Thursday, January 10, 2008

Thoughts on delays in death sentences

Guest Opinion: David Brener

Originally posted on January 10, 2008

I am writing in response to Charley Reese's article entitled "Abundance of Ambivalence Over the Death Penalty," (Dec. 26). Mr. Reese stated that capital appeals drag out to "the point that many condemned men are in danger of dying of old age." This is simply not true.

The average stay on Florida's death row is 14-16 years, although the minimum number of years for a Florida case to make its way through state and federal courts for review is approximately 11 years. Perhaps if the state properly funded the few people who take on this difficult and demanding work, finality could be achieved sooner. However, given the stakes, and the high number of exonerations in Florida, based on perjured testimony, erroneous eyewitness identifications, lying jailhouse snitches and false and coerced confessions, the time and effort spent on review of a capital case is reasonable, necessary, and some would say, constitutionally required.

It is not a convincing argument in favor of official, state-sanctioned murder that we "all are sentenced to die at birth," as stated by Mr. Reese. By this justification, cold-blooded murder itself could be justified, which it surely should not be simply because we all have to die anyway, or for any other reason.

Mr. Reese says that the delay makes a mockery out of the purpose of having a death penalty: deterrence. This too is not true. Deterrence is not one of the main purposes of sentencing in the State of Florida; retribution and punishment are. But the prospect of being sentenced to death as a possible future consequence of committing a heinous murder has been proven to not be a factor in the decision-making process of people who kill. Rather, people who commit first-degree murder are typically mentally ill, freaked out on drugs, retarded, or abandoned and abused.

Without falling into a discussion of whether such people are "deserving" of death, suffice it to say that deterrence, for such individuals, does not work. Moreover, given Florida's only alternative to the death penalty for one convicted of first-degree murder, life in prison without the possibility of parole, which means exactly that, any possible deterrent effect would not be greater as a result of the existence of a death penalty. As stated by Mr. Reese, "condemning a man to spend the rest of his life rotting in a prison is not an act of mercy or benevolence." And, since such an individual in Florida will never get out, Mr. Reese is wrong when he claims that killing them "at least" eliminates any danger they pose. So does natural life in prison; the only way you leave, the only way you go back to society, is in a pine box.

I agree with Mr. Reese that eliminating the death penalty would certainly save the taxpayers money. According to some studies, it costs three times more to try to sentence someone to death than to imprison him for life. Life in prison also eliminates the clear economic, racial, and geographic disparity associated with the death penalty. Poor people, minorities, and those from a few Florida counties represent a disproportionate number of the cases where the death penalty is sought. On the other hand, life in prison for first-degree murder treats all similarly situated people the same, and manifests the time-honored and exalted goal of the law to provide "equal justice for all."

Heightened reliability in the fact-finding process is justified and necessary in the death penalty context. As stated by Justice Stewart in Furman v. Georgia, "the penalty of death differs in kind from all other forms of criminal punishment. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice, and it is unique in its absolute renunciation of all that is embodied in our concept of humanity." Given that Florida is the only state in the country that allows a bare majority of jurors to decide that the aggravating factors exist, and to recommend death by a bare majority vote, it seems a small price to allow those condemned to death to fully challenge the lawfulness of their sentence, or to have ample opportunity to try to prove their innocence.

- David A. Brener is a Fort Myers attorney who represents one of the defendants in the "Cash Feenz" murder case, as well as one of the defendants charged in the murder of Washington Redskins football player Sean Taylor, and one of the defendants charges in the death of convenience store clerk Gerald Rabon. He was co-counsel for Jeremy Chapman, who was sentenced to life in prison for the murders of Annamarie Randazzo and John Hardin.

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