Martin Dyckman
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.
