Martin Dyckman – Page 7 – Florida Politics

Martin Dyckman

Martin Dyckman: Lingering questions should end death penalty in Florida

Legislation that the Florida House of Representatives approved last week cures what the U.S. Supreme Court specifically found wrong with Florida’s death penalty, but Rick Scott shouldn’t plan on signing any more death warrants soon, if ever.

Six large questions linger.

Will the Supreme Court uphold it?

The court did not say, in “Hurst v. Florida,” whether a jury could recommend death by less than a unanimous vote. The House bill would allow it with only 10 votes out of 12.

What will it cost?

Probably a lot less than Florida has been spending, provided there are fewer death sentences. No one knows.

What happens to the 389 people on death row?

That’s for the state Supreme Court to say. Washington passed the buck to Tallahassee to decide whether abridging Timothy Hurst‘s right to trial by jury was, as the state contends, “harmless error.” If the Florida court finds that his and other sentences must be overturned, it’s no sure thing that the new trial process could be applied retroactively.

Is it what the voters want?

That’s the big question: The answer seems to be no.

Then why do it?

Because legislators care a lot more about the death penalty than the public does.

Unless a new poll is far-out wrong, there has been an upheaval in public opinion on the issue of the death penalty for murder.

In a survey of 879 Florida voters conducted Feb. 3-4, only 35 percent favored execution over three alternatives.

More than half preferred life without parole, especially if the killers were made to work in prison and pay restitution to victims’ families. There was even some support — 9 percent — for parole after 40 years, which Florida does not allow.

Significantly, more than three of every four voters said they would still vote for a candidate of their party with whom they agreed on other issues even if they differed over the death penalty.

Republicans were more in favor of executions than Democrats or independents were, but still by less than a majority.

Only 2 percent of all voters said the death penalty is the issue that matters most to them.

These findings are in a survey by Public Policy Polling, of Charlotte, North Carolina. It was commissioned by the Florida Center for Capital Representation at the Florida International University School of Law.

The FIU center organized the appeal on behalf of Timothy Hurst, a killer from Pensacola, that evoked the 8-1 decision holding Florida’s trial process unconstitutional. Florida has had the judge rather than the jury decide whether aggravating factors call for death instead of a life sentence.

During oral argument, Justice Sonia Sotomayor asked in effect whether the court should also require a unanimous jury recommendation for death. But the majority opinion, which she wrote, didn’t address that issue. Only Alabama and Delaware (whose death penalty is in disuse) allow 10-2 death recommendations

Nearly half the 296 death sentence appeals decided by the Florida Supreme Court from 2000 through 2012 involved jury recommendations of 9-3, 8-4, or 7-5. (Hurst’s also was 7-5) Moreover, a jury’s vote for life would now be binding on the judge, who could still overrule a death recommendation.

With Justice Antonin Scalia’s seat vacant on a court where two other justices are on record against the death penalty under all circumstances, Florida will be challenging the odds if the final bill allows 10-2 death recommendations. The version awaiting debate in the Senate requires unanimity: the choice of 73 percent of the respondents in that poll. The Senate would be prudent to insist on it.

It’s regrettable that Florida isn’t taking the “Hurst” decision as an opportunity to join the 19 states without the death penalty. Six — Connecticut, Illinois, Maryland, Nebraska, New Jersey and New York — have repealed it just since 2007.

Most legislators, I suspect, realize that the death penalty costs much more to carry out than imprisonment for life, that it’s still imposed arbitrarily, that it’s prone to executing the innocent, that it has no deterrent value, and that it isn’t necessary to protect society. But they still vote for it.

When the Supreme Court overturned capital punishment nationwide in 1972, there were 91 people awaiting execution in Florida. They were resentenced to life without parole under a law the Legislature had passed earlier that year in anticipation of such a ruling. Subsequently, three were completely exonerated and released from prison. There have been 22 more death row exonerations since then, including a prisoner who died of cancer before DNA testing established his innocence.

The 1972 resentencing law is still on the books and could be used to spare Florida the enormous expense and uncertain legal prospects of trying to hold new sentencing hearings for nearly 400 people. It would apply even if the Legislature failed to rewrite what the Supreme Court found unconstitutional.

But the lawmakers are under heavy pressure from prosecutors, for whom the death penalty is an effective tool to extract plea bargains and turn co-defendants into state witnesses.

That function is one of the reasons why the death penalty is still as random as being struck by lightning, as Justice Potter Stewart put it in 1972 and Justice Stephen Breyer reiterated last year.

And, yes, there’s a caveat to those poll numbers that seem to say the public doesn’t care about what legislators do with the death penalty. The questions posed to those 879 Florida voters weren’t loaded. A campaign attack ad would be. Remember Willie Horton?

At least there were 20 House members — all Democrats — willing to take that risk this time. When the Legislature re-enacted capital punishment in 1972, only three of the 160 legislators dared to vote no.

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Martin Dyckman is a retired associate editor of the newspaper formerly known as the St. Petersburg Times. He lives in suburban Asheville, North Carolina.

Martin Dyckman: Refusing to approve Obama nominee could hurt the Party of No in November

Mitch McConnell couldn’t even wait until Justice Antonin Scalia‘s corpse was cold before exploiting his death for partisan politics.

The oleaginous majority leader means to keep the seat empty, no matter the likelihood of that paralyzing the sharply divided Supreme Court for a year, on the chance that voters might elect a Republican president to appoint Scalia’s replacement.

The people, he said, “should have a voice in the selection of their next Supreme Court justice.”

As Elizabeth Warren promptly reminded him, voters had that choice when they elected President Barack Obama and re-elected him four years ago with a winning margin of nearly 5 million votes.

Most Americans understand that short of making or preventing war, the appointment of a Supreme Court justice has the longest-lasting consequences of anything a president does.

They have trusted Obama with that responsibility.


But the Party of No has never forgiven him for winning and has treated him with degrees of obstructionism and contempt that were never practiced by Democratic Congresses against Ronald Reagan or George W. Bush.

The scheme of keeping Scalia’s seat empty for a year is consistent with the Party of No having shut down the executive branch to try win with extortion what it couldn’t win at the ballot box — the repeal of Obamacare.

Belying the current Republican reinvention of history, there has never been a policy of deliberately perpetuating Supreme Court vacancies on the rare occasions when they occur during the last year of a president’s term. Quite the contrary. Some examples:

There were only 10 months left in Reagan’s when the Senate unanimously confirmed Justice Anthony Kennedy, as Reagan urged it to do.

John Adams had only four months left in his term when he appointed John Marshall to be chief justice in December 1800.  That was easily the most consequential appointment ever. Thomas Jefferson, who had defeated Adams, could do nothing but gnash his teeth over the Federalists’ parting shot.

Herbert Hoover was in the last year of his term, and facing all-but-certain defeat in the 1932 election, when he successfully nominated Benjamin Cardozo.

When President Lyndon Johnson failed to promote Justice Abe Fortas to chief justice, it wasn’t because of timing but because Fortas had woeful ethical problems.

There is nothing in the Constitution to require — or authorize — Congress to wait for an intervening election before carrying out any duty other than counting electoral votes.

The 27th amendment merely postpones the effective date of any congressional salary increase until after the ensuing election for the House.

That was James Madison‘s idea, 202 years before it was finally ratified, on the premise that lawmakers should think twice about giving themselves a pay raise of which the voters might disapprove.

Today, there are Republican senators up for re-election who might want to rethink the McConnell scheme to hold the Supreme Court hostage for the next election. Five of the 17 seats the party is defending are in states, including Florida, which Obama carried four years ago.

Obama will fulfill his constitutional duty to nominate a justice even if the Republican senators insist on defaulting on their duty to advise and consent.

The voters will then have an opportunity to judge the senators.

Two of the people said to be on Obama’s shortlist are circuit court of appeals judges whom the Senate confirmed unanimously two and three years ago. One would be the first Indian-American justice. The other is from Iowa and was enthusiastically supported by Iowa Sen. Charles Grassley, chairman of the judiciary committee, who is up for re-election this year.

Is Grassley really prepared to stonewall her? Maybe not. He’s now saying he might hold hearings on a nominee although he still thinks the next president should make the appointment.

At least the Party of No is making it vividly clear to voters what’s at stake for the Supreme Court — and for the entire concept of equal justice under law — this year. For the first time since Lyndon Johnson’s presidency, a majority of the court might be Democratic appointees.

More to the important point, will the new justice be an ideologue like Scalia, or disposed to compromise like Sandra Day O’Connor and David Souter, both of whom were Republicans?

They were the last justices who had ever held political office — O’Connor as a legislator and Souter as an attorney general — and the court was richer for that experience.

The Supreme Court did its greatest work — Brown v. Board of Education­­­ comes to mind — when it valued consensus. It has been at its worst — think Citizens Unitedwhen an ideological majority insisted on scoring points that weren’t necessary to resolving the case.

The American people want a new justice who will be judicious in every sense of the word. If Obama nominates such a person and the Republicans refuse to confirm him or her, it will be as good a reason as any for voters to reject the Party of No on Nov. 8.


Martin Dyckman is a retired associate editor of the newspaper formerly known as the St. Petersburg Times. He lives in suburban Asheville, North Carolina.

Martin Dyckman: Justice John Roberts has hurt minorities, consumers, democracy

His reputation as a harsh critic of the Voting Rights Act and an advocate for corporations preceded John Roberts to his confirmation hearing before the Senate Judiciary Committee in September 2005. As chief justice, he said, he would be like a baseball umpire impartially calling balls and strikes.

“Umpires don’t make the rules. They apply them,” he testified. ” … I come before the committee with no agenda. I have no platform.”

It turned out, though, that this “umpire” was wearing his old team colors under his new black robe.

His decisions to gut the Voting Rights Act, immunize big business from class action lawsuits and flood our elections with unlimited corporate contributions have brought grief to the public interest and joy to the plutocracy.

Roberts’ enmity to the Voting Rights Act is told in depressing detail in one of the most important books published recently: Ari Berman‘s “Give Us the Ballot: The Modern Struggle for Voting Rights in America.” A condensed version is available on the POLITICO website.

The National Archives yielded extensive documentation of Roberts’ 10- year vendetta against the Voting Rights Act while a young law clerk to conservative Justice William Rehnquist, as a legal aide to Ronald Reagan’s attorney general William French Smith and as an assistant in the Office of White House Counsel.

He tried unsuccessfully to weaken it where it was strong and defeat bipartisan efforts to strengthen it where it was weak.

He finally triumphed three years ago in the case of Shelby County v. Holder, in which he trashed the formula (Section 4) that determined what states, or parts of states including Florida, had to get Justice Department pre-clearance for law or policy changes affecting voting rights.

That left the Justice Department with only after-the-fact recourse to courts to combat a relentless, nationwide attack against the voting rights that most people thought had been secured with the blood shed at Selma, Ala., in 1965.

By pretending that the law had eliminated obstacles to minority voters, Roberts made the law a victim of its own success. In reality, the Justice Department had used Section 4 to block thousands of sly and cynical attempts to undermine minority voting. With Section 4 out of the way, formerly covered jurisdictions like North Carolina swiftly enacted harsh new laws transparently designed to make it harder for blacks to vote. The long, tedious litigation against these laws will end at a court led by same justice who killed pre-clearance.

As an attorney in private practice, Roberts represented companies that meant to use the federal arbitration statute to prevent customers from suing them in court and prevent them from joining class-action lawsuits.

Roberts lost that case, but he had become chief justice when the court agreed to hear yet another, challenging a California court ruling that it was “unconscionable” for AT&T to muscle consumers into waiving their rights. The corporations won their appeal along with a subsequent decision eliminating the antitrust provisions of the Sherman Act as a barrier to that form of corporate arrogance.

“The antitrust laws do not guarantee an affordable procedural path to the vindication of every claim,” Justice Antonin Scalia wrote in a majority opinion that Roberts supported.

The key word there was “affordable.” As every justice knew — and as the dissenters pointed out sharply — the deck is stacked against consumers when it’s the companies that choose the arbitrators, and class action lawsuits are the only effective check on corporate misconduct.

If you think a company has cheated you out of, say, $30, any lawyer would laugh you out of the office. But a million or so people with the same complaint make a case worth taking.

Over the past ten years, my wife and I have received $201 as our shares of seven class action settlements — the smallest for $3.73, the largest for $63.90. Most were against banks that had milked extra charges from credit cards. Nearly everyone with a credit card has probably gotten money.

But that’s history. Every card now comes with conditions requiring the customer to submit claims to arbitration and forego class action lawsuits. You can refuse those conditions if you can live without credit cards.

If you go overseas, expect to be stiffed on exchange rates. There’s nothing to stop the banks now.

In a rare defeat for Roberts that exposed the depths of his cynicism, the court voted 6-3 last month against a company that had tried to quash a class action suit involving unwanted mass text messages by offering a small sum of money to only the lead plaintiff. Had he accepted it, the case would have been dead, leaving thousands of others with nothing and the company with a cheap way out. To Roberts, though, the offer was enough.

No decision since the 1857 Dred Scott case has been as harmful as Citizens United, which put our democracy on the auction block. As it came to the court, the question was only whether a film attacking Hillary Clinton represented a prohibited expenditure. Roberts recast the case as an all-out attack on the campaign finance law. The self-styled umpire was calling the plays.

The point of these examples is that nothing presidents do matters more than their appointments to the Supreme Court.

Either of the two Democratic candidates for president would try to repair the enormous damage that Roberts and his allies have done. Would any of the Republicans? Not likely.


Martin Dyckman is a retired associate editor of the newspaper formerly known as the St. Petersburg Times. He lives in suburban Asheville, North Carolina.

Martin Dyckman: A vote for Bernie Sanders is a vote for idealism, courage, candor

An important member of Congress had a simple prescription for what ails health care in America: “Medicare for everyone.”

“Everyone is in Medicare now,” he said. “Some of us get it. Others pay.”

The year was 1991, and had it been Bernie Sanders saying that, nobody would have paid attention. He was a House freshman then.

The proponent was Sam Gibbons, the late, great congressman from Tampa, who at the time was ranking Democrat on the House Ways and Means Committee. He fit no real or imagined image of a socialist.

He didn’t shrink from bold ideas. Though in general a moderate Democrat, Gibbons was a free-trade militant. He favored a value-added tax to replace the income tax for all but the very rich.

But for the Republican takeover of Congress in 1994, on the heels of the failure of Bill Clinton‘s health care reform, Gibbons might have been able to place the U.S. alongside 32 other industrial democracies that regard health care as everyone’s right.

They also spend much less on it. In all but seven, people live longer than in the U.S.

What Gibbons said then is, sad to say, still true:

“The piecemeal system we now have is a disgrace. It costs too much. Too many people receive no benefits at all, and it is a paperwork jungle.”

As Sanders does now, Gibbons acknowledged the obvious: Medicare for everyone would require more taxes from nearly everyone. But nearly everyone would pay less overall with the private insurance industry and its grotesque 20 percent overhead no longer in the equation. Traditional Medicare’s administrative cost is just 1 percent.

I have yet to meet a doctor, by the way, who doesn’t think Gibbons was right. Some 20,000 doctors belong to Physicians for a National Health Program, whose website — — makes the case why Sanders is right.

The campaign brings to mind Henry Clay‘s famous remark in 1839 that “I would rather be right than president,” and an opponent’s retort, “Fortunately for us, you will be neither.”

Sanders has not said anything quite like Clay, but there are other people saying he is too “right” to be president.

Tampa Mayor Bob Buckhorn, a Hillary Clinton supporter, is one of them.

“It’s OK to be right, but it’s more important to win. And if you don’t win, you can’t govern,” he told the Tampa Bay Times.

To hear him, Alex Sink, and other Hillary Clinton advocates is to realize that the politics of fear is polluting not just the Republican primaries.

With the Republicans, it’s the fear of anything foreign, different, or decent. That the party of Teddy Roosevelt is now hellbent to strip health insurance from millions of people by repealing President Barack Obama‘s achievement is the sorrow of a lifetime.

Among the Democrats, the politics of fear is the notion that a vote for Sanders would ensure national disaster and international disgrace — Trump or Cruz in the Oval Office.

It’s not just Clinton’s clique saying that.

 “I adore Bernie Sanders,” writes Dana Milbank, a Washington Post columnist who considers Clinton a “dreary candidate” whose positions are “cautious and uninspiring,” whose “reflexive secrecy causes a whiff of scandal to follow her everywhere,” and who seems “calculating and phony.”

But he says the Democrats would be “insane” to nominate Sanders. He discounts the polls showing Sanders better than Clinton against Trump because the Republicans have yet to begin to “disembowel” Sanders as a socialist who extols higher taxes.

Paul Krugman, The New York Times’s superb economic columnist, worries that Trump would win should Michael Bloomberg run as an independent. Moreover, he thinks Sanders’ health care platform is wildly impractical in the face of the prospect that Republicans will continue to control one house of Congress, if not both.

“Sorry, but there’s nothing noble about seeing your values defeated because you preferred happy dreams to hard thinking about means and ends,” says Krugman. “Don’t let idealism veer into destructive self-indulgence.”

He has a point, but I think it’s premature. For those voting in the early Democratic primaries, on or before March 15, there’s still time to vote with hearts as well as heads.

(Decent Republicans don’t have the luxury of time. The racism and fascism of the leading candidates need to be rejected now. Later may be too late.)

At this stage, a vote for Sanders is to send a message that universal health care is what the public wants and deserves. It’s a vote for the idealism, courage, and candor that are so rare in politics and that most voters say they want and respect. It sends a message to the establishment about what’s best in America as contrasted with the hatred that is corrupting and disgracing the other party.

More to the point, the sure way to never have true national health care is to avoid voting for it at every opportunity.

Whether he wins or loses the nomination, Sanders is sending that message to the nation and the world. It’s an urgent message. He has my vote in the primary.

Should Clinton be the nominee, so be it; I would vote for her with more enthusiasm than she deserves because none of the Republicans appears to be better and some are so much worse that the Oval Office would be better left empty.

We can cross that bridge later.

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Martin Dyckman is a retired associate editor of the newspaper formerly known as the St. Petersburg Times. He lives in suburban Asheville, North Carolina.

Martin Dyckman: Is Ted Cruz eligible to be president? The question needs to be resolved

Had a modern Rip Van Winkle, who happened to be a Republican, fallen asleep 20 years ago, he might think that he had awakened now in hell.

His choice in the 1996 party primaries for president would have been among a 10-person field including Bob Dole, the senator and eventual nominee; Sen. Richard Lugar of Indiana, Gov. Pete Wilson of California, and former Gov. Lamar Alexander of Tennessee, all of them firmly mainstream.

There were rivals to the right, but after one of those — Pat Buchanan — came in second in the Iowa caucuses and first in New Hampshire, the party quickly closed ranks around Dole.

He would have made a decent president.

Waking today, Mr. Van Winkle would behold the nightmarish sight of Donald Trump, a pompous ass, racist demagogue and remorseless liar, duking it out with a senator, Ted Cruz, who is so disliked and distrusted within his own party that no GOP governor or colleague will endorse him.

Neither would make anything other than a terrible president, but the party’s voters, pitchforks in hand, don’t seem to care about that and lack much affection for the one or two rivals who deserve respect.

Before this gets to a point of no return, America needs a conclusive answer to the biggest question of the campaign: Is Cruz, born in Canada, even eligible to be president of the United States?

Most people with an opinion on the matter say yes, but it’s not open and shut. There are doubts and dissents among such experts as Lawrence Tribe, the Harvard law professor who taught both Cruz and Barack Obama.

The undisputed facts are these:

  • The U.S. Constitution says that “no person except a natural-born citizen” is eligible.
  • Cruz was born in Canada to an American-born mother and a Cuban father who was naturalized in the U.S. some years later.
  • A law in effect then and now says that a child born to an American citizen abroad is naturalized at birth without the long wait and bureaucratic obstacles that other immigrants endure.

One focus of dispute is on whether that law changed what the Constitution means by “natural born citizen.”

British common law, which controlled in the new United States until explicitly repealed or amended, considered certain children born abroad to be British subjects. The first Congress wrote a similar law, though it eventually lapsed.

The fundamental question, though, is whether Congress has ever had the power to expand upon the Constitution.

In email correspondence with The Guardian, a British newspaper, Tribe remarked on an irony: “The kind of judge Cruz says he admires and would appoint to the Supreme Court” would be a so-called originalist — like some members of the present court — who believes in literally and narrowly applying the Constitution’s earliest meaning.

“Even having two U.S. parents wouldn’t suffice for a genuine originalist,” Tribe said. “And having just an American mother, as Cruz did, would clearly have been insufficient at a time that made patrilineal descent decisive.”

Tribe noted an irony: “The kind of judge that I admire and Cruz abhors — a ‘living constitutionalist’ who believes that the constitution’s meaning evolves with the needs of the time” — would surely rule him eligible.

Two other Harvard professors have written in the Harvard Law Review that Cruz is eligible. A University of Delaware law professor wrote in The Washington Post that “Congress simply does not have the power to convert someone born outside the United States into a natural-born citizen.”

But, of course, no one’s opinion really matters other than that of a majority of justices of the U.S. Supreme Court.

In Marbury v. Madison, the great 1803 case in which the court first asserted the power to declare acts of Congress unconstitutional, it held that Congress lacked authority to expand the court’s constitutional power in one respect.

On the other hand, the court could refuse to rule and pass the buck to Congress as a political question. It’s Congress that counts the electoral votes and formally certifies a president’s election. But there is nothing in the Constitution that addresses whether it can second-guess his or her qualifications.

For the court to duck the issue, or to postpone it until after the election, could create a grave political crisis in the event of a Cruz victory. More immediately, it would complicate, enormously, the decisions that voters will have to make. No one wants to waste a vote on a candidate who might be barred, so it was shrewd of Trump to raise the question.

It has been raised before under different circumstances. Arizona was a territory, not a state, when Barry Goldwater was born there, but it was clearly under U.S. jurisdiction. So was the Panama Canal Zone when John McCain was born there to U.S. parents.

George Romney, in 1968, was most comparable to Cruz; he was born in Mexico of U.S. citizen parents. Nobody seriously challenged him; he wasn’t disliked as Cruz is, and he faded early as a rival to Richard Nixon.

Cruz isn’t fading. But no court could be expected to touch the issue without a lawsuit from one of his rivals or a state’s decision to bar him from its ballot on grounds of ineligibility.

There’s still time — but not much — for the Florida Legislature to do that.

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Martin Dyckman is a retired associate editor of the newspaper formerly known as the St. Petersburg Times. He lives near Asheville, North Carolina.

Martin Dyckman: Death penalty riddled with too many inconsistencies

Felicia Brown‘s body was left at a Palm Beach County waste management site. The decomposing corpses of her two children, ages 6 and 10, were found inside luggage floating in a canal.

Clem Beauchamp, her ex-boyfriend, will spend the rest of his life in prison for killing them. He pleaded guilty this month in a deal to avoid the death penalty. Prosecutors said the victims’ relatives agreed.

Reading about that at his home in Tallahassee, Harry Anstead, a retired justice of the Florida Supreme Court, remembered the death of another child with a different outcome.

He had dissented from the court’s 4-3 decision in March 2001 to approve the execution of Jason Stephens for the death of a 3-year-old boy he had taken hostage in a Jacksonville home invasion robbery. The child’s body was found in a closed car about seven hours later.

Medical testimony was inconclusive as to whether he had died of asphyxiation or of hyperthermia. The foreman told the judge that the jury didn’t think Stevens meant to kill him, and its vote to recommend the death penalty was 9-3.

As Anstead saw it, Stephens’ crime was not among “‘the worst of the worst’ for which the death penalty is reserved.”

Stephens remains on death row. He won’t be the only person wondering why he should be executed for the negligent death of one child if Beauchamp doesn’t deserve it for the deliberate murders of two children and their mother.

There’s another inexplicable twist. In a decision this month, “Hurst v. Florida,” the U.S. Supreme Court  finally declared Florida’s capital sentencing law unconstitutional because it has the judge rather than the jury declare the existence of aggravating circumstances that tip the balance from life to execution.

But it was left to the Florida Supreme Court to decide whether that was “harmless error” in Timothy Hurst‘s case and whether the ruling should be applied retroactively to the great majority of Florida’s 390 death row inmates. Of those, only 43 still have initial appeals pending in Tallahassee, which means they are more likely to be spared.

Predictably, Attorney General Pam Bondi is arguing that Hurst came much too late to benefit Cary Michael Lambrix, who’s under a Feb. 11 death warrant for two murders in 1983. The Florida Supreme Court, which has already dealt with his case 23 times, will hear his latest appeal on Feb.2.

The ghastly implication is that people could die not simply for the crimes they committed, but for when they did them. To call that equal justice under law makes no sense.

It also defies belief that it is “harmless” to abridge the constitutional right to trial by jury. That term normally describes such things as clerical glitches in a well-founded search warrant or when the outcome would clearly have been the same without the error.

The U.S. Supreme Court also left unanswered whether Florida juries should now have to vote unanimously to recommend death. They did so in only 60 of 296 cases the Florida Supreme Court heard between 2000 and 2012, and the court affirmed 17 of the 32 in which the death votes were only 7 to 5, like Hurst’s.

In a U.S. Supreme Court dissent last year, Justice Stephen Breyer wrote that it’s time to abolish capital punishment – by state legislatures preferably, but by the court if necessary. Only Ruth Bader Ginsburg agreed.

Breyer argued, among other things, that the death penalty is as arbitrary as when Justice Potter Stewart compared it in 1972 to the chance of being struck by lightning.

The unique law Florida subsequently enacted – as a middle-of-the-night mishmash slammed together by legislators eager to go home – was supposed to avoid that by specifying standards and providing for the state Supreme Court to rule on the appropriateness of each death sentence.

But this was a farce from the beginning, and so were the Florida and U.S. Supreme Court decisions that accepted it. It’s a farce because the state court almost never sees any of the vastly greater number of murder convictions that don’t involve a death sentence. It has no way to compare a Clem Beauchamp to a Jason Stephens. Every year, about 1,000 people go to Florida prisons for various degrees of homicide. Last year, only nine of them went to death row.

The differences owe mostly to the enormous discretion allowed to prosecutors as to what level of offense to charge and whether to accept plea bargains, and to the nearly unbridled power of judges. Duval County, where Jason Stephens was sentenced, is notoriously death-oriented.

And then there is race. A just-issued study from the University of North Carolina of 89 Florida executions found they were 6.5 times as likely for the murders of white women as for black men.

There are also the sometimes-inexplicable whims of juries. In Collier County, for example, a jury in 1986 spared Steven Wayne Benson‘s life despite finding him guilty of killing his mother and adopted brother with a pipe bomb. He died in prison of natural causes 29 years later. A district court of appeal upheld his conviction. The Florida Supreme Court lacked jurisdiction to review it.

I don’t fault the Palm Beach prosecutors for sparing Beauchamp’s life. It saved the state the enormous expense of a trial and prolonged appeals, it brought closure much sooner to the victims’ family than a death sentence could have, and it keeps society safe from him forever.

It goes to prove, though, that Breyer was right. The death penalty is riddled with too many inconsistencies to be worthy of a civilized society.

• • •

Martin Dyckman is a retired associate editor of the newspaper formerly known as the St. Petersburg Times. He lives near Asheville, North Carolina.

 For more state and national commentary visit Context Florida.

Martin Dyckman: U.S. Supreme Court ruling should prompt Legislature to abolish death penalty

Nothing else that government does costs as much as the death penalty in order to accomplish so little. That ought to concern even the most conservative legislators as they cope with the U.S. Supreme Court’s 8-1 decision Tuesday, in Hurst v. Florida, that the state’s capital sentencing process is unconstitutional.

The choice now is to fix it or repeal it.

“Those are our two options,” said Carlos Trujillo, House Criminal Justice chairman.

The second option is the better one.

“The death penalty, whether you’re for it or not, is not worth the expense and all the problems it causes us,” says Gerald Kogan, one of three former Florida justices who signed a brief supporting death row inmate Timothy Hurst‘s challenge to the Florida process. Life without parole is already the mandatory sentence for a convicted first-degree murderer who is spared death.

It ought to be easy enough to rewrite the law to provide that juries rather than judges specify the existence of aggravating factors to justify the death penalty. To leave it to the judge, said the high court, infringes on a defendant’s Sixth Amendment right to a jury trial.

But that raises the question of why Florida should not simply take the opportunity to eliminate the death penalty, as 19 other states have done — most recently, Connecticut, Maryland, Nebraska, New Mexico, and New York.

Florida courts have been inching toward the same outcome. According to the Death Penalty Information Center, there were only nine new death sentences last year, reflecting a nationwide decline, matching the historic low of 2004 and far below the peak of 45 in 1991

The prospect is for even fewer should juries find that the burden of deciding between life and death is squarely on them. Until now, they have been told that their recommendation is only “advisory,” which, according to legal blogger Neil Skene, was “a bald invitation not to take their responsibility seriously.”

The death penalty has never been proved to be a deterrent. Its effectiveness is as a cudgel for prosecutors to extract guilty pleas and posture about being tough on crime.

It also fills that role for legislators who say society and victims’ families are entitled to the ultimate vengeance no matter what it costs.

But is all that truly worth the exceptional expense of prosecuting so relatively few cases and of the prolonged appeals that follow?

Various studies have put that at four to six times the cost of incarcerating someone for life. By far, most killers get life to begin with. Out of 1,056 Florida prison admissions for homicide in fiscal 2014, only 13 were to death row. In that light, the death sentence is still freakishly arbitrary.

Truncating the appeals is not an option, no matter what some legislators may think or say. As the Supreme Court has said, “death is different.”

The risk of executing an innocent person is too great. Florida already leads the nation in death row exonerations — 26 so far — which is to wonder how many more there should have been. One was proved innocent after he had died of cancer. Kogan believes three innocent people have been put to death but won’t say who he thinks they were.

None of that will matter to those legislators who hold the death penalty somewhat on a par with, if not above, the Ten Commandments.

But they have themselves mostly to blame for Florida’s present mess, with as many as 92 of its death row inmates having been sentenced since the U.S. Supreme Court served notice in a 2002 case, “Ring v. Arizona,” that juries rather than judges should find the facts to support a sentence of death.

The Florida Supreme Court stubbornly — and in my view, irresponsibly — refused to apply Ring in dozens of subsequent appeals. In 2005, however, then-Justice Raul Cantero wrote an opinion urging the Legislature to require jury unanimity at some point in the sentencing process. Nothing came of it, despite efforts by Sen. Thad Altman, R-Melbourne, and others to conform Florida law to the Ring decision. His bill will perhaps fare better now.

There are other consequences of the Hurst decision that only the courts can resolve, and they are huge.

How many of Florida’s 390 death row inmates should be reprieved? Only those whose appeals are recent enough to have cited “Ring”? Or virtually all?

The high court left that to the Florida courts. It also left unanswered whether juries should find aggravating circumstances by unanimous or only majority votes and whether Florida can continue executing people without a unanimous recommendation from the juries.

Significantly, the Florida Supreme Court on Wednesday ordered the state to respond to the Hurst issue in the pending last-ditch appeal of Michael Lambrix, who’s under a death warrant for Feb. 11. His case is so old, having been to the Florida Supreme Court six previous times, that some observers think it’s too late for him, and others like him, to benefit from Hurst.

But that presumes a horribly sanguinary attitude in the courts — to let anyone die under a law that has been declared unconstitutional. However, Florida has already executed 40 people since the judge’s role as fact-decider was first questioned in the 2002 Arizona case.

The U.S. Supreme Court shares the blame for that, having declined several appeals on that point before accepting Hurst’s. In Tuesday’s decision, Justice Sonia Sotomayor overruled two of her own court’s leading Florida decisions because “time and subsequent cases have washed away the logic …”

“There really is chaos at this point,” says Karen Gottlieb, a law professor and co-director of the Florida Center for Capital Representation at Florida International University, who was instrumental in winning the Hurst case.

“We believe there is no valid Florida death penalty now, but the retroactivity will have to be determined by the courts,” says Nancy Daniels, the public defender at Tallahassee, who was another of Hurst’s lawyers. “Still, it’s a great start.”

Yes, it is. Though the odds against it are long, repeal should be the next step.

 • • •

Martin Dyckman is a retired associate editor of the newspaper formerly known as the St. Petersburg Times. He lives near Asheville, North Carolina.

For more state and national commentary visit Context Florida.

Martin Dyckman: Restoring elected education commissioner won’t fix schools

Legislation calling on Florida to once again elect a state education commissioner strikes me as the wrong solution to a real problem.

There are plenty of reasons to be dissatisfied with the state of education in the Sunshine State but none is enough, in my opinion, to enlarge the Cabinet and dilute the responsibility of the governor’s office.

Here, in two words, is one of the reasons against it:

Ron Howard.

In 1986, Republicans had a superbly qualified candidate for what was still an elected office.

He was J. Stanley Marshall, a former president of Florida State University, whose lifelong expertise was educational administration.

But the Republicans didn’t nominate him.

The winner, in both the primary and runoff, was Howard, a Palm Beach County schoolteacher.

Although they shared the same field, Howard’s credentials were insignificant against Marshall’s. He had barely enough money to mail letters, and his campaign was all but invisible. Few voters knew him. But many thought they did.

Howard shared the same name as the actor and producer-director who had starred as the child Opie on “The Andy Griffith Show.” With intense and expensive campaigns underway for governor and U.S. Senate, few voters paid attention to the Cabinet.

There was rarely enough attention to the Cabinet. In 1974, Florida had to re-elect a corrupt insurance commissioner who was about to be indicted because Republicans had passed up a highly qualified legislator to nominate a nonentity who saw nothing wrong with soliciting votes from the Ku Klux Klan.

In 1986, the name recognition was all that Howard needed, but it wasn’t enough for him or his party in November when Betty Castor, a state senator, won the race to succeed retiring Education Commissioner Ralph Turlington.

Twelve years later, culminating four decades of debate over Florida’s unique seven-headed executive branch, voters agreed to a constitutional amendment shrinking the elected Cabinet from six members to three, eliminating the independent commissioner of education and the Cabinet board of education, and putting the governor in sole charge of Florida’s most important responsibility.

Marshall was a member of the Constitution Revision Commission that proposed that.

The new system would have been a powerful force for good in the hands of progressive governors such as Reubin Askew and Bob Graham. There’s no question, though, that it has been egregiously wasted under Rick Scott.

As remarked by my former newspaper, which had endorsed the 1998 amendment in editorials that I wrote, the change has “resulted in less accountability rather than more and has not worked nearly as well as expected.”

Among the issues, said the Tampa Bay Times last week, are “Cash-strapped schools, a yawning achievement gap, a deeply flawed system of overtesting and concerns about Florida’s version of the Common Core …”

But there isn’t much that an elected commissioner could do about that — apart from running the tests competently — so long as education policy is captive to a budget controlled by governors and legislators who care more about low taxes than about children, and who rely on an overdose of standardized testing as an excuse for their neglect.

The solution, simple in concept but difficult in practice, is to elect wiser politicians with responsible priorities.

It’s true that an elected commissioner could raise his or her voice for education in ways that a governor’s puppet could not.

That raises the question, however, of whether the elected commissioner would be an independent voice in fact or just in theory. In the age of big money run wild under the Supreme Court’s Citizens United atrocity, special interests usually aligned with the Republican Party would have a lot more to do with electing the commissioner than teachers or parents could.

For a cautionary example, consider how Attorney General Pam Bondi and her colleagues have rubber-stamped nearly everything Scott has submitted to them in their Cabinet capacity, and how they played dead when he took it on himself, illegally, to fire the head of the Florida Department of Law Enforcement. Would they do any better as a board of education? Perhaps when pigs qualify for instrument ratings.

This is unpleasant to say but it is true: Florida is no more certain to elect a good education commissioner than to elect a good governor. And if there should be a good governor some day — it’s happened before — he or she shouldn’t be indentured to an archaic system that defies accountability by dividing responsibility.

Work the problem, people. The problem isn’t the system. It’s who you elect to run the system.

• • •

Martin Dyckman is a retired associate editor of the newspaper formerly known as the St. Petersburg Times. He lives near Asheville, North Carolina.

For more state and national commentary visit Context Florida.

Many Floridians of note deserve U.S. Capitol honor

Florida had been a state for less than a century when it came time to honor famous citizens with two statues at the U.S. Capitol, and there were few plausible candidates. Dr. John Gorrie, the physician who invented mechanical refrigeration – imagine modern Florida without it – was an outstanding choice. But from today’s perspective, Confederate Gen. Edmund Kirby Smith is a head-scratcher.

Let 2016 be the year the Legislature finally retires him.

Smith’s historical distinction was to command Rebel forces west of the Mississippi for the final two years of the Civil War and to surrender the last major Confederate command. But, as state Sen. John Legg has framed the issue, “He just did not shape Florida history.”

Indeed, he had nothing to do with Florida after leaving to attend West Point. However, Florida culture and politics were still steeped in the so-called Lost Cause when Smith was selected in the 1920s. If Smith wasn’t exactly on a par with Robert E. Lee or Jefferson Davis, he would just have to do.

Lutz Republican Legg is sponsoring legislation, SB310, to remove Smith’s statue and select another notable person. The first part will be the easier.

A potential trouble with the bill and its companion, HB 141, is that it would be up to the Ad Hoc Committee of the Great Floridians Program and the Department of State to recommend a single candidate to the Legislature.

The lists of “Great Floridians” chosen since Rick Scott became governor have been rather long on athletes and included at least two persons who never lived in Florida: Walt Disney and the explorer Juan Ponce de Leon. Last year brought Alto Adams Sr., who may have earned distinction as a cattle rancher but not as a Supreme Court justice.

The final choice of another Floridian for a Capitol statue should be left to the Legislature, where the process would be more transparent, and the bill should call for more than just one nomination from the committee.

That will be the harder part of the process, as there’s no shortage of plausible candidates.

Former Govs. LeRoy Collins and Reubin Askew come immediately to mind. Collins kept Florida peaceful after the U.S. Supreme Court called for school desegregation, became the first Deep South governor to declare segregation in conflict with the constitution and Christianity, and as the first director of the new federal Community Relations Service helped avert a second bloodbath at Selma, Ala. Askew, his disciple, presided over Florida’s most politically progressive era and, among other things, appointed the South’s first African-American Supreme Court justice.

Something worth keeping in mind, however, is that no state has ever commemorated the civil rights revolution with a full-bodied statue at the Capitol of any native son or daughter, black or white. That’s a conspicuous oversight. The late Rosa Parks, whose defiance of segregation led to the Montgomery bus boycott, is in Statuary Hall by act of Congress. It was dedicated, ironically, on the same day of the U.S. Supreme Court argument that led to John Roberts fulfilling his long-held ambition to gut the Voting Rights Act of 1964.

Florida’s history boasts no fewer than five prominent African-Americans who would be deserving additions to Statuary Hall. In alphabetical order, they are:

  • Mary McLeod Bethune, the civil rights activist and educator who merged the school she founded into what is now Bethune-Cookman College at Daytona Beach, founded the National Conference of Negro Women, and was an adviser to three presidents, most notably as Franklin Delano Roosevelt‘s director of Negro affairs in the National Youth Administration.
  • Zora Neale Hurston, the novelist and folklorist who grew up in Florida and is best remembered for her role in the Harlem Renaissance and her book, “Their Eyes Were Watching God.”
  • James Weldon Johnson, one of the earliest civil rights activists, born in Jacksonville in 1871, who held two ambassadorships under President Theodore Roosevelt, served as chief executive of the NAACP, and became the first African-American professor at New York University. He wrote the civil rights anthem, “Lift Every Voice and Sing.”
  • Harry T. Moore, a Suwannee County native who became the first martyr of the modern civil rights era when a bomb likely planted by the Ku Klux Klan exploded under his bedroom on Christmas 1951. Moore’s wife, Harriet, died in a hospital nine days later. Moore, a teacher and NAACP leader, filed the first lawsuit to pay black teachers the same as whites in Florida. It was unsuccessful, but he inspired others that succeeded. After the U.S. Supreme Court declared white-only primaries to be unconstitutional, his Progressive Voters League registered 116,000 blacks, 20 years before the Voting Rights Act. He was assassinated shortly after calling national attention to the questionable rape convictions of three black men in Lake County.
  • A. Philip Randolph, born in 1889 at Crescent City, Florida, founder of the Brotherhood of Sleeping Car Porters, whose intent to lead a civil rights march on Washington prompted Franklin Roosevelt to ban race discrimination in federal contracting during World War II and to establish the Fair Employment Practices Commission. He also was a principal organizer of the 1963 March on Washington best remembered for Dr. Martin Luther King Jr.’s “I have a dream” speech.

Bethune, Hurston and Moore are memorialized at Tallahassee as “Great Floridians.” So are Collins and Askew. Johnson and Randolph belong on that list also, as well as on the short list to replace Edmund Kirby Smith.

Florida would be the fourth state to replace a statue. Alabama did so for Helen Keller, Kansas for Dwight D. Eisenhower, and California for Ronald Reagan.

Legg’s bill cleared its first committee in the face of scattered protests that it represents “revisionist history.” That’s not so. The issue is that there has been more than enough history since 1922 to call for a new and truer symbol of what Florida has contributed to the nation.

• • •

Martin Dyckman is a retired associate editor of the newspaper formerly known as the St. Petersburg Times. He lives near Asheville, North Carolina.

Martin Dyckman: Insanity fueled by fraud keeps on killing

“Another day in the United States of America. Another day of gunfire, panic and fear. This time in the city of San Bernardino in California, where a civic building was apparently under attack.”

That is the voice, tinged with sorrow and shock, of a BBC reporter describing yet another day in America.

Just another day in America.

Despite all the political posturing over ISIS, the self-styled Islamic State is far from the greatest threat to life and health in the United States.

That distinction belongs to the fanatic and insatiable leadership of the National Rifle Association, which is singularly responsible for our country being awash in weapons of mass destruction. If ISIS were to vanish today, mass killings would remain routine in the U.S.

The San Bernardino massacre was only the second mass shooting that day, after an early-morning incident in Savannah, Georgia, where one person died and three were injured. According to the Mass Shooting blog on Reddit (which counts much more liberally than the FBI) California’s was the 355th this year involving four or more firearm casualties.

Just another year in America, whose homicide rate of 5 per 100,000 is the third highest among the 36 member nations of the Organization for Economic Cooperation and Development.

Guns account for two-thirds of it.

We lose 12,000 people a year to firearms – mostly one or two at a time rather than in mass shootings. It’s the massacres, of course, that capture the world’s attention. They’re as rare elsewhere as they are common here.

The San Bernardino massacre appears at this writing to be an act of ideological terrorism precipitated, perhaps, by a workplace dispute. What it has in common with the many entirely domestic mass murders is the ease with which people can acquire weapons of mass destruction even in states, like California, that attempt to restrict them. The possession of such weapons, in most cases, should be a felony.

Children are slaughtered in school – in school! – but we do nothing. A young man boiling with racial hate slays nine inside a church – a church! – but we do essentially nothing. Corpses are strewn across the aisles and seats in a movie theater and still we do nothing. A federal judge and a child are among the slain at a congresswoman’s town meeting but we did nothing. A misfit murders three people at a Planned Parenthood clinic and what do we expect? Nothing.

We are in the grip of a mass insanity and the inmates are running the asylum.

But for the NRA, and the spineless politicians it controls, every firearm purchase would require a background check. The sale and possession of military-style weapons, the kind that lend themselves to massacres, would be limited to the armed forces and the police. Individual owners would need good cause and be strictly licensed. High-capacity magazines would be prohibited.

No one needs an AR-15 for home defense. No one needs one for sportsmanship, and in fact high-capacity magazines are barred by many hunting regulations. Animals are better protected than humans in this country.

Former Chief Justice Warren Burger famously denounced the NRA’s mantra, that the Second Amendment guarantees individual gun ownership, as “one of the greatest pieces of fraud, I repeat the word fraud, on the American public.”

James Madison‘s intent in drafting the amendment was to assure the states, some of which were already itching to undo the new Constitution, that there would be no federal standing army and that their militias could continue to protect the public safety.

The militias were accustomed to providing their own weapons. The nation was overwhelmingly rural and fearful of the Native Americans it was displacing. Hunting was for subsistence, not sport.

It was done, moreover, with muzzle-loading weapons from which an expert might get off, at most, three shots a minute – not three or more per second.

If John Roberts and other distorters of the Second Amendment were truly originalists, the universal “right” to bear arms would allow only that kind of anachronistic firearm and we could set about making this country safe from mass shootings.

Unsatisfied even with the fact that there now appear to be more guns than people in the U.S., the NRA and its allies want “open carry” everywhere, including college campuses where alcohol and testosterone are a deadly mix.

The worse it gets, the more mass shootings there are, the more guns people buy.

After the Paris massacre, our State Department advised Americans to be wary wherever they travel abroad.

We’re in greater peril here.

Britain and other nations where gun violence is rare ought to be warning their citizens against coming to our country, where the next mass shooting will be fairly and accurately reported as just “another day in the United States of America.”

Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives near Asheville, North Carolina.

For more state and national commentary visit Context Florida.

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