> This article is the feature in this week's Orlando
> Weekly. On the front cover is a full size caricature
> color drawing of George and Jeb Bush, smirking at each
> other, with George holding an oversized syringe, and
> Jeb holding an oversized electric plug. Both are
> poised ready to use their weapons of destruction.
> Both are wearing executioner's black masks pushed off
> their faces back onto their heads.
>
> (Illustration: Ron Borreson)
>
> karen koerner crane
> AI-Florida SDPAC
> ===================================================
>
> EXECUTION OF JUSTICE
>
> By Michael King
> Published 1/13/00
>
> Texas, according to writer Molly Ivins, is the
> National Laboratory for Bad Government, where they
> pride themselves on trying bad ideas first. Right now
> the governor and presidential wannabe is on the road,
> working hard to market phantom tax cuts, church-school
> tax subsidies (a/k/a "vouchers"), and welfare deform.
> But as Floridians found out last week, George W.
> Bush's first breakout hit on the national charts is an
> uptempo number with a lethal-injection bullet. The
> state's death-penalty process was charmingly
> summarized by Jeb Bush advisor Brad Thomas: "What I
> hope is that we become more like Texas. Bring in the
> witnesses, put them on a gurney, and let's rock and
> roll."
>
> Thanks to a couple of embarrassing recent episodes
> with the electric chair, Thomas will get at least part
> of his wish: After legislators OK'd lethal-injection
> executions, Florida will have a spanking new gurney.
> Although some state reps are said to remain partial to
> electrocution (still a "choice" for the condemned),
> they will find that poisoning has its advantages: It's
> quiet, it doesn't shock the witnesses nearly as much,
> and it's better P.R. That helps when you're trying to
> drive up your numbers, as in Texas, where (through
> Jan. 1) George Bush has presided over 112 executions,
> a new modern record, which he will extend this year.
> Lethal injection may not be as emotionally satisfying
> as electrocution, but it's definitely more reliable
> and audience-friendly.
>
> Yet at Jeb Bush's urging, the Florida Legislature also
> borrowed another Texas innovation: the "streamlining"
> of the capital punishment appeals process. As
> practiced in Texas since 1995, the law imposes rigid
> time limits on defense appeals, and requires "direct
> appeals" (automatic in capital cases) and
> "post-conviction appeals" (covering additional or
> constitutional issues) to proceed simultaneously, even
> though problems that arise in the first may be exactly
> the problems that should be addressed in the second.
> Combined with additional restrictions under the
> Clinton administration -- for example, that federal
> courts can now only overturn state decisions which
> "unreasonably" violate constitutional protections --
> the result has been to make it easier for states to
> kill people without too much troublesome legal
> interference.
>
> State Rep. Pete Gallego, who co-sponsored the Texas
> law, points out that it also provided state funds for
> defense counsel in capital cases. That was true,
> although initially the payment process was so
> inadequate and cumbersome that capital trials were
> further delayed while the state looked for lawyers
> willing to work for little or no pay. Because
> inexperienced, appointed attorneys had failed to meet
> the new deadlines, some defendants were scheduled for
> execution with no post-conviction appeal at all.
>
> Gallego says these "bumps and kinks" have been
> straightened out in subsequent legislation, and that
> he's "pretty comfortable" with the new law. But an
> adequate defense in capital cases requires much work,
> investigation, perhaps even expert witnesses (who must
> themselves be paid). Jim Harrington, of the Texas
> Civil Rights Project, says state support for defense
> counsel remains inadequate, "and the quality of
> counsel remains pathetic."
>
> Harrington says the inevitable effect of the new laws
> in Texas and Florida is to diminish constitutional
> protections. Whatever the immediate legal outcome, he
> told The Texas Observer, "This is a clear signal to
> judges they do not have to take constitutional
> questions seriously." Florida defense attorneys have
> vowed to challenge the new law on constitutional
> grounds, but thus far that strategy has been futile in
> Texas. The current Court of Criminal Appeals is known
> to be so unfriendly to defense arguments that
> litigators await new elections of judges before they
> will bring any further constitutional challenges.
>
> Florida observers believe the courts here will not be
> so intransigent, partly because in Florida, unlike
> Texas, judges are not voted into office. "In the short
> term at least," said Mike Radelet, who studied
> death-row cases as chairman of the sociology
> department at the University of Florida, "odds are
> that the new law will slow down executions, not speed
> them up. The Florida courts are more receptive to
> constitutional challenges."
>
> Radelet said that if the true intent of the new law is
> to speed up the process, it's illogical on its face.
> "The Florida courts currently grant relief in about
> one-half of the capital cases that come before them on
> direct appeal. Now you're saying they have to hear
> post-conviction appeals simultaneously, before the
> direct appeal has been decided. It's like telling
> someone in your office they're not getting their work
> done, so you're going to give them more work. In
> effect, the Legislature is pouring sand in the
> executioner's gas tank."
>
> Richard Greene, of the Office of Public Defenders for
> West Palm Beach, suspects that the new law is
> vulnerable on constitutional questions of both
> separation of powers and due process. "We've barely
> had time to read the law, let alone understand it, so
> we're flying blind here." (The law was proposed on
> three weeks' holiday notice and passed Jan. 7 at the
> end of a three-day special session.) "The governor
> made certain that the legislators had time to get back
> from the Sugar Bowl, but otherwise the process was
> designed to prevent public input." Greene says that
> over and above the question of whether defendants can
> receive a fair hearing with a parallel appeals
> process, Florida courts may balk at the Legislature's
> attempt to rewrite judicial procedures. Greene argues
> the legislation was partly a "political show" intended
> as an attack on the Florida judiciary, which the
> legislators believe reverses too many convictions. And
> like Radelet, he says that in the short term, the
> effort may backfire. "The constitutional challenges
> have a good chance of slowing the process down."
>
> Raoul Schonemann, an Austin, Texas, lawyer who has
> represented many capital defendants, sees the move
> toward a parallel appeals process as a way for the
> state both to undermine defense counsel and prevent
> remedies in federal courts. "You can't raise an issue
> of incompetent counsel while that counsel is still
> presenting a direct appeal," he said. "It creates a
> potentially huge conflict between counsels, and it
> undermines the defendant's confidence. You can't get a
> fair direct appeal in the court where the problems
> occurred in the first place, and then, the state has
> no interest in having a post-conviction hearing that
> is truly fair. Finally, you're now prevented from
> arguing those issues in federal court, unless you can
> prove the state court was ‘unreasonable.' It's a
> superficially reasonable process that is actually
> intended to keep the federal court from addressing
> these issues and overturning state decisions."
>
> Like similar legislation in Virginia, where executions
> on a per capita basis are running neck-and-neck with
> Texas, the new law reflects growing national
> enthusiasm for death sentences. But Richard Dieter, of
> the Death Penalty Information Center in Washington,
> D.C., says the trend is not uniform. "In four states
> [Massachusetts, Michigan, Iowa and Maine], attempts to
> restore the death penalty were defeated," Dieter said.
> "And there's some chance of a moratorium in Illinois,
> where several capital convictions were shown to be of
> innocent people." That last fact, however, has not
> slowed the legislative rush in Florida, which leads
> the nation in capital convictions overturned due to
> innocence, with 18.
>
> Indeed, although capital punishment is presumed to
> enjoy popular support, Radelet believes Jeb Bush and
> the Legislature are not listening closely. "If you
> polled the public about emergency needs requiring a
> special session, you would hear education, health
> care, poverty ... not that the most important issue
> facing this state is the need to kill more people,
> more quickly." He adds that public support for the
> death penalty drops when a truly life-without-parole
> sentence is available. "The Legislature is way out of
> touch on this."
>
> Support for the death penalty also rests on the
> popular assumption that the legal system is generally
> fair, efficient and just. Texas Gov. Bush, for
> example, insists that on his watch no innocent people
> have been executed, and that all have had full access
> to the courts. Anyone who looks closely at several
> Texas capital cases discovers a much more troubling
> pattern: arbitrary and often dishonest prosecution,
> inadequate or incompetent counsel, substantially
> mitigating circumstances, a vacuous clemency process.
> In December Texas executed a man, convicted on the
> basis of admittedly perjured testimony, whose original
> attorney simultaneously represented the prosecution's
> main witness, the actual murderer. This month the
> eight men scheduled for death include one who was 17
> at the time of his crime, and another who was a
> paranoid schizophrenic, but who has since been judged
> sane enough to kill.
>
> The new laws' response to these problems? Hurry it up.
>
> Rep. Gallego says the Texas law is working as it
> should, and it protects the constitutional due-process
> rights of accused citizens. "People who oppose the
> death penalty are never going to be pleased by any
> capital punishment law," says Gallego, "but others
> will see that the law is fair, and has worked very
> well." Is he at all concerned that other states are so
> eager to follow the Texas example of accelerating
> executions? "I think it's fine that other states
> imitate Texas law. If Congress were more like the
> Texas Legislature, we'd have a better country."
>
> Those who have seen Texas' law in action up close are
> less enthusiastic. "What's the great hurry to kill
> people?" asks Harrington. "It's seen as popular, but
> that response is cynical, because there's no downside
> for the politicians. The constituency that they're
> offending doesn't vote. ... The people of Florida are
> getting Bushwhacked, just like Texas."