Gary D. Beatty*
The day after the Timothy McVeigh jury recommended a death sentence,
CNN broadcasted a debate on the death penalty on "Larry King
Live". The opponents expressed the usual objections, most dubious
of which is that imposing the death penalty costs more than a sentence
of life without parole. If true at all (and the cost figures upon
which those claims rely are suspect), that argument is disingenuous.
Experience in Florida has clearly demonstrated the high cost of
executions results directly from opposition to the death penalty.
Florida death sentences receive automatic direct review of both
the guilt and penalty phases by the Florida Supreme Court, and is
usually completed within three years. The appellate division of
the Public Defender's Office provides experienced counsel for the
indigent on direct appeal. After affirmance on direct review, and
resolution of any Federal appeals thereupon, the condemned can initiate
collateral proceedings in the original trial Court, with appeals
taken to the State Supreme Court. Upon final resolution of collateral
appeals in State courts, Federal collateral proceedings commence.
Interminable collateral appeals are the goal of death-penalty opponents.
Collateral issues are limited only by their imaginations, but focus
in three areas: Frivolous claims of newly discovered evidence; insipid
allegations of ineffective trial and direct appeal counsel; and
false allegations of government misconduct.
To facilitate the expeditious resolution of collateral appeals,
the Florida legislature created the Office of Capital Collateral
Representative (CCR), in 1985, as a State agency. Attorney's were
employed to represent those on death-row in State and Federal collateral
proceedings. In creating CCR, the legislature expressed its intent
"... collateral legal proceedings...may be commenced in a
timely manner...so that the judgments of the courts...may be regarded
with the finality to which they are entitled...". (Emphasis
added) Section 27.7001, Florida Statutes.
Prior to CCR, most collateral appeals were pursued by pro bono
counsel privately co-ordinated through anti-death penalty organizations.
Each execution was stalled for over a decade, in part due to eleventh
hour claims that collateral appellate counsel was inexperienced,
or lacked resources, and was therefore ineffective. In theory, creating
CCR was supposed to remedy those problems. In reality, creating
CCR institutionalized death-penalty opposition as a tax-supported
government agency. The consequences should have been predictable.
Timeliness and finality were objectives to which CCR never even
gave lip-service, except at budget time. Their foot dragging became
so flagrant that in 1994 the Florida Supreme Court imposed time
constraints on collateral proceedings. Nothing changed. By 1996
the citizens, legislature, and Governor were fed up with the delays.
The McDonald commission was created, chaired by a retired Florida
Chief Justice, to study CCR.
The McDonald Commission's report (prepared in February 1997)(1)
exposed CCR for what they were - fiscally irresponsible, unethical
zealots out to dismantle the death penalty. The most revealing of
the Commission's findings was that even though funding for CCR had
been substantially increased concomitantly with the time constraints
imposed two years earlier, productivity of CCR had actually decreased.
Fiscal mismanagement by CCR reached its zenith in 1997. The Governor
signed a Death Warrant for the 1983 conviction of confessed serial
killer Gerald Stano. CCR launched the usual flurry of last minute
appeals, then claimed that they were unable to effectively represent
Stano because their budget was exhausted. An emergency audit revealed
sufficient funds remaining in the CCR budget, and they were ordered
to litigate the latest appeals. Forced to acknowledge they had money
in their budget, CCR then that claimed those funds were allocated
to appeals in other cases for which there was not yet a death warrant.
As of now, Stano's execution is on hold, pending the new fiscal
year. CCR has been ordered to prioritize their resources.
In May 1997, the Florida Supreme Court reluctantly stayed collateral
proceedings in another case because CCR claimed inadequate funding.(2)
The Court found that the funding shortfall, if it existed (another
audit was in progress), resulted from irresponsible management by
CCR. For example, the Court noted that CCR had obligated itself
to pay one expert witness $6,000 for ONE court appearance. The Stano
and Hoffman cases are egregious examples of how the inflated costs
of executions are caused by death-penalty opponents. There are others
which regularly reoccur.
One recurring cost results from CCR's misuse of Florida's Public
Records law(3), which empowers any citizen to require a government
agency to make available copies of agency records. CCR cares little
for what the records contain, though they claim to be looking for
exculpatory evidence withheld by police or prosecutors. Their real
objective is to generate delays by claiming non-compliance with
records requests. To discourage such claims, agencies disclose every
document not expressly exempted by statute, even if the document
contains information already disclosed in the original trial, or
which is unrelated to any appellate issue. Researching and copying
these records, consumes agency and CCR resources. A copying charge
of several hundred dollars for such a request is not unusual.
CCR makes records requests of every agency involved in a murder
case, without regard to duplication. For example, a request to the
State Attorney's Office produces a complete record, including police
and medical examiner reports. After having received those records
(and churning as much litigation about the records as it can get
away with), CCR will then make a records request to the investigating
police agency . Most, if not all, of the police agency records were
already disclosed through the State Attorney's office, yet CCR makes
no effort to minimize the cost by limiting its request to those
records not already disclosed. There will be a request to the Court
Clerk, for their documents, all of which are already contained in
the record on direct appeal which CCR got when they took over the
case. Next will be the Attorney General's office (that handled the
direct appeal) even though their files contain only what is in the
appellate record which CCR already received. The failure of any
agency to respond to CCR's satisfaction results in more hearings.
CCR always claims that something is being withheld, usually without
any evidence to support such claims.(4) The costs escalate.
While the fiscal hijinks of CCR undermine the claim that the death
penalty costs more than life in prison, the tactics employed in
pursuing appeals are equally troubling. The Commission found ample
evidence of ethical lapses by CCR attorneys. Because of the abundance
of evidence of fiscal and ethical irresponsibility by CCR, the Commission
determined "...that based upon CCR's lack of institutional
integrity, Florida should consider other models of postconviction
Incredibly, death-penalty opponents cited the Commission report
as a reason to abolish the death penalty. The public responded by
calling for the abolition of CCR, which exposes the fallacy of the
argument that when citizens are educated about costs, they opt for
life sentences. The result was a legislative restructuring of CCR.
Whether the changes will make a difference remains to be seen.
Currently CCR works from one office from whence their attorneys
travel throughout the State, descending (like a biblical plague
of locusts) upon local agencies to devour resources, and otherwise
wreak havoc. One CCR delaying tactic is to have a different attorney
appear for each stage of an appeal, each then asking for a continuance
on the grounds of being new to the case and thus unprepared. Rotating
attorneys also enables them to make deliberate misrepresentations,
in court, without having to worry about reappearing before a Judge
after the misrepresentation is discovered.
In response to the the fiscal and ethical problems, the legislature
dismembered CCR into regional offices, each separately budgeted,
and staffed. Under the new scheme, the budget in one office could
not be expended on an appeal from another region, thus diminishing
CCR's ability to manipulate delays by shifting funds among cases.
CCR attorneys employed in each region would practice exclusively
within that locale, so that their individual reputations would become
known to Judges before whom they would have to repeatedly appear.(5)
The State Supreme Court has proposed a new procedure to expedite
and standardize Public Records demands.(6)
There is a significant change in the appointment of the head of
the CCR. Under the prior statute, (s)he was appointed by the Governor,
from among three candidates nominated by the elected Public Defenders.(7)
That assured two things: First, that no death-penalty supporter
would be appointed. Second, the opportunity of collusion with local
public defenders when raising collateral claims of ineffective assistance
of defense counsel was blatant, particularly if the trial and/or
direct appeal were handled by public defenders. The new statute
has the head of CCR still appointed by the Governor, however the
three candidates are nominated by the State Judicial Nominating
Commission. The Public Defenders are now (officially at least) out
of the loop.
The overwhelming majority of citizens of Florida, as in the rest
of the nation, support the death penalty. To claim (as did one opponent
on "Larry King Live") that when citizens are educated
about the high fiscal cost of administering the death penalty they
always opt for life imprisonment, is intellectually dishonest (if
true at all). If the multiple layers of appeal are pursued in an
ethical, and fiscally responsible manner , execution is less costly
than warehousing a murderer for life.(8) Any increased cost is caused
by death-penalty opponents.
* Gary Beatty has a Juris Doctor degree from Florida State University,
is Board Certified in Criminal Trials by the Florida Bar, and is
solely responsible for the opinions expressed herein. When not tending
bar at a fish camp on the St Johns River, he practices law. He wishes
to thank Messrs. Holmes and White for their suggestions during preparation
of this article.
- A copy of the report of the Commission for
the Review of Post-Conviction Representation can be obtained from
the McDonald Commission, c/o House Judicial Counsel, 310 House
Office Building, Tallahassee, FL 32399-1300.
- Hoffman v Haddock 22 FLW S303 (May 30, 1997).
- Chapter 119, Florida Statutes. The statute
exempts some records from disclosure, such as records which could
compromise ongoing criminal investigations, or which are protected
by privacy laws.
- There have been instances where CCR has quoted
from documents which it claims not to have ever seen. In others,
CCR has denied receiving documents for which an agency has a signed
receipt from CCR.
- For years prosecutors, statewide, have lamented
the lack of sanctions imposed, by Judges at all levels, for blatant
unethical conduct by CCR attorneys. The new statutory scheme will
do little to cure the problems if the Courts are unwilling to
enforce ethical standards among CCR attorneys. Actions by the
ABA seem to encourage, rather than discourage, such ethical lapses.
- As of this writing, this proposal has been
published for comment, but not yet adopted.
- Each of Florida's 20 Judicial Circuits has
an elected State Attorney and Public Defender.
- 8. Evidence suggests that if the death penalty
were abolished, death-penalty opponents would next claim that
life without arole is cruel and unusual punishment, and demand
parole eligibility for murderers!