Death Row Journals (Part 34)

Recently I read an interesting article by renowned journalist and now retired associate editor of the Tampa Bay Times, Martin Dyckman entitled 'Clemency and Florida's Overbearing Politics of Death'. For obvious reasons, this is an issue that holds significance to me and all other death sentenced prisoners in Florida, as before the governor can sign a death warrant scheduling our execution, the governor and Florida cabinet must consider whether a grant of clemency is appropriate. Mind you, they key word there is "consider", as that's all that they are required to so.

There's a reason you won't hear too much about this particular part of the death penalty process as for all practical purposes, it has long ago been reduced to nothing by a deliberate pretense..for too many decades now, Florida has reduced this clemency process to nothing but a shame.

Why is this even an issue? Because as the Supreme Court recognized in Herrera v. Collins, 506 U.S. 390 (1993) and Harbison v. Bell 556 U.S. 180 (2009) - and I quote "Executive clemency has provided the "fail safe" in our criminal justice system...recent authority confirms that over the past century it has been exercised frequently in capital cases in which demonstrations of actual innocence has been made". Or in other words, historically clemency has been available to prevent an innocent person from being put to death when the judicial process has failed.

On of the common misconceptions about our criminal justice system is that our courts always specifically look at every capital case to ensure that the person facing execution is actually guilty of the crime and that simply is not true. The inconvenient truth is that both the state and federal courts  - even the US Supreme Court (Herrera v Collins) has made it clear that innocence is not an issue, and the courts will not address a claim of innocence on its own merits.

                                                             

Worse yet, the way the criminal justice system really works is that after you're condemned to death you're then appointed a lawyer who becomes responsible for presenting your appellate issues to the courts (arguing why you're entitled to have your conviction vacated because the state deliberately used false evidence or whatever), if that lawyer fails to timely present these technical issues to the court within the time frames required, then the courts will not allow those issues to be heard at all, even though if addressed on the merits, it would establish that you are innocent.

Often in capital cases, substantial constitutional issues that would establish innocence are procedurally barred from any form of judicial review, as has happened in my case many times.

For that reason, the availability of a meaningful clemency process is the only true safeguard to protect against the inevitable execution of an innocent person.

But as I said above, for all practical purposes, this clemency process in Florida, and most other death penalty states, has become a deliberate pretense. Just look at the indisputable facts....since 1978 (when the death penalty was reinstated following the landmark Furman v Georgia decision in 1972 that found the old death penalty unconstitutionally "arbitrary and capricious") here in Florida 81 men and women have been executed and 26 men and women have been legally exonerated and released...and since 1974, there have only been 6 men granted clemency (their death sentences reduced to life) in capital cases.

Notably, not a single person has been granted clemency in a capital case in Florida in over 33 years. All six men were granted clemency by then governor Robert Graham, who left state office to become a US senator in 1986. Since that time, not even one person has been granted clemency in a capital case in Florida.

What it comes down to is the "politics of death" and in these pro death penalty states even expressing an open mind to consideration of leniency in a capital case is essentially political suicide.

Here in Florida it is a stacked deck anyways. Under Florida law a governor cannot grant clemency alone, but must have at least 2 other cabinet members agree. It's my understanding that for many years now that cabinet reviewing all capital clemency petitions consisted of only 3 people...the governor, the Florida Attorney General and the commissioner of agriculture. And let there be no mistake, each of these individuals are personally familiar with the inherent imperfections of our judicial process and know that the only way to ensure that an innocent person is not put to death is by granting clemency in capital cases in which a legitimate issue of innocence exist.

My own case illustrates this. A wealth of readily available evidence exists to substantiate my consistently plead claim of actual innocence, which the courts have refused to address because my lawyers failed to properly present this evidence to the courts.

On several occasions my lawyers have petitioned the governor and cabinet for clemency consideration, and hundreds of people have signed petitions and sent letters to the governor asking him to look at the evidence and allow a fair clemency review. But each time it has been refused to even allow my case from being brought up for a hearing and the evidence discussed.

Bottom line, there is no meaningful clemency process in Florida, and in evidently, innocent people will be executed and without this historically available "safety valve", there is virtually no process available in which to prevent the execution of the innocent.