Speech given by Former Florida Chief Justice Gerald Kogan
Amnesty International Southern Regional Conference
Orlando, Florida
October 23, 1999
Good morning, everybody. It’s my pleasure to be here this morning and it’s worth the trip up from Miami to come to Orlando to speak before a group such as this. I was commenting to Joe before we started that there are so many young-looking folks in the audience and Joe very politely said, “I’m glad to know there are those who will be able to carry on after we’re gone.” Well, Joe, hopefully they will and, hopefully, you and I will be around a long time yet so we’re not going to have to rely on that necessarily.
In any event, I am going to approach this particular topic, perhaps in a different way than most of you might expect. First of all, let me tell you where I’m coming from. I’m looking at 40 years of experience with the Death Penalty. I, at one time, was the chief prosecutor of the homicide and capital crimes division of the Dade County State Attorney’s Office. It was my job, at that time, to prosecute people who were, in fact, charged with capital crimes. I, myself, asked juries to return the death penalty and execute people who were charged with capital offenses. I instructed the prosecutors who worked under me in the State Attorney’s Office in certain cases, that it was their duty to ask that the jury return the death penalty and, in many instances, the jury did just that.
After leaving the State Attorney’s Office, I went into the world of private practice, doing basically criminal defense work. At that time, I represented people charged in instances with having committed capital offenses. And there the role reversed, asking juries not to send these persons to their death for all the reasons that most of you know and we try to apply.
I have represented in capital cases, children as young as 14. I’ve actually had to sweat out juries where people of the age of 15 and 16 could be facing the death penalty. Those were the days before we bifurcated—-and by that I mean, we had the single trial to determine whether or not somebody was guilty of a capital offense and whether or not they were to receive the death penalty. Now, of course you know, there are two phases to the trial. One is the guilt phase and the second phase is where the jury can independently determine whether or not the death penalty ought to apply. But back then, before the change, if the jurors found someone guilty of a capital offense and if they failed to recommend them to the mercy of the Court, in their verdict form, then the death penalty was automatic. The trial judge had no alternative but to sentence that person to death. On the other hand, if they did recommend the defendant to the mercy of the Court, the trial judge had no alternative but to go ahead and sentence them to life imprisonment. That, of course, has changed today, in many respects.
Upon leaving the private practice of law, I became a Circuit Court Judge in Dade County, doing most of my work in the criminal courts division. I was Administrative Judge of the criminal division and, needless to say, handled numerous capital cases. Since 1987 until last year, for a period of 12 years, I sat on the Supreme Court of Florida, actually listening to the appeal on every case where a person was sentenced to death in the State of Florida by the trial court. I estimate that, in the last 40 years, I have participated either as a prosecutor, as a defense attorney or a trial judge or as an appellate judge on the Supreme Court in the disposition of more than 1200 capital cases. I don’t know of anyone else in the State of Florida who has that kind of experience or, for that matter, that kind varying type of experience. So, when I speak to you, I speak to you based upon what, I hope, has been those things I have learned in the last 40 years.
Many times when I speak to groups, they are not friendly groups. I look upon this group as being a friendly group to the message I am about to give. But, for example, when you’re talking to the Rotary Club in Gainesville, it makes quite a difference. But I like to start out by getting their attention; by bringing to them, as best I can, first hand as to what happens on a particular day when, as Chief Justice on six separate occasions, not to mention the 22 other occasions when I sat on the Supreme Court, where persons were put to death under the law of the State of Florida and I was a member of the Court. on some cases, signing off on that and saying, “State, all of the requirements of the law of this state have been met and you can proceed with the execution,” and in other cases saying, “No, this person,” for whatever the reason may be, “should not be executed.” But as Chief Justice, I want to call to your attention to what happens.
About 6:30 in the morning, I arrive at the Supreme Court Building and the first thing I do is go to the clerk’s office and I check with the clerk at that time to find out whether or not there had been any last minute petitions had been filed for a stay of execution. Generally, by that stage, the answer is no, there have not been. At about a quarter of 7, we get a phone call from the Governor’s office, the Governor’s counsel. And the Governor’s counsel, after the usual pleasantries like, Mr. Chief Justice, how are you this morning, then the fatal question is asked. “Are there any stays of execution?” And, of course, by that stage, there are none. And whether or not I had been on the majority of this particular case, or whether or not I had dissented and said in that dissent that this person should not be executed, the majority of the Court rules and, as Chief Justice, I have to convey the majority of the Court opinion to the Chief Counsel for the Governor. So, I tell the Governor’s Counsel, “No, there are no stays.”
What happens next is, the Governor’s Counsel contacts the warden at the Florida State Prison where the execution is to take place. The warden then asks the condemned person whether or not they have any last words to say. Usually they don’t. Sometimes they do. Generally, their attorney, after the execution, will read a statement from the condemned person. I am then told that the warden is now having the hood put over the face and the head of the accused. They then tell me, “Mr. Chief Justice, the electricity has been turned on.”
Now, from that moment on, what goes through my mind is really difficult to describe. But I think that I basically can sum it up by saying, I just hope to God that this person is in truth and in fact guilty of the crime for which they have been convicted and I hope that this person meets all the criteria that the State has set out in the State law for the purpose of execution. That is a very, very troubling moment for me. An extremely troubling moment, because the next voice I hear is, “Mr. Chief Justice, the electricity has been turned off and the doctor is examining the prisoner.” A few moments go by, it sometimes seems like an eternity, then the Governor’s Counsel tells me that the doctor has pronounced the prisoner dead and gives me the official time. A very, very sobering moment, for somebody who 45 years before never dreamed or thought that he would ever be in that particular position, for I will be the only person between the State and the condemned prisoner as to whether or not that prisoner lives or dies. It’s an awful responsibility. And you say to yourself, “God, help us all if we have made a mistake.” And there is no question in my mind, and I can tell you this having seen the dynamics of our criminal justice system over the many years that I have been associated with it, prosecutor, defense attorney, trial judge and Supreme Court Justice, that convinces me that we certainly have, in the past, executed those people who either didn’t fit the criteria for execution in the State of Florida or who, in fact, were, factually, not guilty of the crime for which they have been executed.
And you can make theses statements when you understand the dynamics of the criminal justice system. When you understand how the State makes deals with more culpable defendants in a capital case offers them light/life sentences in exchange for their testimony against the another participant or, in some cases, in fact, gives them immunity from prosecution so that they can secure their testimony. The use of jailhouse confessions, like people who say, “I was in the cell with so-and-so and they confessed to me.” Or using those particular confessions, the validity of which there has been great doubt. And yet, you see the uneven application of the death penalty where, in many instances, those that are the most culpable escape death and those that are the least culpable are victims of the death penalty. These things begin to weigh very heavily upon you. And under our system, this is the system we have. And that is, we are human beings administering an imperfect system.
I am often asked a question: “Why does it take so long from the trial until the person is executed?” And I think many of you understand why, just based upon what I have told you so far. Because, in most instances, all of the judges that handle these particular cases along the way, all want to be super careful that they, in fact, do not make a mistake. And they take this very conscientiously. And they try as hard as they can to give the condemned prisoner every benefit of the doubt that is possible. And this occurs because of the many petitions that are filed by defense counsel on the part of the condemned.
We are fortunate in the State of Florida, although there are those who will not agree with me on this issue, that we do have a very competent group of attorneys. We call them the Capital Collateral Representative Office _____, who represents condemned prisoners after they have been sentenced to death and after they’ve been incarcerated and after the public defender or the private counsel who has represented them has long since been disassociated with the case. And they do a magnificent job to raise all of the possible issues that can be raised before us. So, at least, the condemned, for the most part, have had, hopefully, the best legal representation that is possible. But yet, there is always that doubt that always lingers in your mind as to whether or not these particular people are factually innocent of this particular crime.
You know, it’s one thing to convict somebody of a crime they didn’t commit, put them in prison, lock the jail cell. If you discover a mistake, well, at least you can go there and open up the prison door. You can let them out and you can say to them, “Well, file a claim with the State Legislature and maybe we can compensate you for the mistake that we made.” But it doesn’t work that way in a capital case. You don’t dig up a coffin, open up the lid and then tell the accused, “Oops, sorry. We made a mistake. Just go on home, go on about your business.” It doesn’t happen that way. And it’s because of the finality of this particular punishment, more than any other, that causes judges to be super careful.
Now, I have had members of the State Legislature who have heard me speak this way and have criticized me and said that they are convinced in their own mind that we have never executed an innocent person in the State of Florida. Well, I’m glad that they are possessed of such great wisdom. They who have never tried a capital case, who have never presided over one, who have never sat on the appellate level, who really and truly do not understand the dynamics of the criminal justice system, are able to make a statement such as that. Now, I will leave it up to you whether or not their observations are valid or whether someone who has dealt with this all of their professional life has a better feel and a better understanding.
We currently have sitting on death row; it varies from day-to-day but roughly 380 persons that have been sentenced to death. Some have been there as long as 25 years. I remember, and you all probably do, the great human cry about Ted Bundy. Ted Bundy was executed back in the year 1990. And at that time, everybody said, “Why has he been around so long?” But on the day that Ted Bundy was executed, there were 51 people sitting on death row who had been there longer than he has. And to this day, a great majority of that same 51 are still sitting on death row, their cases perhaps forever stalled in that particular position.
We find that the death penalty uses up resources in proportion that far outnumbers what it really should do. The Miami Herald, and this is an old statistic, so you can bet your life that the statistics are much higher now, they estimated back in 1988 that it costs, from the time of arrest to execution, taxpayers of the State of Florida $3.2 million to execute someone; whereas a life sentence without parole would only cost the State $600,000. I heard the Attorney General of Florida, Bob Butterworth, give an estimate of anywhere between $3 and $5 million to execute someone. These cases make up but 3%, numerically, of the caseload of the Supreme Court of Florida. But yet, it takes upon almost 50% of the time of the Justices and 97% of the other cases have to wait their turn to be decided by the Court. And you have to say to yourself, is it worth all the time, all the effort and all of the uncertainty, the uncertainty being the one reason why I feel that capital punishment is not a viable punishment in any event, simply because we can make a mistake. And if we make a mistake and we are human beings operating in an imperfect system and we’re bound to make mistakes I submit to you, for that reason, and that reason alone, that capital punishment should no longer be law of this State or any other state.
Now I want to talk to you about this. I know all of you or most of you are interested in the abolition of the death penalty. But the abolition of the death penalty is not going to come about by trying to convince people that the death penalty is wrong, that it is not one of the things that a civilized society should do to any of its citizens, that it’s wrong to kill somebody to teach that killing is wrong, or that, in fact, the death penalty, despite the accidents in recent years that have happened and all of you have read about that and understand that .that it is not cruel or unusual punishment. Simply because, whether we like it or not, all of the polls show us that 75% to 85% of the people of this country and especially in the State of Florida, believe that we should keep the death penalty. And, of course, you know what they say to anyone who opposes the death penalty they put you in that category of, so-called, bleeding heart liberal.
Well, you have to remember that you’re only going to have the death penalty abolished by legislative action. You’re not going to see it come out of the Supreme Court of the United States. You’re not going to see it, in my opinion, come out of any supreme court of any state because, they too are conscious of the fact that the overwhelming majority of the citizens of this country, in fact, favor the death penalty. The way you’re going to have to do it is, you are going to have to do it by showing them: Number 1, the greatest obstacle, of course, is the fact that you can accidentally electrocute an innocent person, that despite what the politicians say, it happens, unfortunately, all the time.
Now, how do you know all this? Well, you’ll hear from Professor Mike Radelet later on. He’s made a study of this. But I want to cite a statistic to you that I find is mind-boggling. In approximately the last 10 or 12 years, since DNA evidence has come to the forefront, we have seen approximately 75 persons sitting on death row throughout this nation being released because the DNA evidence showed that they were factually innocent of the crime for which they had been convicted and sentenced to death. I submit to you that that is a frightening statistic, not only because of the 75 persons that are released but you have to ask yourself, how many persons did we execute prior to the arrival of DNA evidence who would have been released, had we had that tool working for us 25, 30, 40, 50 years ago? I submit to you, the numbers probably would have been about the same as they are now.
And how about those people who are still sitting on death row today, who may be factually innocent but cannot prove their particular case very simply because there is no DNA evidence in their case that can be used to exonerate them. Of course, in most cases, you’re not going to have that kind of DNA evidence, so there is no way and there is no hope for them to be saved from what may be one of the biggest mistakes that our society can make.
We also have to show the members of the legislature and the public the tremendous costs in resources and ask ourselves whether it is necessary for us to spend on our highest appellate court 50% of their time dealing with only 3% numerically of the cases that come before it. Is it really all that important? And we learned a long time ago that the two main reasons for having the death penalty are: Number 1, a deterrent effect. That somehow, by executing these people, we are going to cut down on the homicide rate in this country. Well, we have learned that with one exception, Washington, D.C., and why that is, I don’t know, every other jurisdiction in the United States where the death penalty is not permitted, in those states, their rate of homicide differs very little from those states that have the death penalty.
The Second, so obviously, I’ve known this for years it doesn’t deter. Because most people that are convicted of first degree murder and sentenced to death have either mental problems, and by that I mean many of them are borderline mentally retarded; there are those who are committing these crimes as crimes of passion that, for some reason, were never charged with a second degree murder, which is a crime of passion but rather the first degree murder; people who have been under the influence of drugs, under the influence of alcohol. These persons, I can assure you, never, ever would have been deterred and never, ever thought about receiving the death penalty as a result of their actions. The only persons that really think about that are your so-called “professional hit-people.” We used to call them “hit men”, but I guess that’s not politically correct anymore, I guess we may have “hit women”. But the fact of the matter is, those people don’t worry about it because they know they are never going to be caught and it’s very, very simple why because they don’t blab to their friends what they have done, they don’t leave all sorts of clues behind, they don’t do it in front of witnesses you’re never going to deter them.
So, what does that leave us with? The last thing and that is simply, Society’s revenge. And that is to take out Society’s revenge on the person who has transgressed.
Now there are certain cases where you can probably justify the death penalty and I discuss this with many friends of mine. And I say to them, “What would you do in situations if Adolf Hitler were on trial for murder, for genocide?” or “What would you do in the case of Adolf Eichmann?” and many others that we could name. And even my friends who are the staunchest opponents of the death penalty say that, yes, there can be those cases where the conduct of the individual is so egregious that Society does have the right to terminate their existence. But that isn’t what we are talking about here. We are generally talking about persons who have committed one homicide in their lifetime, not people who have killed hundreds of thousands or millions of people as an act of genocide.
And so, where does all this leave us? It simply leaves us with the fact that, if we need to abolish and feel we want to abolish capital punishment, the first thing you’re going to need to do is sit down and begin to have a dialogue with the general public. Because the ____ of the politicians will only help in a limited manner because politicians, for the most part, have a knee-jerk reaction to this issue. And if they perceive the overwhelming majority of the public are in favor of the death penalty, then they will not do anything at all to see to it that the death penalty comes to an end. Not when we have people who, as one of our State Senators said, “I don’t care if we fry ‘em or inject ‘em, as long as we kill ‘em.” I won’t tell you who that was, but he ran for the United States Senate as a Republican candidate in the last election. And if you have public officials that have that attitude, you’re really not going to get anywhere. So think what you need to do, you’ve got to do this from the grassroots. You have to explain to the citizenry what this is all about, that this is not an open and shut matter of let’s do away with somebody because they did away with somebody else. It’s not a matter to say, well, that particular defendant who committed a murder in a cruel manner deserves the same type of fate as their particular victim. You’ve got to sit down, rationalize this and talk to them in a calm and rational matter that 1) this particular problem requires far more of our resources than this country should be willing to invest and 2) because of the fact that you can make a mistake, if for no other reason, should allow you to say to yourselves that the death penalty should not be a viable penalty, not only in Florida, but throughout the nation.
And, perhaps, by doing that, not in the near future I don’t want to get anybody’s hopes up don’t count on the near future that the death penalty going to be abolished. But certainly you can’t give up hope and you’ve got to work for the future and see what the future brings, even if it may be in the distant future. Because anything that is worthwhile deserves to be nurtured and to be carried along until it comes into fruition.
And so, I want to commend those of you who feel that the death penalty is archaic, is something that does not belong in a civilized society, in the path that you have chosen to see to it that the death penalty is finally abolished. And I know that when you hear the panel discussion up here, you are going to be able to ask as many questions as you like.
So, with that, I’m going to end my little talk to you. And, hopefully, I’ll be sitting on the panel here and will be very happy to answer any specific questions. Again, I wish you all Godspeed in your work and thank you very much for having me here this morning.
