In the next hour I would like to give a "Status Report" on the death penalty in Florida.  I will argue three major points.  First, how death sentences are applied and how the death penalty is argued in Florida today is significantly different than they were six or eight years ago.  Second, there are several indications that support for the death penalty has peaked, and, consequently, that we are seeing rather significant declines in the imposition of new death sentences.  Third, the trends we see in Florida are consistent with trends we are seeing in many other places in the United States and elsewhere in the world.  For nearly two centuries there has been a gradual worldwide decline in the use of capital punishment.  Florida's love for the death penalty in the first 25 years after Furman (1972) is an aberration, and the recent changes that I will discuss are, I believe, putting us back on the track toward abolition.

A.  Trends in Imposing Death Sentences

     Rates of death sentencing in Florida have dropped precipitously in the past five years (see Table 1).  Excluding those resentenced to death after their initial death sentences were vacated by appellate courts, there were 22 first-time death sentences handed out in 2000.  This continues a downward trend that first began in 1996.  In the decade between 1986 and 1995, Florida sentenced an average of 39.9 people to death each year.   Between 1996 and the end of 2000, we averaged 22.4 death sentences per year.  Florida's death sentencing rates are still outrageous given any contemporary standard of human rights, but these figures represent a drop of over 40 percent in rates of death sentencing in the past five years.

     The downward trend continued, and even accelerated, in 2001, when only fifteen people[1] were sentenced to death.  In 2001 Florida had the fewest number of death sentences in any year since 1973.

B.  Regional Disparities

     Of the 22 new death sentences in 2000, six came from the First Judicial Circuit, two from the Second, and one from the Third.  Hence, north Florida and the panhandle accounted for 41 percent of the new death sentences in that year.  In 2001, three of the fifteen death sentences came from these Circuits.[2]  Obviously this figure is disproportionate both to the population and the number of murders that occur in those rural areas.

C.  LWOP

     One reason for the decline in death sentences appears to be the availability of a sentence of Life Imprisonment Without Parole (LWOP).  Those convicted of first-degree murders that occurred between December 1972 and May 25, 1994, if not sentenced to death, were eligible for parole after twenty five years in prison.  For those convicted of first-degree murders that occurred after May 25, 1994, the only two possible punishments are death and LWOP.[3]  To the degree that jurors are concerned that 25 years in prison is too lenient a punishment, or those who fear that murderers who are released after 25 years in prison will constitute a serious threat to the safety of our communities, the LWOP option seems to have lessened the zeal for the death penalty.[4]  Public opinion polls have also shown that support for the death penalty declines markedly given the alternative of LWOP.

     One lesson for defense attorneys here is to make sure that jurors know that once they have found a defendant guilty of first-degree murder, they have already made the decision that she or he will die in prison.  Of course, the jurors may not really believe this, so attorneys need to think of ways to have different people remind them, in different ways, that LWOP means LWOP.  They also need to be reminded that executive clemency in such cases is extremely rare.  I am aware of only three people who were convicted of first-degree murder in Florida since 1972 who were released early by order of various governors and state clemency boards.

     In practical terms, the shift from a 25 minimum-mandatory has had little effect on the lives of prisoners.  The first group of people sentenced to life under Florida's post-Furman statute became eligible for parole in 1998, and only a couple have been released.  To my knowledge, only one ex-death row inmate in Florida has been released after completing his mandatory 25 year minimum: Thomas Halliwell.[5]

D.  Public Opinion

     But more importantly than LWOP has been a change in public opinion.  Public support for the death penalty in the United States, according to Gallup Polls, peaked in 1994 at 80 percent, and by March 2001 had fallen to 67 percent.[6]  More importantly for states such as Florida and Colorado where people convicted of first degree murder are sentenced to Life Without Parole if not sentenced to death, only 54 percent of all Americans support the death penalty over LWOP.  An ABC/Washington Post Poll taken in April found 63% support for the death penalty, but this falls to 46% given LWOP.[7]  A survey by the Florida Lauderdale Sun-Sentinel last August found that only 45 percent of Floridians support the death penalty given LWOP.[8]  In short, given that Florida has LWOP, I am happy to report that today a minority of Floridians support the death penalty under its present statutory parameters.

     There is also strong support for a total moratorium on executions.  A national poll taken last September, conducted by a joint group of Democratic and Republican pollsters, found that 64 percent of the respondents supported a moratorium on executions, at least until issues relating to its fairness could be resolved.  A March 2001 Gallup survey on the same issue found that 53 percent supported a moratorium.  And in Florida, readers of the normally-conservative Orlando Sentinel were stunned to wake up on August 19 and find an editorial calling for a moratorium on executions.

     Changes in public opinion can also present some new challenges for defense attorneys in capital cases.  Public Defender Lewis Buzzell reports that he recently did a capital case in Jacksonville in which 17 of the 60 potential jurors were excluded during voir dire because of opposition to the death penalty.  Because the majority of those excluded were African Americans, this new trend has important racial implications.

E.  Guilty Pleas and Waiver of Jury Recommendations

     LWOP is indeed a mixed blessing.  Clearly some people are sentenced to LWOP who, given the prior option of 25-year minimum mandatory, would have been sentenced to death.  But there are many more others who, given no change in the statute, would today be getting 25 year minimum sentences but are instead being given LWOP.  So, LWOP may reduce sentences for a couple of dozen people per year who would have been sentenced to death, but it is increasing the sentence for far more people.

     Until a more general effort to improve prison conditions is successful, LWOP is also a penalty that is designed to accentuate hopelessness.  Consequently, we have seen a growing problem of defendants who either couldn't care less whether they are sentenced to LWOP or death, or who, like Timothy McVeigh, actually prefer death.  Since January 1, 1995, there have been at least 14 defendants sentenced to death in Florida after entering guilty pleas to first-degree murder.  Only one is African American.

1.   04-12-95  Michael Robinson    White

2.   04-18-95  Edward James        White

3.   02-16-96  Bobby Raleigh       White

4.   03-04-96  Dan Hauser          White

5.   04-19-96  Edward Zakrzewski   White

6.   09-06-96  Gary Bowles         White

7.   02-27-98  Roderick Ferrell    White

8.   07-10-98  Michael Griffin     White

9.   02-11-00  Arthur Barnhill     Black

10.  08-15-00  Jonathan Lawrence   White

11.  11-01-00  Glenn Ocha          White

12.  11-21-00  Jeremiah Rodgers    White

13.  04-03-01  Richard Lynch       White

14.  08-31-01  Thomas Thibault     White

To be sure, there is no one reason why people plead guilty to capital murder.  Some may do so at the urging of their attorneys.  Some may want to throw themselves to the mercy of the jury and judge, and later learn that there is no mercy to be had.  On the other hand, some are severely mentally ill or suffering from depression or post-traumatic stress disorder.  Some may want to make a political statement.  But at the end of the day, some simply do not want to do LWOP.

     In addition, since January 1, 1995, there have been eleven death sentences imposed on ten defendants who waived a jury recommendation.  Again, some may do so at the urging of counsel, but others do so out of despair and not-so-hidden suicidal wishes.  All but two of these defendants are white:

                                        Race      Plea

1.  04-12-95   Michael Robinson         White     Guilty

2.  03-04-96   Dan Hauser               White     Guilty

3.  12-27-96   James Guzman             White     Not Guilty

4.  08-15-97   Michael Robinson         White     Remand

5.  05-29-98   Ronald Knight            White     Not Guilty

6.  07-10-98   Michael Griffin          White     Guilty

7.  02-23-99   Byron Bryant             Black     Not Guilty

8.  06-23-00   Anthony Spann            Black     Not Guilty

9.  11-01-00   Glenn Ocha               White     Guilty

10. 02-06-01   Jeffrey Hutchinson       White     Not Guilty

11. 04-03-01   Richard Lynch            White     Guilty

     Of special interest here are the five inmates, all white, who both pleaded guilty and waived a sentencing recommendation.  Michael Robinson and Dan Hauser asked for a death sentence, clearly stating that they preferred death to LWOP.  Indeed, in August 2000 Hauser's wish to be executed was granted.  Richard Lynch admitted killing a mother and child in Sanford, making a jury recommendation of death a near certainty.  With abundant mental health mitigation, he and his attorneys felt he had a better chance for a life sentence if he went before Judge O.H. Eaton[9] without a jury recommendation.  Glen Ocha, now known as Raven Raven, has a long history of suicidal behavior, and called his death sentence "justice for [the victim]."

     In addition, three inmates have been executed in Florida in the last decade after dismissing their defense attorneys and dropping their appeals: Michael Durocher (8-25-93), Dan Hauser (8-25-00), and Edward Castro (12-07-00).  Each was white.

F.  Overrides

     Since 1973 there have been 166 death sentences imposed in Florida after juries recommended a sentence of life imprisonment.  There were a dozen overrides in both 1980 and 1983, and the number of overrides also hit double figures in 1974, 1976, 1978, 1982, 1986, and 1989 (see Table 2).  However, since January 1, 1995, there have been only six override cases in Florida, an average of one per year:

02-17-95  Cruz Marta-Rodriguez     Reduced to Life[10]

11-27-95  Dwight Harrison          Died -- Natural causes

07-15-96  Michael Keen             Conviction vacated[11]

04-22-96  Edward Zakrzewski        Affirmed on direct appeal[12]

03-13-98  Joseph Ramirez           Conviction Vacated[13]

08-27-99  Jeffrey Weaver           Pending Direct Appeal

G.  Death Votes and Direct Appeal Decisions

     In addition to the jury's vote on whether to impose a death or life sentence, the number of votes for death (in cases where the majority voted for death) is an important correlate of decisions in capital cases by the Florida Supreme Court.  Through the end of 2000, there had been 819 post-Furman cases decided by the Florida Supreme Court on direct appeal in which a defendant was sentenced to death following a jury recommendation of death.  In 31 of those cases, the death sentence was reimposed by the trial court after a remand ordered by appellate courts (and there had been a jury recommendation of death in the original sentencing proceeding).  In 154 other cases, while it is known that the majority of the jury voted to recommend death, the exact vote is unknown.

     In the remaining 634 cases, 117 had seven jurors vote for death, 113 had 8 jurors vote for death, 117 had nine votes for death, 100 had 10 votes for death, 75 had eleven votes for death, and 112 had unanimous votes for death.  Further examination shows that the more votes for death, the higher the probability that the case will be affirmed by the Florida Supreme Court on direct appeal:

Jury Votes for Death    # of Cases % Affirmed on Direct Appeal

           7             117            .470

           8             113            .504

           9             117            .530

          10             100            .540

          11             75            .627

          12             112            .643

This analysis supports the observations of former Florida Attorney General Robert Shevin, who, as a member of the Supreme Court Workload Commission, earlier this year urged the legislature to require unanimous, or at least "super-majority" 9-3 votes, before a death sentence could be imposed.  This, argued Shevin, would weed out cases from the Florida Supreme Court's workload that ultimately are likely to be reduced to life.  Although Shevin's proposal was defeated 6-3, the panel did unanimously recommend that the legislature give more study to the issue.[14]  That, of course, is the last we have heard of it.

H.  Race Issues

     Table 3 lists the names of the 51 people executed in Florida since 1979, their races, and the races of their victims.  Florida, which in the early 1980s was the top executing state in the U.S., lost that dubious distinction to Texas, and then quickly fell into third place behind Virginia, and now, since July 11, 2001, is tied for Missouri for third place.[15]

     Unfortunately, in-depth research on homicide in Florida is all but impossible, as there are no reliable homicide statistics from 1988, 1989, 1990, or 1991, and the data from 1996 and 1997 are available only in an archaic computer program that no one can read.  Nevertheless, the data that are available indicate that one way to distinguish the 51 from the thousands of other murders in Florida is race of the victim.

     In the dozen years ending in 1987, approximately 53 percent of those murdered in Florida were white, and 47 percent were black.[16]  With no recent data, we can only assume that these racial breakdowns have not changed.  However, as Table 3 suggests, judges and juries in Florida are very reluctant to sentence to death people who have murdered African Americans.  Only 6 of the 51 people executed in Florida over the past 25 years were executed for killing blacks.  African Americans are 47 percent of the homicide victims in Florida, but only 12 percent of those executed were convicted of killing blacks.  Each of the six people executed for killing blacks was themselves black.  No white person has ever been executed in the history of the state of Florida for killing an African American.

     Of the six, two received jury recommendations of life imprisonment.  Of the four people executed in Florida since 1976 with jury recommendations of life, two were defendants with black victims.

     It is also interesting to note that each of the six cases where people were executed for killing blacks were unusually aggravated or contained other circumstances that help explain the death sentence.  James Dupree Henry was executed in 1984 for killing one of the most prominent black citizens in Central Florida.  He also slightly wounded a white police officer when being arrested.  When a colleague and I examined the articles in the Orlando Sentinel about the case from the time of the murder to the time Henry was sentenced to death, we found that 61 percent of the coverage was about the wounded police officer, and only 28 percent was devoted to the murdered black man.  Beauford White and Marvin Francois were codefendants executed for killing blacks; in this case they were convicted of killing six people.  Pedro Medina, who was executed despite pleas from the daughter of the victim and doubts about his guilt expressed by her and three members of the Florida Supreme Court.  Medina was not only black but also a Mariel refugee, giving him an especially low status in the minds of predominately white prosecutors and jurors.  Bobbie Francis was convicted of torturing and shooting a confidential police informant in 1975 in Key West.  The last person executed for killing a black person was Bennie Demps, who was convicted on questionable evidence of a prison murder and executed last summer.  Demps had been on death row in 1972 when all death sentences in Florida were vacated.

     Table 4 shows that there has been some modest increase in death sentences for those who kill blacks, although it is clear that the reluctance to sentence people to death for killing African Americans in Florida continues to the present day.  Excluding those who killed Hispanics, other minorities, and multiple victims with mixed races, we can see that during the 1970s about 90 percent of those sentenced to death were convicted of killing whites.  This dropped to 86 percent of all death sentences handed down from 1981 through 1990, and 78 percent of the death sentences from 1991 through 2000.  So, our best estimates are that today, whites are just over half of the homicide victims in Florida (53 percent), but over 3/4 of the death sentences, not 1/2, are imposed on those convicted of killing whites.

I.  Innocence

     Some two decades ago, Professor Hugo Adam Bedau and I began to compile a list of all prisoners released from American death rows because of doubts about guilt.[17]  That list is now updated by the Death Penalty Information Center in Washington, which uses slightly different criteria: they no longer include cases in which a person is freed from death row following a forced guilty plea to the homicide in exchange for time served.  In any event, that list now includes 98 cases.  With 21 of the 98 cases, Florida by far leads the U.S. in the number of innocent people sentenced to death.  Illinois, with 13 cases, is in second place, and there the 13 cases were sufficient for the governor to call a moratorium on executions until their whole death sentencing system, from top to bottom, could be more closely examined.

     Table 5 lists the Florida cases.  Note that in addition to the 21 cases included by the Death Penalty Information Center, I also include the Florida cases of Sunny Jacobs and Joe Spaziano.  And, if Governor Bush is sincerely interested in testing his belief that everyone executed in Florida was unquestionably guilty, I urge him to look into the case of Jesse Tafero, whose evidence of innocence is even stronger than that of Medina and Demps.

J.  The Bigger Picture

     At the same time when the executioner in Florida is falling into disrepute, I think it is important to recognize that this fall from grace is happening elsewhere as well.  When one steps back and takes a long-term historical perspective, it is clear that the death penalty has been in a gradual, worldwide decline for almost 200 years.  In 1800 in England there were over 200 capital offenses, many of which carried mandatory death sentences.  Until 75 years ago public hangings in the U.S. were widespread, and little concern was voiced when executions were botched and the condemned inmate suffered a long and painful death.  Only in the past three decades have appeals in state and federal courts become common in capital cases.

     The trend toward universal abolition of the death penalty has continued during the past decade at an unprecedented speed.  According to Amnesty International Report, 2001, between 1985 and the end of 2000, more than 40 countries abolished the death penalty.  By the end of the twentieth century, some 108 countries had abolished the death penalty either totally or in practice.  On May 28, 2001, Chile added itself to this list, and on June 7 voters in Ireland, by a 62-37 margin, passed a constitutional amendment prohibiting the death penalty.  In April the U.N. Commission on Human Rights in Geneva renewed its call for a worldwide moratorium on executions, joining a similar call made last December by Secretary General Kofi Annan.  On June 25, 2001, the Council of Europe called on the United States and Japan to abolish the death penalty, stating that the formal "observer" status given to these two countries in the Council of Europe's Parliamentary Association would be revoked if there was no significant progress moving toward abolition by the end of next year.  Today, approximately 88 percent of all known executions are carried out by only four countries -- China, Iran, Saudi Arabia, and the United States.  So, with the exception of a small handful of human rights renegades, progress toward abolition has been widespread.

     Even in the U.S., there are encouraging signs for those who oppose the death penalty.  In the past two years, calls for moratoria in Nebraska, Illinois, and New Hampshire have met with some success.  As I mentioned earlier, public support for the death penalty appears to have peaked, and has now dropped to a point where, given life without parole, friends and foes of the death penalty appear in roughly equal numbers.

     More subtle moves toward abolition can also be discerned.  Not the least of these involves changes in death penalty rhetoric.  Consider how the death penalty was argued in 1976, when the Supreme Court reversed course and gave its stamp of approval to several new death penalty statutes, with the way that it is argued today.

     In 1976, public opinion polls revealed that the main reason why Americans supported the death penalty was deterrence.  Since then, in part because of life-without-parole alternatives, fewer and fewer Americans (and even politicians) cling to this archaic belief.  Similarly, the friends of the executioner in 1976 were constantly arguing that the death penalty would save taxpayers money, or that God was pro-death penalty, or that the possibility of racial bias or the execution of the innocent was, if anything, minuscule.  Today, supporters of a deterrence hypothesis ("Respect life, or I will kill you") are few and far between, and death penalty proponents and abolitionists agree that it is costly, applied unequally, and that once in awhile, innocent people will be executed.

     Today the main argument voiced in support of the death penalty is pure retribution.  Even retributive arguments, however, may have peaked.  In the not-so-recent past, politicians seeking office could all but say, "I'll kill for this job," and "Vote for me and I will kill more than my opponent."  In contrast, by 2000, candidate George Bush could not, and did not, use his extraordinary love for the executioner as a reason to vote for him (too bad that Al Gore did not have the wisdom or courage to use the Bush record against him).  Similarly, the unbridled pro-death rhetoric we saw a decade ago in gubernatorial elections has all but disappeared.  To be sure, few politicians are running on anti-death penalty platforms, but the decline in pro-death penalty oratory is unquestionably a step in the right direction.

     How much of a punishment or a reward anyone "deserves" is virtually impossible to reliably calculate, and just because a person "deserves" something, it does not mean s/he will get it.  For criminals, the question of just deserts is basically a moral question.  With more and more religious organizations asking their members to give renewed thought to the morality of the death penalty, those who oppose the death penalty will have an advantage in future conversations about "just deserts."  The question is gradually shifting from "who deserves to die," to "who deserves to kill."

     In the next few years, I believe, more and more political conservatives will be joining the calls for moratoria.  They will join such conservatives as George Will, Pat Robertson, Oliver North, and the Pope (who has been called many things, but never "a liberal."  Using their existing support for greater religious and moral authority, fiscal austerity, and healthy skepticism for government-run programs (e.g., welfare and the post office), more conservative Americans may very well find that they have much in common with more traditional anti-death penalty groups.  If that indeed happens, the death of the death penalty could soon take place.

                             Table 1

 

          First-Time Death Sentences in Florida By Year

                            1972-2001

 

 

1972   1                         1986  43

1973  11                         1987  46

1974  26                         1988  42

1975  30  Average 1973-75: 22.3  1989  38

1976  30                         1990  30  Average 1986-90: 39.8

1977  27                         1991  47

1978  35                         1992  31

1979  21                         1993  38

1980  31  Average 1976-80: 28.8  1994  39

1981  25                         1995  35  Average 1991-95: 38

1982  37                         1996  26

1983  38                         1997  20

1984  38                         1998  24

1985  27  Average 1981-85: 33    1999  21

                                 2000  22 Average 1996-2000: 22.6

                                 2001  15

                               

                             Table 2

 

    Death Sentences Imposed After Jury Recommendation of Life

                            1976-2001

                             (N=166)

 

 

 

1973     6                    1988     7

1974    10                    1989    10

1975     5                    1990     3

1976    10                    1991     7

1977     3                    1992     3

1978    11                    1993     3

1979     6                    1994     4

1980    12                    1995     2

1981     7                    1996     2

1982    10                    1997     0

1983    12                    1998     1

1984     5                    1999     1

1985     9                    2000     0

1986    10                    2001     0

1987     7                   

                             Table 3

 

 

                  Florida Executions Since 1979

 

 

1.   05-05-79  John Spenkelink     W-W

2.   11-30-83  Bob Sullivan        W-W

3.   01-26-84  Anthony Antone      W-W

4.   04-05-84  Arthur Goode        W-W

5.   05-10-84  James Adams         B-W

6.   06-10-84  Carl Shriner        W-W

7.   07-13-84  David Washington    B-W&B

8.   09-07-84  Ernie Dobbert*      W-W

9.   09-20-84  James Dupree Henry  B-B

10.  11-08-84  Timothy Palmes      W-W

11.  01-30-85  J.D. Raulerson      W-W

12.  03-06-85  Johnny Witt         W-W

13.  05-29-85  Marvin Francois     B-B

14.  04-15-86  Daniel Thomas       B-W

15.  04-22-86  David Funchess      B-W

16.  05-20-86  Ronald Straight     W-W

17.  08-28-87  Beauford White*     B-B

18.  03-15-88  Willie Darden       B-W

19.  11-07-88  Jeffrey Daugherty   W-W

20.  01-24-89  Theodore Bundy      W-W

21.  05-04-89  Aubrey Adams        W-W

22.  05-04-90  Jesse Tafero        W-W

23.  07-27-90  Anthony Bertolotti  B-W

24.  09-21-90  James Hamlin        W-W

25.  11-19-90  Ray Clark           W-W

26.  04-24-91  Roy Harich          W-W

27.  06-25-91  Bobby Francis*      B-B

28.  05-12-92  Nollie Martin       W-W

29.  07-21-92  Ed Kennedy          B-W

30.  04-21-93  Robert Henderson    W-W

31.  05-05-93  Larry Joe Johnson   W-W

32.  08-25-93  Michael Durocher    W-W  Consensual

33.  04-22-94  Roy Stewart         W-W

34.  07-18-95  Bernard Bolander*   W-W (Hispanic victim)

35.  12-04-95  Jerry White         B-W

36.  12-05-95  Philip Atkins       W-W

37.  10-21-96  John Bush           B-W

38.  12-06-96  John Mills          B-W

39.  03-25-97  Pedro Medina        B-B

40.  03-23-98  Gerald Stano        W-W

41.  03-24-98 Leo Jones           B-W

42.  03-30-98  Judy Buenoano       W-W

43.  03-31-98  Daniel Remetta      NA-W

 

44.  07-08-99  Allen Davis         W-W

45.  02-23-00  Terry Sims          W-W

46.  02-24-00  Anthony Bryan       W-W

47.  06-07-00  Bennie Demps        B-B

48.  06-21-00  Thomas Provanzano   W-W

49.  08-25-00  Dan Hauser          W-W  Consensual

50.  12-07-00  Ed Castro           W-W  Consensual

51.  01-12-01  Robert Glock        W-W

 

 

 

1 Woman

 

W-W: 33

B-W: 11

B-B:  6

Native American-White: 1

 

White Victim: 45/51 (.88)

Black Victim: 6/51  (.12)

 

*Jury Recommendation=Life (N=4)

                             Table 4

 

            Florida Death Sentencing by Victims' Races

                            1973-2000

 

 

          WHITE     BLACK                    (EXCLUDED)

YEAR      VICTIM    VICTIM    % WHITE VIC.   OTHER VIC.[18]

 

1973      11        0             100

1974      24        1         24/25  .96     1 HV

1975      28        2         28/30  .933

1976      24        3         24/27  .888    1 HV; 1 MV

1977      26        0             100        1 HV

1978      28        5         28/33  .849    1 HV; 1 OV

1979      17        3         17/20  .85     1 OV

1980      25        3         25/28  .893    3 HV

1981      15        8         15/23  .652    2 HV

1982      30        5         30/35  .857    2 HV

1983      34        4         34/39  .872