Political Transformation of the Florida Supreme Court.

In coming months the Florida Supreme Court will be transformed by the appointment of four (of the seven) new Justices, giving Governor Charlie Crist an unprecedented opportunity to reform the Court in his own conservative ideological image. Governor Crist is a career politician who has spent many years earning the name “chain gang Charlie” as both the state representative, then a state senator before being elected as Florida’s Attorney General prior to then becoming Florida’s elected Governor.

Throughout Governor Crist’s long political career, he has aggressively supported the death penalty and has used his political influence to push for expanding the use of the death penalty as well as expressing his favor for limiting appellate review in capital cases. As the Attorney general, Governor Crist served on the Florida Cabinet for 8 years, not even once voting to grant clemency in a capital case.

With the unique opportunity to now hand-pick fellow pro-death conservatives to the Florida Supreme Court the manner in which capital cases are reviewed and decided could significantly change.

Under Florida’s constitution all capital cases in which the defendant is sentenced to death must be directly reviewed by the Florida Supreme Court. Additionally, although state post conviction appeals are typically filed in the lower state circuit courts where the original trial was held, any decision rendered by these lower courts are then appealable by the Florida Supreme Court.

Under these constitutionally established rules, to be granted relief before the Florida Supreme Court, at least four of the seven justices must agree. For this reason Governor Crist’s appointment of four of the seven Justices could prove to completely preclude any possibility of being granted relief before the state courts.

As an indication of Governor Crist’s intent to stack the Florida Supreme Court with pro death penalty conservatives, much like President George Bush has done with the US Supreme Court, following the recent resignation of Justice Raoul Cantero, Governor Crist announced that his first appointment to the Court would be none other then Charles T Canady.

According to the Florida Bar News (September 15, 2008) in 1979 Charles Canady graduated from Yale University Law School (as did President George W Bush) then went into private practice at several law firms in Florida before being elected to the Florida house of Representatives in 1984 and serving in that position until 1990.

A longtime personal friend and conservative Republican colleague of Governor Crist, Charles Canady the was elected to the US Congress, serving as the elected Representative for the district encompassing Lakeland and other area’s of central Florida from 1992 to 2000.

After proving his conservative political ideology in Congress, former Republican Governor Jed Bush appointed Charles Canaby as his “general counsel” during his first year as Florida’s Governor. While serving in this position Canady was instrumental in pushing through the “Death Penalty Reform Act of 2000”, which was passed by the state legislature, then signed into law by Governor Jeb Bush.

However, the Florida Supreme Court subsequently declared this “Death Penalty Reform Act of 2000” to be unconstitutional by concluding that the Florida legislative cannot promulgate rules governing court procedure.

Had the Canady-created “Death Penalty Reform Act of 2000” gone into effect, Florida would have adopted the general procedures used in the State of Texas to severely limit death row appeals, including prohibiting appeals based upon alleged new evidence, even if that evidence might conclusively prove the condemned man’s innocence.

With Charles Canady now appointed as a Justice on the Florida Supreme Court we can expect Canady to aggressively push for judicial adoption of rules that will severely limit death row appeals. Within the next six months Governor Crist will appoint three more new justices to the Court, ultimately reforming the Florida Supreme Court in his own ideological image.

Within the next few weeks, it is anticipated that Governor Crist will announce his appointment to replace retiring Justice Bell. Then in January, 2009 Justice Anstead will be forced into retirement under Florida’s law requiring retirement at age 70. Last, in March, 2009 Justice Wells will also be forced into retirement when he too turns 70. So within the next 6 months Governor Crist will have appointed the majority of the Justices that will sit on the Florida Supreme Court for many years to come. If the next three appointments reflect the conservative pro-death penalty agenda long embraced by Justice Canady, then within the foreseeable future Florida can become a mirror-image of Texas..

Death Row Conditions Challenged

According to an article published recently in the USA Today the ACLU (American Civil Liberties Union) has filed a civil lawsuit against the Federal Bureau of Prisons, claiming that the confinement on the Federal death row in Terra Haute, Indiana are “cruel and unusual”

In the lawsuit, the lawyers working for the ACLU argue that individually and collectively the deplorable conditions on death row inflict punishment upon those condemned to death by the Federal Government in excess of what is constitutionally allowed.

To understand the nature of this argument one must first understand the concept of the United States constitutional prohibition against the infliction of “cruel and unusual” punishment. Although simply being incarnated in itself is arguably a severe punishment, the concept of “cruel and unusual” is subjective in nature and basically is defined by what the Court believe reflect societies contemporary values as to how prisoners are treated and the conditions they must live under.

Basic conditions of confinement have long been recognized under this doctrine. When the individual state or the Federal Government imprisons a person after being convicted of a crime, they take on the responsibility to provide for the prisoner’s basic needs, such as food clothing and shelter. The courts have also established that prison officials must provide adequate medical care, including dental and mental care and that prisoners cannot be confined to cells that are unnecessarily unsanitary and might subject the prisoner to the risk of health problems.

Confinement on any death row in America is unlike any other form of imprisonment as only those condemned to death are automatically placed and kept in long term “solitary confinement” for non-punitive reasons. The courts have recognized that temporary conditions of confinement that may be substandard generally are not constitutionally intolerable even if objectively deplorable – but the longer the durations of these deplorable conditions, the greater the impact is on the prisoner. So the fact that death row prisoners are kept in solitary confinement for many years, even decades, makes deplorable conditions constitutionally intolerable.

But the bigger problem is that very few courts are willing to even entertain any legal claim that death row conditions are “cruel and unusual” punishment. I have been on Florida’s death row now for about 25 years so I have long term personal knowledge and experience (please see www.doinglifeondeathrow.com ) In my personal experience I can tell you that the conditions we must “live” under far exceed any objective definition of “cruel and unusual” punishment. Although the prison is legally required to provide for our basic needs, they only do so at the absolute minimum and what is provided simply does not account to basic needs.

Here in Florida the state prison system has contracted a private company to provide our meals. These companies must compete with each other and whoever can feed us for the least amount of money wins the contract. As a result, the quality of food provided is at best barely edible – at worst, lethal. It had become common for death row inmates to develop food poisoning after eating spoiled food. Most of what is served is of such poor quality that very few can actually survive off the food we are provided. Most of us actually live by purchasing food from the prison “canteen”.

Of course this exposes the true motivation for the Florida prisons system to provide meals that are inedible. By law they must provide 3 meals a day, although the law also says these meals must be edible, whether they are or not is up to the court to determine, and the court in Florida simply will not even consider the issue. So the prison knows they can get away with feeding us anything they want – and by doing that they know we must buy food off the canteen.

Last year alone the Florida prison system sold prisoners over 100 million dollars worth of food and they made a substantial profit. If they are forced to feed us meals that are actually edible, then it will reduce the substantial profits being made. But what about those who cannot afford to buy food from the canteen? They simply must go without or ask food from other prisoners.

It’s the same story on all the ‘basic needs” the prison is legally required to provide. To meet their obligation to provide clothing we are each provided one pair of bright orange pants/shirts and a jacket. If we want to have a decent sweater, thermal clothes, pajamas and even extra socks, t-shirts, and a decent pair of shoes we must buy it from the prison canteen. Even here in Florida the winters get very cold (below freezing) so without the ability to purchase these “extra” clothes the best we can do is stay under a coarse wool blanket all winter and that’s assuming you can even get a blanket.

I can only hope that the lawsuit brought against the Federal prison will be successful and through its litigation maybe, just maybe, establish some judicially recognized minimal standards that that can subsequently be used to improve living conditions here on Florida’s death row. I realize that many out there advocate deplorable conditions as a means of maliciously making the condemned suffer. But the inhumanity we allow to be inflicted on even the lowest of the law is an inhumanity inflicted upon all of us.