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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.

• • •

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

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