned for crimes against whites in Florida were executed in 90 of 95 cases. On the other hand, whites whose victims were white received clemency in 22 of 83 cases. Blacks on death row whose victims were black were spared nearly half the time, in 27 of 61 cases. There were no death sentences, hence no commutations, for whites convicted of crimes against blacks.

The disparity was greatest in convictions for rape, which is no longer a capital crime. Of the 40 black men condemned for raping white women during the 40 years Vandiver reviewed, only two got clemency. One was Willie Irvin, of the “Groveland Four,” who had been framed by a racist sheriff. The Florida House of Representatives formally apologized to their families last week. Irvin had exhausted his appeals when Collins drew vehement criticism for commuting his sentence in 1955.

The point is that Collins did commute his sentence, doubting his guilt, and spared nine other men as well. No Florida governor has commuted a sentence since Bob Graham last did so in 1983. In another glaring departure, Florida governors apparently are no longer willing to face or hear from the families of condemned prisoners, as Collins did every time.

I have been trying with scant success to find out how Gov. Rick Scott considers clemency in comparison to how Collins did it. Among the questions I sent his press secretary, Lauren Schenone: Does he accept comments from lawyers for death row inmates? Does he consider each case himself or does he accept the decisions made by former governors whose death warrants were stayed in the courts? Does he consider the trial and appeal process to be essentially infallible?

Her answer was terse, said little, but was revealing in one important respect.

“Signing death warrants is one of the Governor’s most solemn duties. His foremost concerns are consideration for the families of the victims and the finality of judgments. (Emphasis supplied.)

“Our office follows procedures outlined in Rule 15 of the Rules for Executive Clemency on this process,” she said.

Rule 15 shrouds all the process in secrecy and says that the Commission on Offender Review “may” — not shall — conduct an investigation in each case. There is no data on how often it does so. The rule also provides that the Governor and Cabinet may schedule a public discussion, but that practice ceased during Jeb Bush’s term.

The words in italics, “finality of judgment,” suggest that Scott doesn’t care, as Collins did, that the courts might make mistakes with fatal consequences. His conscience is dead to that possibility. Once the legal case is over, that’s it.

That is a profound abdication of a governor’s most awesome moral responsibility.

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Martin Dyckman is a retired associate editor of the Tampa Bay Times and author of “Floridian of His Century: The Courage of Gov. LeRoy Collins,” published by the University Press of Florida. He lives in Asheville, North Carolina.

Martin Dyckman: Clemency and Florida’s overbearing ‘politics of death’

He would put it off as long as he could, aides said, and trembled when he finally had to sign a black-bordered death warrant. Despite his profound opposition to capital punishment, LeRoy Collins sent 29 men to their doom during his six years as Florida’s governor. He was in anguish each time.

To some people, that example casts a poor light on Aramis Ayala, the state attorney for Orange and Seminole counties, whose announced decision to seek no death sentences is the crux of an unprecedented battle in the Supreme Court with Gov. Rick Scott and, now, the Florida House of Representatives.

But it is Scott and five of his predecessors who come off worse in comparison with the totality of Collins’s record. The awesome power to commute death sentence has been a dead letter in their hands.

Collins, however, was unafraid to exercise that power, and he commuted 10 death sentences to life in prison, nearly one in every four that came to him.

No Florida governor has granted clemency to any death row inmate since Bob Graham last did so in 1983. The six sentences that Graham commuted comprise Florida’s entire total since the death penalty was restored in 1976. There have been 76 executions since then.

Meanwhile, 276 condemned men and women have been spared by executive action in 22 other states — including Alabama, Texas and Louisiana — and the federal government.

In Florida, however, what New York’s Gov. Mario Cuomo aptly called “the politics of death” are so overbearing that Gov. Lawton Chiles could not get the necessary majority of the Cabinet to agree with him to spare Danny Doyle, a mentally retarded murderer from Broward County. The outcome was a curious compromise: to postpone Doyle’s clemency hearing for 25 years. Doyle remains on death row. The unconventional reprieve expires this year.

The U.S. Supreme Court has since forbidden the execution of mentally retarded inmates but left it to the states to decide who is sufficiently retarded. Gov. Rick Scott, an avid advocate of the death penalty, could conceivably sign the death warrant that Chiles forestalled in 1992. On that occasion, Doyle’s fate was debated in a public meeting, but Gov. Jeb Bush put a stop to discussing death row cases in the sunshine. Bush, Charlie Crist and now Scott have never offered any reason for denying clemency other than to say they found no grounds to overturn the verdicts of the courts. That simply means they haven’t been looking hard enough.

Throughout history, kings, presidents and governors have been the courts of last resort for prisoners who have exhausted their legal appeals. However, they act or not, largely unbound by any rule of law and subject to no appeal. Clemency is regarded as an “act of grace” that requires no explanation for being granted or denied. Florida’s Administrative Procedure Act explicitly excludes it.

It is hard to understand or excuse why Florida’s most recent governors have refused to spare anyone. Perhaps they have believed that the judiciary is infallible. But it is not. Jurors make mistakes, prosecutors don’t have to explain why they seek death in some cases and not others, and killers can sell out their less culpable co-defendants to save their own skins.

The system is so rule-bound that an inmate can lose his life because an attorney did not make an objection or file an appeal at the right time.

In 1993, even as he voted with a unanimous court to allow the execution of Larry Joe Johnson, Florida Justice Gerald Kogan decried “the problems inherent in applying procedural bars to death cases.” Florida, he said, “will electrocute a man injured and most probably maimed psychologically while serving in his nation’s military in Vietnam and elsewhere. This will happen even though it is clear that, had this case been tried today, the procedures used in the trial court … would have been self-evidently defective … The record, in this case, leads me to the disturbing conclusion that the legal system has failed to give Larry Joe Johnson even one particle of credit for his honorable service to his country or for the injury and disability he suffered while in the armed forces of the United States.”

Kogan’s cry from the heart prompted Chiles to withdraw Johnson’s death warrant for more study, but he signed another one after an expert who had diagnosed post-traumatic stress disorder changed his opinion. Johnson died.

A governor who might fear political consequences from showing mercy should consider the courage Collins displayed in December 1955 when he and the Cabinet spared the life of Walter Lee Irvin, a black man who had been twice condemned for raping a white woman in Lake County. Collins was contemplating a campaign for re-election in a climate supercharged by the U.S. Supreme Court’s decision to ban racial segregation in the schools. The judge in the case and the sheriff, a notorious racist, did everything they could to hurt Collins politically, but he was re-elected.

“In all respects my conscience told me that this was a bad case, badly handled, badly tried, and now on this bad performance I was asked to take a man’s life. My conscience would not let me do it,” Collins said.

Subsequent investigations showed that Irvin and his three co-defendants, two of whom had already been shot dead, were most surely innocent, framed by the sheriff. It wasn’t even clear that a rape had taken place. Two legislators from South Florida are now trying to pass a resolution affirming the innocence of the “Groveland Four.”

Irvin, who lived long enough to be paroled, would have died in the electric chair but for a governor whose conscience defied the politics of death.

In a subsequent column, I’ll write more about Collins and about the remarkable litigation between Ayala and Scott.

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Martin Dyckman is a retired associate editor of the Tampa Bay Times and the author of “Floridian of His Century: The Courage of Governor LeRoy Collins,” published by the University Press of Florida. He lives in Asheville, North Carolina.

Martin Dyckman: Who needs strong, independent courts? We do.

It’s a paradox in America’s ongoing experiment with self-government that we depend on the weakest branch of government to defend us from the more powerful ones.

The Founders gave a lot of thought and ink to this. Writing in the Federalist, Alexander Hamilton pointed out that the judiciary would always be “least dangerous” to the public’s freedoms because it would be “least in a capacity to annoy or injure them.”

The courts have no police or troops of their own, no power to make laws but only to review them, no control over even their own budgets.

It would be their job, though, to protect against abuses of power by the president or the Congress.

When you see one of those branches going after the courts, like the hotheads in the Florida Legislature at the moment, consider whose ox they’re really trying to gore: yours.

Three pending acts reek of political revenge against the Supreme Court for its decisions to enforce the “Fair Districts” initiatives that voters approved, overwhelmingly, in 2010.

You voted to put a stop to political gerrymandering. You wanted to choose your legislators rather than have them choose you.

The Legislature largely ignored you, to put it politely, and tried to hide the evidence of its skullduggery by hiding behind such phony excuses as “legislative privilege” and “trade secrets.” All that took time, nearly three years in fact, but the court eventually, and rightly, ordered up new maps for the state Senate and the congressional districts.

Now look what’s happening:

— HJR 1, Speaker Richard Corcoran‘s top priority, would impose 12-year term limits on Supreme Court justices and judges of the district courts of appeal. Nearly everyone who doesn’t have a grudge against the courts thinks that’s a bad idea and unnecessary as well, The House passed this with one vote to spare. The Senate appears to be holding on to it as a bargaining chip.

— HB 301, also now in the Senate, nitpicks at the court by calling on it to submit annual reports detailing how many cases are awaiting decision and for how long. That’s a blatant invasion of the court’s constitutional power to make its own rules.

— S for SB 352, a transparent erosion of the “Fair Districts” initiatives, provides for challenged districts to go on the ballot if the cases are still pending in court by the campaign filing deadlines. In the event a map is found unconstitutional afterward, the remedial districts would not go on the ballot until the subsequent election.

In practical terms, it’s impossible to complete any complicated case in the few months between a legislative session and the filing deadlines. What if the politicians whose seats are at stake might again be the culprits behind prolonging the litigation? That would not matter.

This particular act of legislative arrogance also tries to tell the court how to conduct its hearings, although it couches this as encouragement rather than a command. And it cheekily maintains that none of this is meant to “supersede or impair” the Fair Districts amendments. There’s an “alternative fact” for you.

Lord Acton‘s famous maxim that “power tends to corrupt, and absolute power corrupts absolutely” is on almost daily display in Congress and the state legislatures. The perks and emoluments—doorkeepers, pages and messengers, reserved parking places, and, not least, the fawning lobbyists—are intoxicating. One can quickly forget to whom that House or Senate seat actually belongs.

Without the courts—the federal courts, in this instance—the people of Florida might still be the servants of a legislature so malapportioned that fewer than 15 percent of the people, residents of the smallest counties, could elect a majority in both houses.

It was that Legislature, in 1957, which had passed an “interposition” resolution declaring that U.S. Supreme Court desegregation decisions were null and void in Florida. But of course they were not null or void, and the same fate awaits the present legislation that attempts to tell the Florida Supreme Court how to do its business.

Some other incidents are worth recall.

In 1982, the Legislature put on the ballot a constitutional amendment purporting to require financial disclosure by former legislators and Cabinet members who intended to lobby. The title and summary neglected to mention that this would nullify an absolute two-year cooling-off period, directly subverting former Gov. Reubin Askew‘s ethics in government initiative of 1976.

Askew sued, and the Florida Supreme Court threw the deceptive amendment off the ballot. The Legislature did not like that.

In 2000, the court invalidated a constitutional amendment after it had been approved in an election because it had been misrepresented as preserving the death penalty when the intended result was actually to have more executions. Again, the Legislature was unhappy.

In 2010, it bounced two legislatively proposed amendments for misleading language: one dealing with health care, and another that could have weakened the pending “Fair Districts” initiatives.

As for term limits, the way they have dumbed down the Legislature since they took effect there in 2000 hardly makes a case for doing the same to the appellate courts.

Florida needs nothing less than to discourage lawyers in mid-career from devoting themselves to their profession’s highest calling.

It was four such young lawyers who redeemed the Supreme Court from a slough of ethical scandals in the 1970s. Of the four, Ben Overton was the only one who stayed longer than seven years. Arthur J. England and Alan C. Sundberg returned voluntarily to private practice. Joseph Hatchett was appointed to a federal appeals court. Among 22 justices who came and went after 1968, the typical tenure was approximately 10 years. Overton’s, at 24, was the longest.

Florida already requires judges to retire upon reaching 70 or soon after, and that is enough.

Remember who needs strong, independent courts. You do.

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Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Martin Dyckman: Aramis Ayala’s principled stance on death penalty not out of step with history

Make room in Florida’s small hall of heroes. If John B. Orr Jr., were alive, he would be welcoming Aramis Ayala.

When in 1956, while everyone else in Tallahassee was losing their heads over school segregation, Orr was the only legislator who dared to vote against a scheme to perpetuate it. Speaking on the House floor, which he didn’t have to do, he said segregation was morally wrong. He lost his seat but kept his honor.

Ayala, the state attorney for Orange and Osceola counties, is in the gun sights of Gov. Rick Scott, the attorney general the police, the Legislature, and most other prosecutors for announcing that she will not seek the death penalty in any case. As bad luck had it, the first to arrive on her watch was that of an accused cop-killer.

Not satisfied that Scott reassigned the case to another state attorney, the mobs are gathering, if only figuratively. They’re howling for Scott to suspend her. A Republican already has declared he will oppose her in 2020. He said would hire a former assistant prosecutor her predecessor had fired after he wrote on Facebook, following the Pulse massacre, that all Orlando nightclubs are “zoos, utter cesspools of debauchery.” It will be a nasty campaign.

Although Ayala’s courage is commendable, her judgment is questionable. The voters had no clue. As reasoned and right as it is, her stance on capital punishment should not have come as a postelection surprise.

The subject failed to surface in her expensive campaign last year against a Democratic incumbent and she had no opposition in November except for a write-in candidate who accomplished nothing but closing the primary—the actual election—to Republicans and independents. (Perhaps, the Legislature will finally get around to eliminating that glitch.)

The late Pinellas-Pasco Circuit Judge Susan Schaeffer made no secret of her dislike for the death penalty, but she recognized that the law was the law and was prepared to impose it in cases that seemed appropriate. She sentenced Oba Chandler, who was executed for the savage drowning of an Ohio woman and her two daughters. Harry Anstead, a retired chief justice of the Florida Supreme Court, who is one of Ayala’s defenders, opposed it also but concurred in upholding it in “dozens, if not hundreds” of cases, he told me. Governor LeRoy Collins tried to abolish the penalty but signed 29 death warrants, believing it to be his duty. However, he also commuted death sentences 10 times. Bob Graham was the last governor who did, three decades ago.

Perhaps Ayala was beguiled by a survey conducted by Public Policy Polling last year, which reflected that only 35 percent of the Florida public favored execution over other punishments and that more than half preferred life without parole, the existing alternative to execution. More than 3 in 4 said they would vote for candidates of their party despite disagreeing on that issue, and only 2 percent said it was the one that most mattered to them.

Those questions, though, were asked in the abstract—not in the context of a notorious case like that of Markeith Loyd, who’s accused of killing his ex-girlfriend and one of the officers who was hunting for him. As Orlando Sentinel columnist Scott Maxwell wrote in criticizing her, Ayala “rang a proverbial dinner bell for publicity-hungry politicians all over Florida.”

Maxwell opposes the death penalty, by the way, and laments that “some people can’t look beyond their emotional reactions to see capital punishment’s systemic flaws as well.”

Only emotion, not proof, supports capital punishment as a deterrent to crime. The process is markedly more expensive than life-sentencing. It is inconsistent, arbitrary, and dangerously prone to convict and sometimes execute the innocent. It does nothing well but help coerce guilty pleas and turn some defendants into state witnesses against others. That’s why the prosecutors love it so.

They practice the same discretion that opponents say Ayala abused. It is the most consequential reason for racial disparities and other inequities in the criminal justice system. If a prosecutor doesn’t seek the death penalty for a well-connected defendant, there is no appeal. If he consistently reduces the charges for whites but throws the book at minorities, there’s no appealing that either.

The co-defendant who cops out may not be as culpable as the ones he helps send to death row, just simply smarter.

There was a notably notorious example in the 1990 execution of Jesse Tafero, the last person to die in Florida’s electric chair. (His head caught fire, influencing the Legislature to opt for lethal injection). Walter Rhodes, a co-defendant, was allowed to plead guilty to second-degree murder, even though two law enforcement officers had been slain. Nothing but his testimony placed the gun in Tafero’s hand. According to an Innocence Project report, Rhodes recanted his testimony on three occasions before switching back to his original story.

One court said that there had been gunpowder residue on Rhodes’s hands but not on Tafero’s. Co-defendant Sonia Jacobs‘s conviction and death sentence were eventually overturned on grounds that would have spared Tafero, but too late.

Michael Radelet, a Florida death penalty expert who now teaches at the University of Colorado has a list of 14 other death-sentenced people whose co-defendants got life or less. Appeals removed most from death row, but two are still there.

Ayala is exactly right in assessing that the death penalty “is not in the best interests of this community or in the best interests of justice.” It’s not in the best interest of the families of victims, either, as it postpones, for decades or more, the closure they deserve.

“Punishment,” she said, “is most effective when it happens consistently and swiftly. Neither describes the death penalty in this state.”

Orange, the larger county in her circuit, has a noxious reputation for the politics of death. According to the Death Penalty Information Center, as of January 2013, it had more prisoners on death row than 99.2 percent of all U.S. counties and was among the 2 percent of counties responsible for more than half the executions. As elsewhere in Florida, however, death sentences have been declining there along with the crime rate and with the public’s growing perception that life without parole is a suitably harsh alternative.

The last to join death row from Orange was in 2012.

Ayala is not out of step with recent history and, I believe, destiny. It’s her harassers who are.

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Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Martin Dyckman: Before Donald Trump, there was Florida’s Claude Kirk

The home office pulled me out of a meeting at the Florida Capitol. Former Gov. Claude R. Kirk Jr., was on their line, insisting that I be told right now (!) how much he liked an antibusing provision that the Legislature was considering tacking on the budget. He liked it so much, he told the state editor, that he had signed an appropriations bill with the same rider although he would have preferred to veto the bill.

That didn’t sound right, so I checked the House Journal. Kirk had vetoed that bill. The editor was perplexed.

“The governor wouldn’t lie, would he?” he asked.

Like most people of his time, and still many today, the editor assumed that a high public official might very well stretch or shade the truth from time to time but would never stoop to a flat-out falsehood.

Yes, Kirk would, although he was known to hit the sauce in a way that could have clouded his memory.

Kirk didn’t lie with the almost hourly frequency of the Donald Trump White House, but the underlying cynical assumption was the same: The public would be more disposed to believe a governor than to believe his critics. They had believed his campaign promises and elected him, hadn’t they?

In 1967, his first year as Florida’s first Republican governor since Reconstruction, Kirk had proposed a budget in keeping with his primary campaign promise of “No new taxes.” It was seriously unbalanced, relied on accounting tricks and assumed that Florida voters would approve a bond issue, no sure thing.

When the Senate appropriations chairman, Reubin Askew, and other Democratic leaders tried to tell him that, Kirk was scornful. What mattered was not what they thought but what some ordinary citizen might think.

“‘Well, now, senator,'” Askew recalled Kirk saying, “‘you say it’s unbalanced. I say it isn’t. Who do you think that truck driver is going to believe, me or you?'”

Before there was Donald Trump, there was Claude Kirk.

It must be said that the man widely derided as Claudius Rex was a statesman compared to our so-called president. (In politics, everything is relative.) Among other things, Kirk did a better job of hiring good people for sensitive jobs and was strong for the environment, thanks to the influence of adviser Nathaniel P. Reed.

Like Trump, Kirk, the frontman for a successful Jacksonville-based insurance company, had never held any public office. Such inexperience always shows.

“He didn’t even know how many members there were in the legislature, he didn’t even know what Cabinet officers there were, he didn’t know anything about state government. And he didn’t bother to learn a whole hell of a lot about it while he was governor. He spent a lot of time enjoying being governor,” remarked Don Reed, the Republican leader in the House of Representatives at the time.

Kirk’s first budget exposed his ignorance as well as his irresponsibility. To call his bluff, the majority Democrats passed exactly what he had proposed. The Republicans, who knew that Kirk’s “budget” was no more than propaganda, tried unsuccessfully to block the bill. Kirk had to veto it.

Before a second year was out, the man who had vowed “No New Taxes!” signed what was then the largest tax increase in Florida history.

Like Trump, Kirk wasn’t shy about spending money for personal benefit. My colleague Don Pride, the St. Petersburg Times bureau chief, caught him charging a state agency, the Florida Development Commission — precursor to the present-day Enterprise Florida — some $1,600 for Kirk’s European honeymoon. Unlike Trump, Kirk reimbursed the public, blaming the charge on a clerical error.

But he never did repay the $90,000 that the same agency had paid to William Safire, a publicist who later became The New York Times’ resident conservative columnist, to promote Kirk for the vice-presidency in 1968.

Like Trump, Pride recalls, Kirk kept his financial affairs hidden. He relied on a secret slush fund to fund his travels and other personal expenses. When the Legislature cracked down on his “Governor’s Club,” he made the Republican Party pay for his leased private jets. Kirk thought nothing of flying to New Orleans just for lunch.

When Jack Eckerd, an opponent in the 1970 GOP primary, released five years of income tax returns and challenged Kirk to do the same, Kirk refused.

Like Trump, Kirk was a demagogue whenever there was a headline to be had. He staged a tense verbal confrontation at Jacksonville with the black activist H. Rap Brown. He suspended the entire Manatee County School board and its superintendent to keep them from complying with a federal-district court busing order. Kirk’s defiance evaporated when the judge fined him $10,000 a day.

And, like Trump, Kirk was frequently vexed with the press, “haranguing them at campaign stops and barring them from his airplane,” Pride recalls.

Unlike Trump, however, Kirk had a sense of humor and was engaging at times. But by 1970, the voters had seen through his antics and were keen to replace Kirk with a serious-minded, experienced legislator with a progressive platform and a reputation for speaking the truth. The worst that Kirk could say about him was that he was a “Momma’s boy.”

The new governor was Reubin Askew.

Let Florida’s past be the nation’s prologue.

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Martin Dyckman is a retired associate editor of the Tampa Bay Times. He is the author of “Reubin Askew and the Golden Age of Florida Politics,” published by the University Press of Florida. He lives in Asheville, North Carolina.

Martin Dyckman: Genetic testing bill gives bosses power they shouldn’t have

Some perfectly objective news stories virtually write their own editorials. Here is the top of a recent one from the PBS NewsHour:

“A little-noticed bill moving through Congress would allow companies to require employees to undergo genetic testing or risk paying a penalty of thousands of dollars, and would let employers see that genetic and other health information.

“Giving employers such power is now prohibited by legislation including the 2008 privacy and nondiscrimination law known as GINA. The new bill gets around that landmark law by stating explicitly that GINA and other protections do not apply when genetic tests are part of a ‘workplace wellness’ program.”

That summary overstates, but only slightly. Employers already are entitled to other types of personal health information from workers who take part voluntarily in workplace wellness programs. And they’re allowed to discount health insurance premiums to those who do. This means, of course, higher premiums for those who don’t. In other words, there can be a penalty for saying no.

If this legislation (H.R. 1313) passes, workers could be compelled to undergo genetic testing, the results to be shared with their bosses, or pay that penalty for refusing. Whether it would amount to “thousands of dollars,” as the story said, is unclear.

This development is as sinister, if not more so, than anything George Orwell imagined on the part of the fictional dictator Big Brother.

Let’s not forget that government, from the White House to the courthouse, is usually the biggest employer around.

The House Committee on Education and Workforce approved the bill on a 22-17 party-line vote. Freshman Rep. Francis Rooney, R-Naples, was one of the 22.

I asked his press office why Rooney would support something like that. Spokesman Chris Berardi replied in an email that wellness programs “are a popular way to lower health insurance premiums for workers” and that 61 percent of all employers offer them.

They are “completely voluntary, and will remain that way under H.R. 1313,” he said. He claimed that opponents “have no evidence” to argue that non-participants pay more for health insurance.” Those who oppose 1313, he said, “are spreading false information in a desperate attempt to deny employees the choice to participate in a voluntary program that can reduce health insurance costs and encourage healthy lifestyle choices.”

That defense strikes me as weak if not disingenuous. At the least, it begs three questions, the largest of which is whether people who now participate “voluntarily” will still want to do so once employers have the power to snoop into their DNA.

Another question is whether 1313 opponents are trying to deny anything but the power of employers to go where they shouldn’t go.

The third is how much more money would be charged to people who refuse to participate in wellness programs that would make their DNA as accessible to their employers as their home addresses and telephone numbers.

Now, what is wrong in principle with opening that door to your benevolent employer? Especially when the DNA can tell only that you have a higher risk of some disease, not that you will actually develop it?

Here’s why. If I’m considering several employees for a long-term investment in expensive training that would make any of them essential to the company’s future, knowing that one is at higher risk of, say, breast or ovarian cancer might just make a difference.

Or if I need to trim my workforce, it would be useful to know which employees have a higher statistical risk of expensive diseases — or of bearing children with such costly genetic disorders as cystic fibrosis.

Genetic information can be enormously useful in preventive medicine. GINA, the 2008 law, allows for that. It provides for limited exceptions.

But the misuse to which such data could be put is illustrated by what the law flatly prohibits. It is an unlawful practice “to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee” because of genetic information, or “to limit, segregate or classify the employees … in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee …”

H.R. 1313 does not expressly repeal that. But once employers have access to potentially compromising DNA information, it would be easy to use it in the prohibited ways. Who would know?

In a typical Washington example of calling black white and wrong right, H.R. 1313 is named the “Preserving Employee Wellness Programs Act.”

According to NPR, 1313 caters to the wish list of the American Benefits Council, a lobby representing Fortune 500 companies and other large employers. Its present chairperson, Allison R. Klausner, represents large employers such as IBM, United Healthcare and AT&T.

In congressional testimony, it claimed that lack of genetic information puts wellness programs “at risk” and deprives employees of benefits like “improved health and productivity.”

That’s nonsense. The law already allows employees to share genetic information with health professionals and board-certified counselors.

The word “productivity” is the likely clue to what that this employer lobby actually cares about.

The more that people hear about H.R. 1313, the more they should hate it and the less likely it would pass on its own merits, or lack of them. The strategy, apparently, is to fold it into the overall Ryan-Trump health care scheme.

That would be yet another reason, not that any more are needed, to trash the whole atrocious mess.

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Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Martin Dyckman: Memory of FSU professor’s enduring lesson on free speech, tolerance

An enduring lesson on what freedom of speech should mean to a college campus was taught more than a half-century ago by one of my favorite professors at Florida State University, Lewis M. Killian.

I hadn’t taken his class or even met him at the time but something I had written was a hot discussion topic that day.

It was a letter in the student newspaper, the Florida Flambeau, mocking the Kappa Alpha fraternity for wearing Confederate uniforms and waving the Rebel flag during homecoming festivities. As I recall, there was a reference to the hind end of General Lee’s horse. I was a freshman, and the hyperbole was sophomoric.

It was a fortuitous time to have taken ill and be in the campus infirmary. Some young men, I was told, were looking for me.

“He didn’t have a right to write that,’ exclaimed a student in one of Killian’s sociology classes.

The professor exploded.

“You can disagree with it all you like,” he said, “but don’t ever say in MY class that someone doesn’t have a right to write something.”

This is the place to mention that Lew Killian had grown up in Macon, Georgia, with an accent thick as clabber. In his memoir, he called himself a Cracker.

And he was the faculty adviser to the Kappa Alpha chapter at FSU.

Outgrowing his background, he had become emblematic of the conscience of a new South.

Knowing both worlds, he taught his most popular class, race relations, with strict objectivity and sensitivity to the irascible emotions of the time. Because of his support for students engaged in the lunch counter sit-ins of December 1960 the Tallahassee Chamber of Commerce wanted him fired. So did the more racist members of the Board of Control, which had the power to do it. Nothing doing, said FSU President Robert M. Strozier, whose fatal heart attack in 1961 was widely blamed on the segregationist harassment he had withstood.

There were segregationists among faculty and students too. What people like Killian and Dyckman said about race was as unwelcome to them as “The Bell Curve” author Charles Murray‘s views are to the students—and, perhaps non-students—who rioted against him at Middlebury College recently.

But at least the segs let us speak and write. The Middlebury rioters owe an apology not just to Murray, but to the conservative students who wanted to hear him speak. They owe one also to the students and faculty who wanted to debate Murray responsibly and rationally.

They also owe some time in jail, in my opinion.

Nothing is more dangerous to a democracy than the suppression of speech. It’s how Hitler‘s brownshirt thugs paved the way for his dictatorship. It’s inexcusable whether it comes from the right or the left.

Nothing could be more opposite the primary purpose to which colleges and universities should be dedicated.

That is to teach critical thinking skills to the people who soon enough will be in charge of our economy, our government and our future, whether as business leaders, teachers, politicians or simply voters. Critical thinking is essential not only to all academic disciplines; it is vital to everything.

But you can’t inspire critical thinking in people who are willing to hear only what they want to hear. You can’t teach it to people who would try to get a professor fired rather than personally challenge him or her to rationalize a provocative expression. You can’t teach it to people who demand a “trigger warning” lest they hear something that might offend their fragile sensibilities.

Having spent a little time around Middlebury while my wife was studying for three summers there, I was astonished that something like the Charles Murray riot could happen on that campus.

But it isn’t so surprising in the light of some disturbing data reported in a Washington Post column the following week.

Since 1970, an enterprise called the General Social Survey has been polling public attitudes toward allowing such controversial people as racists, atheists, and communists to speak in their communities. One question, almost presciently describing the case against Murray, gave the example of “a person who believes that Blacks are genetically inferior.”

In 1976, about 84 percent of respondents 18 to 25 with some college education said yes, that person should be allowed to speak. Older and non-college people were somewhat less willing.

But by 2014, support among all groups had dropped to 50 percent, with college-educated youths posting by far the largest decline. They were also less willing than before to hear a communist speak.

It may seem strange to be talking about their intolerance when it is intolerance itself that the young people think they are defending against.

But no person has the right to decide for others what “truth” they will hear. The remark attributed to Voltaire applies: “I disapprove of what you say, but I will defend to the death your right to say it.”

Near the end of a long life in which he had often been vilified, Thomas Jefferson wrote this: “We are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.”

It’s by those lights that Lew Killian lived and taught. Bless his memory.

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Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Martin Dyckman: What have we become in the time of Trump?

A young woman who works at a store that we frequent told of a recent experience that haunts my mind, as I hope it will yours.

She and her husband were homebound from a European vacation. As the aircraft waited on the tarmac at Amsterdam’s airport, an announcement told three named passengers to identify themselves to a flight attendant.

Every name, she noted, sounded Middle Eastern.

Each was asked to produce a passport, even though all the passengers had had theirs inspected at least twice before boarding.

A young man near her was one of those singled out. As he stood to retrieve his bag from the overhead bin, she saw that his hands were trembling. She wondered whether he would even be able to handle the bag.

A flight attendant checked the passport and left him alone.

He took his seat, still shaking.

“Are you all right?” she asked him.

“I am an American,” he said. “I was born here.”

So that is what we have come to in the time of Trump.

Concurrently, wire services reported that Khizr Khan, the Gold Star parent who denounced Donald Trump at the Republican convention and challenged him to read the U.S. Constitution, had canceled a speaking engagement in Canada after being told, or so it was said, that “his travel privileges are being reviewed.”

His son, Captain Humayun Khan, was protecting his troops in Iraq when he was killed by a suicide bomber.

“This turn of events is not just of deep concern to me but to all my fellow Americans who cherish our freedom to travel abroad. I have not been given any reason as to why,” Kahn said. The statement did not say who told him about it.

The cancellation was announced on the same day as Trump signed a new travel ban targeting Muslims abroad.

The speech Khan had been scheduled to give in Toronto was on the subject of “tolerance, understanding, unity and the rule of law.”

Khan, a native of Pakistan, has been an American citizen for more than 30 years. There is no legal ground for the government to restrict travel of a citizen who is not accused of crime.

A statement from an unnamed Customs and Border Patrol official, quoted by POLITICO, declined to comment on the specific report but asserted that the agency doesn’t contact travelers in advance of their foreign trips. It hinted, however, that questions might have been raised about Kahn having or having applied for trusted traveler status, which speeds up airport security checks.

We need to know more about this. Was it only a rumor that reached Kahn? Was it a misunderstanding? Or something more sinister?

In any event, it was reasonable for Kahn to be concerned in the time of Trump.

Now imagine, if you will, the terror of that young man aboard the airplane multiplied millions of times by Americans with dark skins or foreign-sounding names now that ICE — Immigration and Customs Enforcement — agents are on a rampage.

It’s about American citizens, not just immigrants who are unauthorized. It’s no longer about targeting only those who commit serious crimes — which they do less frequently than legal residents. It’s about expelling everyone that ICE and its allies in some police agencies can get their hands on. Even Dreamers, those brought here as children, whom a humane president had promised to protect, are being swept up.

There are an estimated 11 million of these vulnerable people, by the way and they are your neighbors. They could be the people who built your house, picked the fruit for your breakfast, and tidied up the hotel room where you last stayed.

Think of our country without them. It will be a different country if Trump has his way, and it won’t be a better one.

The statistics are sobering.

According to a draft paper published in November by the National Bureau of Economic Research, unauthorized immigrants account for about 3 percent of our gross domestic product (GDP). Take that away, and it spells recession.

They represent 18 percent of the workforce in agriculture, 13 percent of construction employment, and 10 percent of the leisure and hospitality sector. They’re particularly significant to the economies of five states: California, Texas, New York, Illinois and, yes, Florida.

The report’s authors, professors at Queens College of the City University of New York, calculated that if their presence were legalized, their contribution to GDP would increase, significantly, to 3.6 percent. It would no longer be easy for unscrupulous employers to exploit them.

“Documented foreign-born workers,” they added, “are about 25 percent more productive … with the same levels of education and experience,” as the undocumented.

Legal workers would not replace most of them. A 2013 North Carolina study noted that “natives prefer almost any labor market outcome … to carrying out menial harvest and planting labor.”

Here, from The New York Times, are some other pertinent facts:

About 60 percent of the 11-million have been here 10 years or more. Many are homeowners. A third of those 15 or older live with at least one child born here, who has citizenship by birth. (Where will the foster care be for so many Trump orphans?) The proportion of the estimated 300,000 with felony records is half the rate of felons in the overall population. Illegal border crossings are declining; a growing number of unauthorized immigrants simply overstayed their visas.

The 11 million are here, for the most part, because America has needed their labor and the taxes they pay. The entire nation collectively turned a willfully blind eye to the underlying illegality, just as it did during Prohibition. Every president before now has tried to reform the situation in a humane way. Only now is one catering to a minority — and they are a minority — who vote their hatreds instead of the religions they profess.

A young citizen trembling on a plane. A prominent naturalized citizen who fears to travel. Parents and children terrified of separation. Business booming for private prisons.

What kind of country have we become?

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Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Florida doesn’t need an elected Secretary of State, or Agriculture Commissioner

It would tax the imagination to come up with anything that Florida needs less than to elect a secretary of state once again. Why would the Legislature even consider that?

Sen. Aaron Bean, the sponsor, explained it the other day. As reported by FloridaPolitics.com, the Fernandina Beach Republican told the Senate ethics committee that in the main he wants a fifth position on the Cabinet to avoid tie votes that require the governor to be on the prevailing side or the motion fails.

Actually, he and nearly everyone else are incorrect when they refer to that group of four as “the Cabinet.” Article IV Section 4 of the Constitution provides for the Cabinet to consist of an attorney general, a chief financial officer, and a commissioner of agriculture. The governor is NOT — I repeat, NOT — a member of the Cabinet.

And because they are elected, it’s not “his” Cabinet even though the members too often vote as if it were. They oversee 12 agencies in their collective role as — to put it accurately — “the governor and Cabinet.”

To the extent that the tie vote issue is a problem, there’s a simpler and less expensive way to deal with it than the creation of yet another statewide pooh-bah with yet another six-figure salary.

That’s to get rid of the elected agriculture commissioner. Let the governor appoint the position, as does now with the secretary of state. Or have the governor and the remaining two Cabinet members jointly select someone in the same manner as the head of the office of financial regulation.

But avoiding a tie vote situation strikes me as the lamest possible pretext to elect the secretary, which Florida last did in 1998.

The more important issue is how best to oversee elections, which is the function of the office that the public cares most about. The record-keeping, the corporations’ division, the arts, library and archives are less about policy than professional management. You don’t need to elect anyone for those.

But electing a secretary of state doesn’t guarantee that the duty will be carried out in a bipartisan, nonpolitical and professional manner. The present secretary, Ken Detzner, has been accused of doing what the governor wants to discourage rather than encourage voting. The last elected secretary, Katherine Harris, is best remembered for the infamous 2000 campaign in which she was first a co-chair of George W. Bush’s campaign and then made critical decisions in his favor.

Harris’s predecessor, Sandra Mortham, spoke at the committee hearing and referred to the dicey position of governor-appointed secretaries as “very, very, very difficult” for them. She also noted that local elected supervisors of election would be better off with a popularly elected state leader than with one named by the governor.

Those are better points, to be sure, than the tie vote issue. Harris’ tenure, though, was hardly a shining example of political independence.

Though nearly half the states have elected sectaries to state to manage elections, nine have appointed boards or commissions that are bipartisan, at least in theory. One of them is in North Carolina, where despite fierce efforts by a Republican and legislature to suppress voting, the GOP-dominated board acted respectably last year. Florida should consider that method of governance.

“I think there is no magic bullet,” says Ion Sancho, Leon County’s recently retired election supervisor, who is a nationally recognized figure in the field. “It doesn’t matter a darn bit if you elect the person if they have to follow the rigged election laws passed by the Florida Legislature.

He sees no point, however, in enlarging the elected Cabinet.

There used to be six Cabinet members, plus the governor, each with their own departments, in charge of an array of agencies they governed collectively. That system was created in the aftermath of post-Civil War Reconstruction to deliberately keep the governors weak. Trouble was, with everyone supposedly watching the store no one actually did. In modern times, two of Florida’s best governors, LeRoy Collins and Reubin Askew, tried unsuccessfully to be rid of the system.

Twenty years ago, the Constitution Revision Commission set out to trim the Cabinet to the only two offices that truly need to be independently elected: the attorney general and the chief financial officer. But agricultural lobbies threatened to defeat the entire reform at the polls if it didn’t retain the agriculture commissioner. Finding themselves with four voting officers instead of the intended three, the Commission came up with the curious tie-breaking rule. Eliminating the elected agriculture commissioner would dispose of that.

Agriculture is still one of the pillars of Florida’s economy, but it’s difficult to see why it needs its own surrogate governor any more than tourism or construction do. Rick Scott’s well-advertised faults as governor don’t mean that his successor shouldn’t be trusted with agriculture to the same extent as education, which once had its own elected Cabinet member too.

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Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

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