GOVERNOR'S  TASK FORCE ON CAPITAL CASES
(Reviewing Racial Injustice, Mental Retardation and Role of Jury in Sentencing)

Testimony of D. Michael McCarron
January 28, 2000

    Thank you Mr. Chairman and members of the Task Force for the invitation and opportunity to appear before you. As some of the Task Force are aware, the Florida Bishops have a longstanding position against capital punishment, and it is generally our practice to speak of our State's legal alternative to the death penalty--life in prison with no possibility of parole. But it is not your purpose to debate the merits of the death penalty generally, or that alternative, so I will address three issues that are before you relating to the death penalty--racism in its application; banning execution of the mentally retarded; and, requiring a unanimous jury verdict for death. And though I will not today be arguing our position against the death penalty, I have taken the liberty to furnish the Task Force with a copy of my remarks attached to which is a recent statement of the Florida Bishops, a joint statement they issued with Protestant leaders in Florida, and another joint statement issued with Jewish leaders. (Attached "Protection, Punishment, But Not Death," "The Letter to Christians," and "To End the Death Penalty.")

   Before addressing the three main issues, I want to say a word about our genuine and ongoing support for survivors of victims. The deep pain and very real anguish lived by families of victims cannot be fully understood by most of us. Some of you on the Task Force have suffered firsthand this agony of losing a loved one to a terrible, horrific crime. Our churches and communities cannot do enough to bring comfort into the lives of these grieving families. Justice demands that survivors receive the greatest care and compassion possible. In time we hope our society will be able to resist the very natural, the understandable desire, to take the lives of those who have committed such terrible wrongs. In our view, such capital punishment serves only to feed a climate of violence in our society, and mistakenly sees killing as a solution to the problem. In truth, capital punishment is not a solution to the problem of violence and murder.

   Racism in application of the death penalty. Any criminal penalty, and especially the death penalty, must be based on justice. Our entire constitutional, legal and civic system is based upon it and our civilization demands it. Just last month, after an exhaustive study of the "collective wisdom and moral insights" of Judaism and Catholicism, the National Council of Synagogues and the National Conference of Catholic Bishops issued a joint statement in which the following excerpt is on point:

   "In biblical times, capital punishment was a search for justice when justice seemed impossible to reach. As the Rabbis did years ago when they considered the use of the death penalty, let us take time to ask ourselves some relevant questions. Is justice reached when we are taking a chance of executing an innocent person? Is justice reached when we are discriminating against our minorities in our death sentences?"

    There are several studies and recent statistics that show a decided bias in application of the death penalty against murderers of whites and not blacks. The Florida Supreme Court Racial and Ethnic Bias Study Commission Report (December 1991), clearly documents that "defendants who kill Whites are more likely to be sentenced to death than defendants who kill African- Americans." According to the study, "...the odds of a death sentence for those who kill White victims are approximately 3.4 times higher..."  Other studies which are available to the Task Force also demonstrate this finding. Dr. Michael Radelet, a nationally renowned scholar and Chair of the Sociology Department at the University of Florida, has documented through an empirical study that racial factors affect the administration of the death penalty.

   Much has been made already, in the Legislature and in the media, on this whole question of racial injustice in application of the death penalty. As the Rabbis asked years ago, "Let us take the time to ask ourselves the relevant questions." On this matter of great importance, can it be said in good conscience that this Task Force has sufficient time in the term you are granted to properly consider this question? We exhort the members, in the strongest possible terms, that great care be taken on this question. If there be any doubt in your minds, we urge that the Task Force issue a preliminary report on the question and recommend to the Governor and Legislature a funded study by an impartial, nationally recognized entity on this vital matter.

   Banning Executions of the Mentally Retarded.  Numerous surveys and polls indicate that a majority of Americans overwhelmingly oppose applying the death penalty on defendants who are mentally retarded. (See "Mental Retardation and the Death Penalty: Current Status of Exemption Legislation," by Keyes and Edwards, MPDLR , Sept-Oct. 1997). In Florida, polls indicated 71% opposed extending the death penalty to people with mental retardation. (See Cambridge Survey Research. Amnesty International, "An Analysis of Political Attitudes Toward the Death Penalty in Florida," May 1986). Moreover, every other state poll taken shows between 70%-75% oppose executing the mentally retarded; this same consensus is reflected in positions held by the American Bar Association, the American Association on Mental Retardation, and the Association for Retarded Citizens.

   According to the American Association on Mental Retardation, "Mental retardation refers to significantly sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period." There exists consensus in those states that have banned capital punishment that a person with an IQ of 70 or less is mentally retarded.

   Just as we do not hold children responsible for criminal acts as adults, we should not hold others to a standard beyond their mental capacity. We do not suggest that such persons cannot tell right from wrong, or that they should not be held responsible. But the death penalty is the most extreme sentence available, and if we must have it, it should be reserved for the highest degree of blame. We strongly urge the Task Force to follow the example of 12 other states and Congress in outlawing capital punishment for the mentally retarded.

   Requiring A Unanimous Jury Verdict for Death. In Florida's recent Special Session on the Death Penalty, two findings seemed to surprise many of our lawmakers. The first surprise was that among states in which juries decide sentencing, only Alabama, Delaware and Florida allow non-unanimous jury recommendations. All others (29 states) require a unanimous jury verdict for sentencing of death. In Florida, a simple 7-5 majority can yield a death sentence; a jury's recommendation of life in prison can be overridden by a judge. (Note: Thirty-eight states have the death penalty. Thirty-three have jury sentencing; the remaining five have sentences decided by a judge). The second finding to surprise lawmakers was that 60%-70% of death sentences are reversed on appeal (in excess of 70% in both 1998 and 1999).

   Alexis de Tocqueville said, " The institution of the jury places the real direction of society in the hands of the governed and not in that of the government. He who punishes the criminal is the real master of society." As long as the death penalty is to continue in our state, the jury's role of "conscience of the community" should be strengthened and preserved. Requiring a unanimous jury verdict would undoubtedly result in two salutary effects on Florida's death penalty cases: fewer death sentences would be handed down, and the rate of death sentence reversals would substantially decrease. Further, the dilemma of life-to-death override would be largely eliminated.

   In Florida, trial judges in well over a hundred cases have rejected juries' recommendations of life imprisonment. The Florida Supreme Court ruled in Tedder v. State that jury recommendations of life imprisonment may be overridden by the judge only in those rare instances where "virtually no reasonable person could differ" that death should be imposed in the case. The override provision, originally thought by many as positive since it could offer death- to-life override, has instead minimized the historical role of juries as voice of the community.  Moreover, it has been hugely expensive for the state in that it has resulted in relatively few affirmed death sentences. A reputation for fairness and justice is in jeopardy with our override system. The jury is the only protection against the arbitrariness of the judge, however rare it may be. We urge the Task Force include a recommendation for unanimous jury verdict in its final report.

   We ask that you approach your task with seriousness and objectivity, setting aside preconceived notions. We thank you for your careful deliberation of these critical death penalty issues.