Sunday, January 20, 2002
Sun Editorial: 'Another day' coming
When Roberto Melendez was released earlier this month after spending 17 years on death row for a crime he apparently did not commit, capital punishment foes called on Gov. Jeb Bush to declare a moratorium on executions in Florida pending a review of the fairness of the state's death statutes.
Melendez, after all, is one of 24 inmates to be freed in Florida because later review cast doubt upon their guilt. The state's track record on executions is such that Florida has uncovered about one "mistake" for every two persons its executed. That hardly inspires confidence in the infallibility of Florida's death machinery.
Gov. Bush ignored calls for a moratorium, displaying a blind faith in the death penalty that a fellow Republican governor, George Ryan, of Illinois, does not share. Ryan has already declared a moratorium in his state precisely because of faulty convictions like Melendez'.
Now comes yet another incentive for Bush to at least temporarily disconnect the death machinery. Last week, the U.S. Supreme Court announced that it would review an Arizona death case that could have, in the words of Supreme Court Justice Sandra Day O'Connor, "colossal" implications for Florida and eight other death penalty states. Depending on how the court resolves Ring vs. Arizona, the death sentences of 385 inmates on Florida's death row could be placed in doubt.
Florida and Arizona are two of just nine states that charge judges, not juries, with determining whether sufficient "aggravating" factors exist to justify the death penalty in capital cases. Indeed, in Florida, juries play no role at all in deciding whether or not a killer, once convicted, will die. Most death penalty states, and the federal government, leave it up to juries to determine whether enough aggravating factors - whether, for instance, a murder is deemed to be particularly cruel or heinous - exist to justify condemnation.
This is not simply a legal technicality. In an earlier case from New Jersey, the Supreme Court has already held that allowing judges rather than juries to determine whether sufficient motivation exists to upgrade an ordinary crime to a "hate" crime - with its harsher punishments - is a violation of a defendant's due process rights. Under the constitution, the court held in the New Jersey case, a jury must make such a determination beyond a reasonable doubt.
Although death penalty cases were not immediately impacted by the court's Apprendi vs. New Jersey decision, Justice Clarence Thomas at the time wrote that making that determination "is a question for another day." In accepting Ring vs. Arizona, the court is signaling that the other day has arrived.
Is it conceivable that the high court will say that, under the constitution, juries must make the crucial determination in regard to hate crimes, but do not necessarily have to do so when the convicted's life may be forfeit? It doesn't seem likely.
Indeed, commenting on an earlier death case that seemed to run contrary to Apprendi vs. New Jersey, Justice O'Connor wrote, "If a state can remove from the jury a factual determination that makes the difference between life and death, it is inconceivable why a state cannot do the same with respect to a factual determination that results in only a 10-year increase in the maximum sentence to which a defendant is exposed."
The court's ruling is due before its summer recess. Florida has already scheduled three executions for early February alone. Since there is at least an even chance that court's logic in Apprendi vs. New Jersey will extend to Ring vs. Arizona, prudence alone would seem to dictate that the Bush Administration hold off on any more executions.
A crucial component of Florida's capital punishment process is undergoing scrutiny by the U.S. Supreme Court. This is no time to accelerate the state's machinery of death.