EDITORIALS: Calls for Florida to Revamp Its Untrustworthy Death Penalty System

The Orlando Sentinel in Florida recently called on the state to change the unusual way in which it arrives at death sentences, recommending instead unanimous jury decisions for a death sentence, the prevailing practice in the vast majority of states.  In June, a federal judge declared Florida’s death penalty unconstitutional because it only requires a simple majority to decide whether aggravating factors exist and to recommend a death sentence to the presiding judge.  In 2005, former Florida Supreme Court Justice Raoul Cantero urged legislators to make a similar change and require a unanimous jury recommendation in capital sentencing.  The following year, a study conducted by the American Bar Association called for reforms in the state’s death penalty system which has had more exonerations than any other state, with 23 inmates released from death row since 1973.  The chair of the study, Professor Christopher Slobogin, concluded, “Much more needs to be done to ensure that Florida's death penalty system avoids executing the innocent.”  The Sentinel's editorial echoed that concern, “Florida can no longer shrug off travesties of justice that damn innocents such as Frank Lee Smith. After serving 14 years for a rape and murder, DNA testing proved his innocence. Redemption that came 11 months after he died behind bars. Florida simply can no longer accept a simple majority when lives hang in the balance.”  Read the full editorial below.

DPIC RESOURCES: New State Pages Now Available

DPIC is pleased to announce the completion of our State Information Pages for all 50 states and the District of Columbia.  These state profiles provide historical and current information on the death penalty for each state, including famous cases, past legislative actions, and links to key organizations and state officials.  For frequently updated information, such as execution totals, the size of death row, or the number of exonerations, see our State-by-State Database.  Readers are encouraged to send additional information, pictures, and links to organizations in their state.  You can reach the State Information Pages through the "State by State" button at the top of every page on our website or under the "Resources" tab in our main menu.

TIME ON DEATH ROW: Justice Breyer Points to Constitutional Problems

For some Supreme Court Justices and international courts, the extensive time that many inmates spend on U.S. death rows has raised concerns about cruel and unusual punishment.  In a recent dissent regarding the execution of Manuel Valle in Florida, Justice Stephen Breyer argued that Valle should not be executed because the 33 years he already spent on death row amounted to a violation of the Eighth Amendment.  In an earlier dissent in 1999, Justice Breyer noted that the Constitution did not foresee such delays, “Our Constitution was written at a time when delay between sentencing and execution could be measured in days or weeks, not decades.”  Justice Breyer’s concerns are in line with leading international legal opinion regarding the debilitating isolation common to death row.  Foreign courts have ruled that living for decades while facing execution is a form of psychological torment.  Sarah H. Cleveland, a Columbia law professor and former State Department official, said, “Although concerns about the human impact of excessive time spent on death row have received little attention in this country, the ‘death row phenomenon’ — including lengthy time on death row — has been recognized as inhuman punishment and illegal throughout Europe since the 1980s.”  In a 1993 opinion, the British Judicial Committee of the Privy Council wrote, “There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years.” Justice Breyer concluded that a death penalty system that cannot be administered without long delays points to “the difficulty of reconciling the imposition of the death penalty as currently administered with procedures necessary to assure that the wrong person is not executed.”  While on the Court, Justice John Paul Stevens also expressed concerns about the cruelty of extended time on death row. 

Florida's Death Penalty Marked by Arbitrary Decisions

Mike Thomas, columnist for the Orlando Sentinel in Florida, recently examined the arbitrariness of the state's death penalty system.  "There is no rhyme or reason here," he wrote. "A governor's decision on whose death warrant to sign, as well as a judge's decision on which appeal to accept, are about as arbitrary as a prosecutor's decision to pursue the death penalty.  We spend an estimated $51 million annually on this nonsense, and for our investment we haven't executed anyone going on a year and a half."  Thomas examined recent murder cases in the state, where the death penalty is pursued in one but not the other, concluding that "The odds certainly seem to favor those who can afford top legal talent."  He saw little chance for change in this process: "A new drug that Florida plans to use in its lethal cocktail finally survived all the legal challenges, including one by [death row inmate Manuel] Valle, only to be pulled by the manufacturer. A new drug will mean more challenges.  A federal judge recently ruled that Florida's death-penalty statute is unconstitutional because the condemning jury doesn't have to disclose which aggravating circumstances led to its recommendation.  On and on it goes."

NEW RESOURCES: 2011 DEATH ROW USA Report Now Available

The latest edition of the NAACP Legal Defense Fund's "Death Row USA" showed a slight increase of 9 inmates in the death row population in the United States between October 1, 2010 and January 1, 2011. However, death row is still significantly smaller now (3,251 inmates) than in 2000 (3,682 inmates). The size of death row also declined overall in 2010.  The size of death row is affected by the number of death sentences and the number of executions. Nationally, the racial composition of those on death row is 44% white, 42% black, and 12% Latino/Latina. Texas, Louisiana, and Connecticut had death rows consisting of 70% minority defendants.  California continues to have the largest death row population (721), followed by Florida (398), Texas (321), Pennsylvania (219), and Alabama (206). California and Pennsylvania have not carried out an executiion in over five years.  The report contains the latest death row population figures, execution statistics, and an overview of recent legal developments related to capital punishment.

UPCOMING EXECUTION: Florida Case Raises Numerous Legal Concerns

Florida has set an execution date of Septmeber 6 for Manuel Valle (pictured), a foreign national from Cuba who was deprived of his rights under the Vienna Convention on Consular Relations.  The European Union's ambassador to the U.S. has asked Florida to halt the execution, and Florida's Catholic Bishops have also requested clemency for Valle, saying, "Killing someone because they killed diminishes respect for life and promotes a culture of violence and vengeance."  The state plans to introduce the anesthetic pentobarbital for this execution, despite the fact that the manufacturer of the drug, Lundbeck, Inc., has asked Florida to refrain from such use, saying it "contradicts everything we are in business to do." Valle has been on death row for about 33 years, raising other questions about cruel and unusual punishment in his case.  In another case, a federal judge has found Florida's statute to be unconstitutional.  If that ruling is upheld on appeal, it could affect Valle's case as well, but only if he is still alive. UPDATE: Valle's execution has been stayed at least until Sept. 8 by a federal court to consider whether he was denied a clemency hearing. UPDATE: Stay of execution lifted; may proceed on Sept. 8.

Florida Supreme Court Stays Execution to Allow Lethal Injection Hearing

On July 25, the Florida Supreme Court (4-3) stayed the August 2 execution of Manuel Valle to allow a lower court to consider a challenge to a new lethal injection drug.  Last month, Florida substituted pentobarbital for sodium thiopental as the first drug in its three-drug protocol for executions.  Florida and many other states were forced to seek alternatives to sodium thiopental when the drug's sole U.S. manufacturer decided to stop its production.  Valle's lawyers contend that the use of pentobarbital would subject him to a substantial risk of harm because the drug has never been tested on humans for the purpose of inducing an anesthetic coma.  Federal judges in Ohio and Delaware have also recently stayed executions in those states because of lethal injection challenges, although the stay in Delaware was lifted pending clarification of the basis for the stay.  On separate grounds, a federal judge in Florida found the state's death penalty law unconstitutional because jurors are not given decision-making power to determine whether a defendant is eligible for the death penalty.  That case is still under review.

NEW RESOURCES: Judges in Alabama Imposing Death Sentences by Overriding Juries

A new report from the Equal Justice Initiative in Alabama exposes the practice of state judges imposing death sentences by overriding a jury's recommendation for life.  EJI's study found that judges in the state have overridden jury recommendations 107 times since 1976.  In 92% of the overrides, judges overruled life verdicts to impose a death sentence.  More than 20% of the defendants on Alabama's death row were sentenced through judge overrides.  These sentences contribute to the high per capita death sentencing and execution rates in Alabama compared to the rest of the country.  In Alabama, trial and appellate court judges are elected, often based on "tough on crime" platforms.  The study found that the proportion of death sentences imposed by override often is elevated during election years.  For example, in 2008, 30% of new death sentences were imposed through judge override, compared to only 7% in 1997, a non-election year.  In Johnson v. Alabama--a case involving a judicial override--Justice Thurgood Marshall, wrote in dissent that "it approaches the most literal sense of the word 'arbitrary' to put one to death in the face of a contrary jury determination where it is accepted that the jury had indeed responsibly carried out its task."