The price of life on Florida’s Death Row

The world is slowly moving to abolish the death penalty. Around the world, 140 countries have either abolished the punishment in law or in practice, not executing a prisoner in the past ten years. The majority of US states still permit the death penalty, but the total people sentenced to death in 2012 dropped below 100 for the first time since the late 1970s, and executions are slowing as well.

But not in Florida. The State of Florida has an unusual approach to the death penalty. They are the only state where a simple majority on a jury can vote to sentence a person to death. (In most states, unanimous agreement is required.) And they lead the nation in exonerations, where lawyers and activists uncover evidence that someone sentenced to death is innocent, according to an editorial in the Tampa Bay Times. (The figures in the editorial come from the Death Penalty Information Center, which lists 142 exonerations, with 24 from Florida.) In other words, Florida sentences a lot of people to death, and they seem to get it wrong quite often.

This situation is about to get worse. Emily Bazelon wrote a powerful article for Slate examining Florida’s new law, the “Timely Justice Act”, which requires the governor to sign death warrants within 30 days of an inmate’s final appeal, and requires the state to execute the condemned within 180 days of that warrant. That’s a lot quicker than executions are generally carried out. Inmates remain on death row in Florida for 13.2 years on average, less that the nationwide average of 14.8 years.

What’s the rush? The purpose of the bill, sponsors say, is to ensure that executions are carried out in a timely fashion, to increase public confidence in the judicial system. One of the sponsors of the bill, Florida Republican Matt Gaetz quipped, “Only God can judge. But we sure can set up the meeting.” But, as Bazelon points out, Florida’s death penalty system is so flawed that it often requires years to uncover evidence that would exonerate a death row inmate.

There’s a brutal logic behind Florida’s bill. The Death Penalty Information Center calculates that it costs Florida $51 million a year more than holding them for life, given the extra costs of extra security and maintenance costs for death row facilities. Shorter stays on death row equal lower costs – the only downside is the likelihood of killing people who might well be found innocent with years to explore their cases.

Consider the case of Clement Aguirre, on death row in Florida since 2006 for the 2004 murders of a mother and daughter found dead in their trailer home. DNA evidence obtained by the Innocence Project in 2011 strongly suggests that Aguirre is innocent of the murders, and he is still fighting to overturn his conviction.

Fixing Florida’s criminal justice system requires more than building opposition to the death penalty or funding reviews of death penalty cases through the Innocence Project. It requires providing high quality public defenders to those accused of crimes. Bazelon reports that Florida’s death penalty defenders are some of the worst in the nation, and have allowed clients to go to death row without ever meeting them or responding to their letters.

Unfortunately, this means spending more money on criminal justice, not less. Organizations like Gideon’s Promise are helping young lawyers become public defenders and trying to improve the profession. One modest saving grace in Florida’s atrocious law is modest funding for public defense in northern Florida, but it’s far less support than the state needs to ensure that people facing the death penalty get a fair trial.

I had a conversation the other day with advisors to Northeastern University’s NuLawLab, which is dedicated to the idea of providing affordable legal services to all 7 billion people on the planet. One of the advisors expressed interest in the idea that new data sets could help make the case that failing to provide people with adequate representation has higher costs than representing them well – i.e., someone who might have fought for their home with legal counsel ends up creating societal costs through needing housing assistance. I’m supportive of the concept, but I worry that such an economic analysis needs to incorporate human rights. It’s cheaper for Florida to fail to represent indigent defendants and rapidly push them to execution than it is to represent them well and give time for the Innocence Project and others to try to establish their innocence. The only cost is the lives of people unlucky enough to be innocent but convicted of murder in Florida.

I encountered Bazelon’s story through This American Life, which ran an excellent set of short, timely stories around the theme, “This Week”. I’m normally grumpy when TAL denies me the long-form stories I so love, but grateful they featured this story.