Editorial: It’s time for a moratorium on the death penalty


    Since 1973, 144 people on death row have been exonerated.  That’s just 1.6 percent of all death sentences imposed.  But a study released in the Proceedings of the National Academy of Sciences suggests that the innocence rate is actually 4.1 percent– more than twice the rate of exoneration.  That means the reality of the death penalty is much worse than what most people assumed but dreaded:  An untold number of innocent people have been executed.    Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death (pnas.org/content/111/20/7230.full)

    It is against this ugly backdrop of scientific study and statistical appraisal that the on-going battle between Orange-Osceola State Attorney Aramis Ayala and Florida Governor Rick Scott must be viewed.

    Scott’s decision to take death penalty cases away from Ayala after she declared her office would not seek the death penalty was a predictable, although improper, exercise of his chief executive power. There is a state law on the books (F.S. 27.14) that on its face allows the governor to reassign state attorneys to different judicial districts “if, for any . . . good and sufficient reason, the Governor determines that the ends of justice would be best served, . . .” But when that law was passed, State Attorneys were appointed, not elected. Being elected ought to mean Ayala doesn’t report to Governor Scott.

    Ayala’s decision to not seek the death penalty is clearly within the discretion vested in her as the Orange-Osceola State Attorney. In each and every case every prosecutor gets to decide whether imposing the death penalty is appropriate or not.  In fact, prosecutors often use the death penalty as a bargaining chip, agreeing to take it off the table in exchange for a confession or for information about other defendants. It’s the essence of prosecutorial discretion. And it belongs to Ayala, who was elected to utilize it– not Scott.

    Imagine the chaos that would result if the governor were able to reassign cases whenever he disagreed with a prosecutor’s decision to bargain the death penalty for a guilty plea.

    Governor Scott is entitled to be upset and to express his opinion on the subject– just like every other citizen of our nation. But we don’t believe that entitles him to meddle.

    We agree that her announcement of what seemed to be a policy of not seeking the death penalty was wrong, but  Ayala’s position on the death penalty should be reviewed by the voters who elected her, and not the person sitting over an entirely different branch of state government.

    Ayala is right when she says blacks and other ethnic minorities are disproportionately sentenced to death.  She’s right when she says it costs more to execute an inmate than it does to jail him or her for life. The life sentence should be preferred over punishment by death– not because the death penalty is wrong or out of place in the overall scheme of crime and punishment, but because the death penalty should only be imposed where there is absolutely no doubt of guilt.

    The reasonable doubt standard doesn’t work when it comes to sentencing people to die.

    The figure cited in the opening quote above– 4.1 percent– means 1 out of every 25 inmates sentenced to death is actually innocent. As a nation, we ought to be ashamed. We keep doing the same thing– convicting and killing innocent people– and not even hoping for a different result.

    In Florida, State Attorney Aramis Ayala has changed the narrative.

    We would be hard-pressed to say that the death penalty is never warranted. But the problem, once again, is getting to the point where it’s sought– and being absolutely sure the right person is dying for the crime.

    We know confessions are often coerced, but we call it good police work.  We know eyewitness testimony is often flawed, but if it ends in conviction we look the other way.  We know that even otherwise DNA evidence can be falsified or planted by anyone with an ax to grind.

    Circumstantial evidence might convict a defendant of a criminal act, but it should never be sufficient to sentence a defendant to death. There have been too many guilty verdicts in cases where witnesses made mistakes in identification or were motivated by the promise of a monetary reward; even where police or prosecutors intentionally failed to turn over evidence to the defense.  An execution is too high a price to pay for bias, incompetence or something worse.

    Instead of arguing about Ayala’s exercise of discretion, we should be discussing ways of ensuring that innocent people are never sentenced to death and that the system moves effectively and efficiently in administering a better brand of justice.

    An additional or expanded burden of proof in cases where a prosecutor decided to seek the death penalty could be just the solution.

    Perhaps something like an “absolutely no doubt” standard. Whenever a prosecutor elected to seek the death penalty, he or she would have to prove that there was absolutely no doubt about the defendant’s guilt.

    It’s a tough burden, to be sure, but that is exactly the point.  Prosecutors would be more hesitant to seek the death penalty in cases where that burden could not be met.  But they would always have the heavily punitive life sentence to use– always the other choice in capital cases.

    More importantly, though, such a burden would effectively eliminate all chance of executing an innocent person.  A mistake in the conviction process would not translate to death.  There would yet remain hope that a DNA test or the Innocense Project could turn things around.  That hope evaporates once the needles are plunged.

    With the increasing use of phone cams and CCTV, the “absolute” burden of proof could be satisfied if a murder was caught on video and the defendant identified in the film. No video, no death penalty. There are a lot of brilliant legal minds in Florida. Surely they can come up with something that works.

    Such a standard might seem to penalize prosecutors, and yes, it would mean fewer guilty people being executed, but as Benjamin Franklin said many years ago, it is better that 100 guilty men go free than 1 innocent person be made to suffer.

    As it is, things won’t change much even if Scott gives Ayala her cases back. Because the death penalty isn’t going away. Other state attorneys will continue employing it in counties all around the state. If we don’t deal with the real problem now, with all the attention presently focused on this issue, we may forever lose the opportunity to galvanize the state to take this much-needed step.

    We need a moratorium on all pending and future executions until the problems are fully addressed. Lawmakers should take some time to give serious thought about the burden of proof required to take anyone’s life.

    The problems with the process and the human actors involved have been known to all concerned for a very long time.

    We could just go on as we’ve always gone on, but in such a rapidly changing world as we live in today, why should we?