Published Monday, June 30, 2008

In April, the U.S. Supreme Court found that the method of lethal injection utilized by Florida, among other states, does not violate the Constitution’s prohibition against cruel and unusual punishment.

That should not be the end of the conversation.

Reasonable men and women of all political affiliations, faiths, and professional backgrounds have disagreed for decades about the morality of executing those who commit heinous crimes. As a former prosecutor, defense attorney, trial judge and chief justice of the Florida Supreme Court, I have been involved in 1,200 capital cases and can personally attest to the complexity and uncertainty of that debate. Remarkably, the same individuals who agree on little else are beginning to find one piece of common ground: the belief that Florida’s system of capital punishment is broken.

Today, Florida is scheduled to conduct its first execution since former Gov. Jeb Bush implemented a moratorium in 2006. Indefinitely stopping all executions was the only responsible decision after an execution was botched so badly that it took twice the normal dosage of the lethal chemical cocktail and more than half an hour to kill Angel Diaz.
Sadly, the mismanagement of the actual act of executing somebody is only one among many problems with Florida’s capital punishment system. Our state’s failure to provide the due process protections needed to ensure that we are convicting and punishing the right people benefits no one: not family members of murder victims, not capital defendants, and not the public at large. Too many of these cases are overturned for serious errors, cases take too long to resolve, and Florida has become the holder of a dubious distinction: more individuals convicted of murder — 22 — have been exonerated from our death row than any other in the country.

One of those individuals was Frank Lee Smith, who was convicted in 1985 of rape and murder. He succumbed to cancer and died in prison after serving more than 14 years on Florida’s death row. After his death, he was cleared of all charges by DNA evidence that identified a different man as the perpetrator.

Mistakes in identification and prosecution of defendants are compounded by Florida’s woefully inadequate system of providing those accused of capital crimes with representation at trial. The bar for inclusion in Florida’s Capital Collateral Registry — a list of attorneys available to try capital cases — is set embarrassingly low, and requires very little of participating attorneys. The inadequate standards fall far short of the bare minimum qualifications established by the American Bar Association. Current Florida Supreme Court Justice Raoul G. Cantero III recently testified before the Florida Commission on Capital Cases that the representation provided by these attorneys is “some of the worst lawyering” he has ever seen.

It is tempting to think of providing good lawyers to the accused and DNA testing to the convicted as the maneuverings of those who sympathize with our state’s worst criminals, or as the actions of those who are “soft on crime.” Quite the contrary, the safety of our communities depends on arresting, convicting and punishing the actual perpetrator of a crime, feats which require a competent justice system from beginning to end. When we fail to discharge those basic responsibilities, the actual rapist or murderer is left free to commit further acts of senseless violence.

The Constitution Project’s bipartisan Death Penalty Committee — a coalition of judges, prosecutors, defense attorneys and victim advocates, including supporters and opponents of the death penalty alike — has produced more than 20 recommendations for the reform of the capital punishment system, including access to DNA testing and competent counsel. There is much that can be done to improve Florida’s system of capital punishment, and adopting those recommendations should be the first step.

In the meantime, Gov. Crist should order a stay of all executions pending a statewide review of his state’s death penalty. His constituents should demand no less.

Gerald Kogan served as a justice of the Florida Supreme Court from 1987 to 1998. He is currently a co-chair of the Constitution Project’s bipartisan Death Penalty Committee.

© 2008 • All Rights Reserved • St. Petersburg Times

Gov. Charlie Crist and Attorney General Bill McCollum both say that favorable court rulings in the Schwab case — and that his lethal injection went off without incident — mean more frequent executions. Both Crist and McCollum said more timely executions represent greater justice for victims.

Since 2004, 62 prisoners were added to death row. In that same time, the state has carried out eight executions. In part, that’s because of an 18-month hiatus when the state’s lethal-injection methods were studied, changed and vetted by the courts, a gap that ended with Schwab’s execution.

“It would be realistic to assume the pace will pick up and Florida will be conducting executions more frequently, as it should be,” said state Sen. Victor Crist, a Tampa Republican and an architect of the state’s system for representing death-penalty defendants and a part of legislative efforts to set execution methods.

A spokeswoman for McCollum said state and federal court decisions in Schwab’s case mean the state is on firm legal ground to initiate further executions with the lethal-injection procedures now in place.

Now, Victor Crist said, it depends on the governor.

“We could do one a month if he wanted to,” Victor Crist said.

Another lawmaker on the state’s Commission on Capital Cases said it’s more likely Florida will have regular executions without a rush of them.

“I think you will still see a slow march toward the death penalty,” said state Sen. Dave Aronberg, a Greenacres Democrat. “I don’t think you’re going to see a run on the death penalty, I think you will see it used but used judiciously. The Schwab case was evidence of that. This was a case that deserved capital punishment.”

We continue to be hopeful and will keep you apprised as things develop.

Sheila Meehan
Chair, TCADP

Despite appeals filed this week on behalf of Mark Schwab, things do not look promising. He is scheduled to be killed on Tuesday, July 1st at 6:00 p.m.

We will gather in front of the Governor’s mansion on Tuesday at 5:45 p.m. for a vigil for Mark.

On Wednesday, July 2, please join us at 12 noon at the Capital Rotunda for a memorial service for Mark Schwab and his victim, Junny Rios-Martinez.

Sheila Meehan
Chair, TCADP

Panel

Audience

Dear friends,
Late last year, executions in Florida were put on hold because of the flawed
process of lethal injection.  Now that a government commission has reviewed the lethal injection process (www.fadp.org, Governor’s Commission on the Administrationof Lethal Injection Releases Report), Florida needs to continue the time-out on executions and review the entire death penalty system and all of its flaws.

YOUR involvement is critical to halt executions and study the capital punishment system!
TWO THINGS YOU CAN DO TODAY:
Choose one, or both if you can!

**********************************
1. Write letters, emails, and call Governor Charlie Crist to tell him to
maintain the current time-out on executions and do a thorough study of the death penalty. (See AP article below about the need for communication with Crist)
2. Forward this alert to a friend (or five!) and have them contact Governor
Crist too!
***********************************

COMMUNICATIONS WITH GOVERNOR CRIST

Each one of us can make a difference!  This is about quantity.  Shortletters
(even 2-3 sentences) are great!  See talking points below for ideas.

ADDRESS:
Gov. Charlie Crist
The Capitol
400 S. Monroe St.
Tallahassee, FL  32399

PHONE: 850-488-7146
FAX: 850-487-0801

EMAIL: Charlie.Crist@myflorida.com
**********************************************
TALKING POINTS:
Pick what resonates with you–
Thank you for launching an Open Government study of the method and protocols of lethal injection and the circumstances involving the December 15th execution of Angel Diaz.  It is clear that the protocols need to be rewritten, and any process moving forward should ensure that the new protocols are thoughtfully developed and properly vetted through a public process that allows the citizens of Florida to understand clearly this uniquely serious action that the State takes.

Lethal injection involves a medical procedure and should be overseen by
well-trained medical professionals. Florida’s Death penalty lawyers are untrained and under funded.  The performance of appointed lawyers in Florida has been criticized on numerous occasions, including by the Florida Supreme Court.  Some lawyers have little or no experience in death penalty cases and do not raise the correct issues in trials.

Since 1973, 123 death row inmates have been released after evidence proved they were innocent, including 22 in Florida.  We need to figure out what’s gone wrong in these cases so we do not risk executing an innocent person.
The death penalty in Florida costs $51 million a year above and beyond what it would cost to sentence defendants to life without the possibility of parole.  Can we really afford such a wasteful system?  And aren’t our valuable tax dollars better spent on a measures that would prevent violent crimes?

To be meaningful, justice should be swift and sure.  The death penalty is
neither.  Capital punishment prolongs pain for victims’ families, dragging them through an agonizing and lengthy process that holds out the promise of one punishment in the beginning and usually results in a life sentence in the end anyway.

Since 1979, when Florida reinstated the death penalty, none of the 60 executed have been white defendants who killed black victims, and although numerous commissions and task forces have studied and made recommendations to address racial and geographical bias in Florida’s death penalty law, few of those recommendations have been implemented.

The American Bar Association assessment report found that Florida’s system is plagued with problems that can lead to wrongful convictions, such as access to DNA testing, the preservation of evidence, and eye witness identification procedures, including lineups and interrogation procedures that increase the likelihood of false confessions.

**AP Article outlining the need for communication to Governor Crist:

February 27, 2007
OHIO - In one of the nation’s busiest death penalty states, letters to Ohio Gov. Ted Strickland are running almost 5-to-1 in favor of ending capital punishment or temporarily stopping it to study the system.
Strickland supports the death penalty, but almost immediately after taking office, he delayed the executions of three condemned killers while he reviewed their cases.

The decision resonated in Ohio, where former Gov. Bob Taft let 24 executions proceed with little hesitation.
An Associated Press review of correspondence Strickland received since his
election and running through Feb. 15 found 125 letters or e-mails from death penalty opponents.
…In FLORIDA, newly elected Gov. Charlie Crist, a Republican and death penalty supporter, has received only 22 letters and e-mails split evenly between capital punishment backers and opponents.

“I wouldn’t say we felt like it was high or low,” Crist spokeswoman Kathy Torian said.
Florida executed 21 inmates under Crist’s predecessor, Republican Jeb Bush. The state has a temporary moratorium on executions while a commission studies whether changes are needed in the way the state carries out the death penalty.

Bush created the commission after December’s botched execution of Angel Nieves Diaz, who survived for more than a half hour after being given two doses of the lethal injection drugs.

*******************************************

Mark Elliott
State Death Penalty Abolitionist
Amnesty Internqational USA

“The time is always right to do what is right.” Martin Luther King

A perfect storm of problematic executions, wrongful convictions and recent court rulings against the practice of lethal injection has led a growing number of states to challenge the death penalty through lawsuits and legislative action.

Adding still more to the momentum are a public backlash against the cost of capital cases and the development of more effective defense techniques, such as mitigation specialists who humanize death row inmates.

Eleven states have halted some or all executions — including Florida and Maryland in December — and more lawmakers have been speaking out against the death penalty.

Last month alone, Maryland’s governor urged legislators to replace the death penalty with life without parole, North Carolina’s governor said executions should be halted until issu! es surr ounding lethal injection are solved and Montana’s Senate voted to abolish the death penalty.

Court decisions have also continued to come down, such as a Delaware judge granting class action status on Feb. 22 to all death row inmates based on a case challenging lethal injection. Jackson v. Danberg, No. Civ. 06-3000-SLR (D. Del.). “It’s probably the strongest momentum since the death penalty was reinstated in the mid-1970s,” said John Holdridge, director of the American Civil Liberties Union (ACLU) Capital Punishment Project, which advocates against the death penalty.

The Death Penalty Information Center recently listed the following 11 states as those that have stopped some or all executions: Arkansas, California, Delaware, Florida, Maryland, Missouri, New Jersey, North Carolina, Ohio, South Dakota and Tennessee, according to Richard Dieter, executive director of the nonprofit Washington, D.C.-based organization, which opposes capital punishment.

North! Caroli na’s officials were in talks last week in hopes of resolving the situation, and the state’s attorney general hinted on March 1 that a solution may be imminent. The executions have stopped either through government-issued moratoriums or judges’ rulings, and have had varying effect.

In South Dakota, for example, Gov. Mike Rounds on Feb. 23 signed legislation that clarifies the mixture of drugs to be used in executions, which is an issue that has delayed just one execution, said his press secretary, Mitch Krebs. The law goes in effect on July 1, and Krebs said other executions are expected to resume as scheduled.

Meanwhile, in New Jersey, executions have been on hold since January 2006, when the state Legislature appointed a commission to study the issue. This January, the group recommended the death penalty be abolished. Reverend M. William Howard of Bethany Baptist Church in Newark, N.J., who chaired the 13-member New Jersey Death Penalty Study Commission, agr! eed wit h speculation that the state could become the next to abolish the death penalty.

“I don’t think that’s a wild idea at all,” he said, pointing out that Gov. Jon Corzine has pledged to sign such legislation into law.

Tallahassee Citizens Against the Death Penalty
Contact:  Walter Moore, Chair
(850) 877-1609;  wl_moore@comcast.net
RESPONSE TO THE FINAL REPORT OF THE GOVERNOR’S COMMISSION ON THE               ADMINISTRATION OF LETHAL INJECTION

The more information our citizens have about the actual administration of the death penalty, the less comfortable they will be with capital punishment as public policy.  Because we believe that,  we welcome the work of the Governor’s Commission on the Administration of Lethal Injection, and we commend former Governor Bush for directing that the Commission be established.  Their open hearings and their published report have shed a bright light on the methods and protocols of lethal injection as it has been practiced in Florida. 

This week’s report on the circumstances surrounding the execution of Angel Nieves Diaz provides chilling evidence that much can go wrong in the administration of lethal injection.  The Commission found both that this execution reflected a failure to follow the established protocols and that the protocols themselves are inadequate and unreliable.   Indeed, the Commission was unable to conclude that Mr. Diaz was not subjected to cruel and unusual punishment during his execution.  We fully agree with the statement of the American Civil Liberties Union that “the main lesson of these hearings and the flawed execution that led to the commission’s creation is that developing a lethal injection protocol requires scientific and medical expertise as well as careful and open deliberation.”

Quite apart from considering other flaws in the administration of the death penalty, the work of the Governor’s Commission demonstrates that the issue of lethal injection alone calls for much more examination than it has received to this time.  For all Floridians, this report raises anew the question whether, and why, we should retain capital punishment as public policy.

This is no time for hasty governmental action.  We appeal to Governor Crist not to consider signing another death warrant until all issues surrounding the administration of lethal injection have received a thorough examination.

Florida’s citizens are watching.  Officials in other states, struggling with the same issues, are watching.  The world is watching.

TALLAHASSEE — Florida’s executioners need better training, and the mix of chemicals now used in lethal injections should be re-evaluated, a commission charged with reviewing a botched December execution said in a report released Thursday.

Sentenced to die for the murder of a Miami topless-bar manager, Angel Diaz took 34 minutes to die — about twice the normal time. It also took two doses of lethal drugs to kill him.

In its report, the commission set up by former Gov. Jeb Bush was unable to determine whether Diaz, as some witnesses testified, was in pain before he died Dec. 13. But the 11-member panel said prison officials should make sure an inmate is unconscious from the first dose of sedatives before being given drugs des! igned t o paralyze the lungs and then cause a heart attack.

Gov. Charlie Crist thanked the commission for a “thorough review,” and said he will work with corrections officials and the Legislature to “ensure the most humane procedures possible.”

The report was praised by Amnesty International and the American Civil Liberties Union for “raising the veil” on Florida’s lethal-injection procedures, which until now have not been publicly disclosed in detail.

“The commission’s findings should give pause to those who assume that the process is orderly, controlled or humane,” said Sue Gunawardena-Vaughn, director of Amnesty International USA’s program to abolish the death penalty. She voiced hopes the report will encourage a re-examination of the death-penalty system.

Bush ordered a moratorium on Florida executions until the commission submitted its final report. Crist gave no indication Thursday as to when he might begin signing death warrants.

While ! the com mission did not formally recommend that Florida change the ingredients in the toxic mixture it now uses in executions, it strongly suggested the state explore “other more recently developed chemicals” and re-evaluate the need for a paralytic drug like pancuronium bromide, which is now the second drug administered.

An anesthesiologist testified before the commission that the drug can leave an improperly sedated inmate in intense pain without being able to express it.

Witnesses said Diaz appeared to be awake, in pain and gasping for breath after the drugs were administered. An autopsy revealed the chemicals had gone into his tissue, not his veins, because of improperly inserted intravenous needles in both arms.

The report calls for better training of execution teams, better communication between them and the warden, closer monitoring of the inmate and a better method for insuring intravenous lines remain in place.

Florida Lethal Injection Commission’s Findings “Should Give Pause to Those Who Assume That the Process is Orderly,” Says Amnesty International

In response to the findings of the Florida Governor’s Commission on the Administration of Lethal Injection, Sue Gunawardena-Vaughn, Director of Amnesty International USA’s Program to Abolish the Death Penalty, issued the following statement:

“Amnesty International is encouraged by the findings and recommendations of the Governor’s Commission on the Administration of Lethal Injection and by the openness of the Commission’s hearings on Florida’s lethal injection practices.  The actual practice of lethal injection has hidden for too long behind a veil of secrecy and vague legislative wording that fails to convey what actually occurs in the death chamber.  By holding open hearings and recommending that the governor reconsider the appropriateness of the three-drug combination commonly used throughout the United States, the Commission has taken a step in the right direction.

“Although the Commission’s mission did not include reviewing the decisions to enact the death penalty or provide for executions by lethal injection, the Commission’s findings should give pause to those who assume that the process is orderly, controlled or humane. Amnesty International hopes that the Commission’s report will encourage legislators throughout the country to re-examine both the secretive machinery of death and the wisdom of the death penalty.  Today’s report is just one more indication that the death penalty system is fundamentally broken. Lawmakers should abolish this outdated practice once and for all.”

For more information, see: www.amnestyusa.org/abolish