Martin Dyckman: Capital punishment in Florida is death by judicial whim

The premise underlying Florida’s death penalty is that it will be carried out fairly. To borrow a phrase, that is a bright and shining lie.

As the first to re-enact capital punishment after the U.S. Supreme Court struck it down in 1972, Florida’s Legislature provided specific criteria for death sentences and required the state Supreme Court to review each one.

In upholding that law, the state court promised in 1973 that “the reasons present in one case will reach a similar result to that reached under similar circumstances in another case…the sentencing process becomes a matter of reasoned judgment rather than an exercise in discretion at all.”

The U.S. Supreme Court bought it.

But it was sophistry then and it is sophistry now. The Florida Supreme Court rarely sees the vast majority of murder cases that result in life sentences rather than death, and so it cannot compare them for true proportionality. When an appeal forces it to consider the disparate fates of co-defendants, its scales of justice are often out of balance.

Emilia L. Carr helped her boyfriend strangle his estranged wife in Marion County six years ago. She’s on death row. He’s not.

Heather Strong died slowly. She was duct-taped to a chair, beaten with a flashlight and suffocated with a plastic bag. Those were what the law calls aggravating circumstances.

Still, Joshua Fulgham was equally guilty.

As the court rationalized in upholding Carr’s conviction and death sentence this month, the pair had separate trials before separate juries. And although the court invited her to protest the disparity in a subsequent round of appeals, three of the seven justices believed there was already enough in the record to justify executing her alone.

That concurring opinion, written by Justice Ricky Polston, said she was “more culpable” because her intelligence was superior to that of her low-IQ lover, whom she probably manipulated into carrying out the murder.

Carr, who is 30 and has been on death row for four years, will be a lot older before her fate is sealed.

And Florida taxpayers will be out a lot more money than it would cost them if a life sentence rather than death hung in the balance.

The Miami Herald once calculated that Florida was spending $3.2 million for each death case, six times the total for litigation and incarceration of a life sentence. More recent studies in other states vary from twice to five times the cost of death over life, and figured in Maryland’s recent decision to abolish capital punishment. In declaring a moratorium on executions pending a legislative study, Pennsylvania Gov. Tom Wolf said Friday, “This decision is based on a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust, and expensive.”

There is something inherently foul in a system that gives life to the co-defendant who cops a plea and death to the one who might be less guilty.

Jesse Tafero, executed in 1980, was put in the electric chair by a co-defendant, Walter Rhodes, who said Tafero was the triggerman in the deaths of two law enforcement officers. Rhodes later recanted, saying he had been the shooter, but the courts wouldn’t believe him. The execution a month ago of Johnny Kormondy owed similarly to a co-defendant’s subsequently recanted testimony. The same thing happened to John Marek in 2009 despite the sworn testimony of other inmates that a co-defendant serving life – and subsequently murdered in prison – had boasted of being the actual triggerman.

Carr’s is another of those cases in which the jury did not recommend death unanimously – the vote was only 7 to 5 – but Florida allows the judge to make his or her own decisions. Most often, the Supreme Court approves them.

That’s just one of the ways the 1972 law perpetuated discretion. Some judges and juries are harsher than others. Prosecutors have great leeway in deciding whether to accept a plea or go for the kill, and their decisions can’t be appealed.

In fiscal 2014, 1,056 people went to prison in Florida for murder or manslaughter. Of those convictions, 384 were for first degree murder, the only kind eligible for death. But of those 384, only 12 were death-sentenced. Those 12 are the only cases the Supreme Court is required to review. Appeals of the others rarely go beyond the five district courts of appeal.

There’s a man serving life from Collier County for killing his mother and sister with a pipe bomb. That would seem to be more diabolical than what Carr did. But his case never figures in any proportionality review.

Once upon a time, Florida governors commuted sentences to prevent comparative injustice. The last to do so was Bob Graham, in 1983. There has been no commutation for any reason since then.

At the U.S. Supreme Court, Justice Harry Blackmun eventually despaired of finding justice in capital punishment.

“From this day forward, I no longer will tinker with the machinery of death,” he wrote in a 1994 solitary dissent. “…The problem is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.”

He was right. Florida remains in the wrong.

Martin Dyckman is a retired associate editor of the St. Petersburg Times. He lives near Waynesville, North Carolina. Column courtesy of Context Florida.