State rate of flawed death sentences criticized - February 11, 2002

    Florida is home to 5 of 15 counties that impose the death penalty most frequently across America, ranking it among a handful of states at highest risk for wrongful convictions and making it the nation's leader in sending innocent people to death row, a Columbia University Law School team has found in a massive study released today. Researchers found that in Florida and the nation, the more any state imposes capital punishment, the higher the number of ''marginal'' cases that get sucked into the system. Such ''heavy and indiscriminate use'' of the death penalty -- instead of reserving it for the ''worst of the worst''-- leads to disproportionately greater risks of serious reversible error, the study found.

"Over decades and across dozens of states, large numbers and proportions of capital verdicts have been reversed because of serious error,'' said Professor James Liebman, who oversaw the study. ``The capital system is collapsing under the weight of that error, and the risk of executing the innocent is high.''

innocence are most at risk in Florida, which has had more people removed from its Death Row following findings that they were not guilty than any other state. ''Florida Roulette,'' Liebman calls it, referring to the troubling case of Death Row inmate Frank Lee Smith, among others. Smith was exonerated in 2000 for the 1985 rape and murder of a Broward County girl after DNA evidence linked another man to the crime. But Smith's exoneration came 11 months after he died of cancer -- and after he lost multiple judicial appeals. The 430-page report, a follow-up to a first report issued in 2000, is titled ''A Broken System, Part II: Why there is so much error in capital cases and what can be done about it'' Researchers examined 23 years' worth of death penalty reversals in 34 states with capital punishment. Spokesmen for Gov. Jeb Bush and Miami-Dade State Attorney Katherine Fernanndez Rundle declined to comment on the report, saying their offices had not seen it. Florida had 889 death sentences imposed during the study period, from 1973 through 1995, ranking it 12th highest out of the 34 states. Of the 757 that were judicially reviewed, 75 % were reversed by state or federal courts.

THE FLORIDA COUNTIES

    During that time, Miami-Dade, Broward, Pinellas, Hillsborough and Duval counties ranked among the 15 counties that imposed the death penalty most frequently across America. In Miami-Dade, 103 people were sentenced to die. In Broward, 55 got the death penalty. The report found that the 10 U.S. counties with the highest death- sentencing rates -- including Pinellas and Hillsborough -- had an average capital error rate of 71 percent, while the 10 U.S. counties with the lowest death-sentencing rates had an average error rate of 41 %. The study is being released at a time when Florida's death penalty faces pressure from various fronts. The U.S. Supreme Court has postponed 2 Florida executions within the last three weeks. On Wednesday, Gov. Jeb Bush -- a death penalty advocate -- signed an order delaying another execution planned for the next day. The delays were granted because of an Arizona death penalty case pending before the high court that could have profound ramifications for 9 states -- including Florida, with its 372 death row inmates.

IMPLICATIONS

    If the Supreme Court rules in favor of Timothy Ring, the murder convict in the Arizona case, all 795 Death Row inmates in those 9 states could have their sentences commuted to life or could get new sentencing hearings. State legislators might also have to change their death sentencing laws. The issue the Supreme Court must decide is whether it is constitutional for a judge, rather than a jury, to decide the life-or-death sentence in a capital case. In Arizona, the trial judge makes that call while considering mitigating and aggravating circumstances, without input from a jury. In Florida, the judge also has final say, but the jury first makes a recommendation. For Florida, where judges run for office and are subject to pressures of all types, ''getting judges out of the sentencing business'' and leaving death penalty decisions to juries would certainly reduce a ''real risk factor for error,'' Liebman said, citing one of the report's suggested reforms. Race, politics and poorly performing law enforcement systems also pressure counties and states to overuse the death penalty, increasing the risk of wrongful convictions, the report found. More specifically, high-crime counties and states with larger black populations and where whites are at relatively high risk of homicide as compared to blacks have higher error rates in death cases, the study found.

LIKELIHOOD OF FLAWS

    Considering all the risk factors, researchers identified Florida, Georgia, Texas and Alabama as the states whose death sentences are most likely to be found ''seriously flawed by the courts,'' Liebman said. Jonathan Simon, a University of Miami School of Law professor who reviewed the study, said: ``You're looking at powerful political demands coming from white voters by and large to be tough on criminals, with frequent use of the death penalty in general. ``That translates down to the level of prosecutors -- who are elected in Florida -- and to police, who are both pressured to push more marginal cases. Those are the cases where mistakes are going to be very, very predictable. This study confirms that this is a real problem that needs fixing.'' With a de facto moratorium in place on Florida executions, legislators should use the ''time out'' to make fundamental changes to the state's death penalty law, heeding the report's findings, Simon said. ''For Florida, this study is a telegram, because we are it,'' Simon said. ``This is a place where the politics of the death penalty has been sending  the message for a long time that death penalties are the gold standard.  Getting death sentences is important for political careers.''

(source:  Miami Herald)

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