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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.

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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.

 For more state and national commentary visit Context Florida.

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