Public Defenders Recommend Moratorium on Death Penalty

The Florida Bar News

February 1, 2009

By Kim MacQueen
Associate Editor

Florida’s public defenders have offered a controversial new idea for saving money during tight fiscal times: a moratorium on the death penalty. “This Legislature would be remiss not to look at the most costly, least cost-efficient service we provide: the death penalty,” 10th Circuit Assistant Public Defender Howard L. (Rex) Dimmig — speaking on behalf of the Florida Public Defender Association — told members of the Senate Criminal Justice and Judiciary committees gathered for the January special session in Tallahassee.Senate Criminal Justice Committee members did not offer immediate comment or reaction following Dimmig’s proposal, but Sen. Ted Deutch, D-Delray Beach, asked 13th Circuit State Attorney Mark Ober, who was also at the meeting, if he would support it.

“If you think about it, there are some real downsides to what they want to do,” Ober said, noting that was the first time he had heard of the proposal. “It’s really fraught with peril.”

Dimmig offered the following statistics on the death penalty:

• There are 391 people on death row in Florida.

• The average length of time between sentencing and execution is almost 14 years.

• Sixty-six people have been executed since Florida re-institutionalized the death penalty in 1979. Of those, nine have not exercised their right to appeal.

• Historically, more executions were performed in Florida in 1936 and 1942 (11 in each year) than in any other year. Even at that high rate, it would take decades to carry out the executions of the current death row population.

• Death penalty cases comprise just 12 percent of those heard by the Supreme Court, yet they take 50 percent of the court’s time, and 40 percent of oral argument time.

• Florida is an “outlier” state — the only one that does not require jury unanimity at any part of the death penalty sentencing phase.

• Aside from higher court costs and expenses for prosecutors and public defenders, housing inmates on death row, as opposed to housing them within the general prison population, costs Florida an additional $3.4 million per year.

• Seven former Supreme Court justices have expressed “a need for legislative reassessment and revision of Florida’s capital punishment statute.”

The proposed moratorium came up again when Jackson Flyte, with the Criminal Conflict and Civil Regional Counsel, Region Two, office addressed members of the Judiciary Committee.

“There are some issues we are going to have to address in terms of the death penalty,” Flyte said. “The death penalty is very expensive to do. I’m not saying we shouldn’t do it, but there are some changes needed.

“Trying to find someone to do death penalty on a state salary is very hard,” Flyte said, noting that CCRC salaries are capped at $100,000, while state attorneys and public defenders can pay up to $156,000. “We can’t compete.”

Flyte said his office “will have to ask for help on the death penalty. Slow it down, use it in (fewer) cases … something.”

Senate Judiciary Committee members offered only a little more reaction to the public defenders’ proposal than Criminal Justice Committee members had. Sen. Mike Haridopolos, R-Melbourne, asked Dimmig whether he has always opposed the death penalty.

“I am not a death penalty abolitionist,” said Dimmig, a former assistant state attorney who noted he has been involved in the prosecution of capital cases in the past. “My feelings now are based on the economic circumstances.

“This is not a discussion of the merits of the death penalty but of whether the economic circumstances merit a suspension or moratorium.”

Sen. Haridopolos asked Dimmig if he would be willing to work with the committee on the issue in the future; Dimmig indicated that he would.

Committee Chair Sen. Lee Constantine, R-Altamonte Springs, also sought clarification on the $3.4 million annual figure relating to housing death row inmates. Dimmig explained that is only part of the expense, and that costs begin rising the moment prosecutors file a notice of intent to seek the death penalty. He noted that when that notice is filed, early in a case, the public defender must immediately assign two lawyers, who meet the high standards required to try a capital case, to represent the defendant.

“The greatest expense to public defenders and state attorneys comes when there is an attempt to impose the death penalty… so the most effective thing would be a suspension of the death penalty.”