Some States Hit the Brakes on the Death Penalty While Others Try to Accelerate the Path to Execution
By Sarah Turberville, Senior Counsel, Criminal Justice Program

Capital punishment is inconsistent and unequal, and it’s time to have a conversation about ensuring equal justice under the law . . . There are too many flaws in the system.  And when the ultimate decision is death there is too much at stake to accept an imperfect system.  Governor Jay Inslee, upon issuing a moratorium on imposition of the death penalty in Washington State, Feb. 11, 2014.

Only God can judge, but we sure can set up the meeting. Representative Matt Gaetz, Florida House of Representatives, Sponsor of the “Timely Justice Act,” enacted May 2013.

Could there be two more widely divergent conclusions about the fairness of our country’s death penalty?

To be sure, the system through which individuals are sentenced to death in these two states are also widely divergent.  There are just nine men on Washington State’s death row.  There are over 400 people facing execution in Florida – a state that continues to add to its death row in a trend substantially counter to that in the rest of the country (including Texas).  There has been a single exoneration of a person due to concerns about innocence in Washington State.  Even while adding to its death row, Florida has exonerated 24 people sentenced to death.  Indeed, for every 3 people who have been executed in Florida in the modern death penalty era, the Sunshine State has exonerated one prisoner due to innocence.  Florida, unlike Washington State, also permits a jury to decide by a simple majority vote (7-5) to sentence a defendant to death.  Juror unanimity is required in nearly all other death penalty states, and should be able to enhance the verdict’s accuracy.  These are not facts that should give rise to the passage of law that, to paraphrase its sponsors, was meant to shorten the length of time between conviction and execution in Florida.

It is now well-established that Americans’ views concerning capital punishment are changing.  This is not only reflected in public opinion polling on the issue, but also in decreased use of the penalty.  Mounting evidence of disparate treatment of similar cases, concerns about wrongful convictions, and the availability of life without parole have led to the repeal of the death penalty in six states in six years.  Just yesterday, a New Hampshire House Committee voted 14-3 to pass a bill to repeal the death penalty in that state. And Governor Inslee, and his neighbor, Governor John Kitzhaber of Oregon, have imposed suspensions of executions in their home states due to serious concerns about a flawed system.  Even more states have adopted reforms aimed at reducing the likelihood of wrongful executions and to improve the quality of representation in death penalty cases.

Some states, however, appear to be following Florida’s lead.  Legislators in Alabama, for example, are seeking to pass a law aimed at speeding up the appeals process for death penalty cases.  It would be difficult to overstate how misguided such legislation is – particularly in the face of the extraordinary and unique problems documented in Alabama’s existing capital punishment system.  The proposed law would impose twice the work on appeals lawyers in a state without any dedicated public defender agency to handle capital cases or appeals.  If Alabama’s law is based on the Texas model, as its supporters have claimed, it is missing a substantial component – a much needed sizeable contribution of public funds to support equal justice in the form of competent lawyers for those facing the ultimate punishment.

The truth is that due to the nature of the crimes prosecuted in death penalty cases—and the concomitant public clamor and attention given to capital trials—errors and misconduct are far more common and likely to result in unreliable and unfair outcomes.  Thus, the appeals process is naturally more complex.  As Governor Inslee stated yesterday in calling for a moratorium, more than half all death sentences imposed in Washington State have been reversed.  Similar error rates have been documented in other death penalty states.

Bills like the “Timely Justice Act” and Alabama’s proposed “Fair Justice Act” underscore the critical need to cultivate and deploy bipartisan messengers to encourage our decision-makers to be smart on crime, rather than to resort to use of the death penalty as a political tool.  Whether you support or oppose capital punishment as a matter of religion, philosophy, or morality, our current system is untenable.  The Alabama and Florida examples are plain reminders that we must be persistent and creative in our efforts to garner support for a fairer death penalty system – not a faster one – wherever it may exist.   The Constitution Project will soon release an updated report by its bipartisan committee of experts on the death penalty, which can help lead the way to that fairer death penalty system.





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