ACLU Memo to Representative Anne Gannon on Proposed Funding Cuts for Capital Collateral Regional Counsel (CCRC)
January 22,
2003
To: From: Larry Helm Spalding, ACLU Legislative Counsel
Re: CCRC Budget
Date: 22 January 20003
CCRC BUDGET PROPOSAL
The crux of the proposal from the Governor's office is to
privatize capital post-conviction litigation. The author is Brad Thomas
who is a long-time foe of CCR and in previous years has advocated the
abolition of state habeas corpus.
The following is the Governor's justification for the proposed change:
To ensure that legal claims are considered in a more professional,
timely and cost-effective manner, Governor Bush proposes providing every
death-row inmate with private legal counsel to represent them in
post-conviction proceedings, rather than utilizing state agencies to
provide such services. Currently private legal counsel provide highly
competent and prompt legal services to some death-row inmates, in a
cost-effective manner. Three state agencies represent other inmates, but
those agencies are funded regardless of their performance. By utilizing
current practices involving private legal counsel, the state can save $3.8
million while providing excellent legal counsel to every convicted
murderer sentenced to death.
HISTORY OF CCR
In 1972, the United States Supreme Court in Furman vs.
Georgia declared the death penalty unconstitutional as then
constituted. That same year, the Florida Legislature in special session
enacted a new capital sentencing statute, which was upheld in 1976 in
Profitt vs. Florida.
Between 1976 and 1985, the Clearinghouse on Criminal Justice (actually
a one-woman operation headed by Scharlette Holdman) worked to recruit
volunteer attorneys to handle the early capital post-conviction cases. In
the early 1980s, the Florida Bar joined in the process and committed
itself to recruiting more volunteer attorneys and to provide some
financial assistance to the Clearinghouse.
In 1984, however, the post-conviction process came to a halt as the
Florida Supreme Court stayed two death warrants because the inmates did
not have counsel. At that point, then Attorney General Jim Smith drafted
the CCR statute. Smith argued that it was an embarrassment to the state
that enough attorneys could not be recruited to handle these cases and
that a large percentage of the cases were being litigated not by Florida
lawyers, but by attorneys associated with large New York City and
Washington DC law firms. The CCR bill passed both houses without dissent.
In the fall of 1985, CCR became Florida's 21st Public
Defender Office specializing in capital post-conviction litigation in both
the state and federal courts. In 1997, CCR was divided into three regional
offices each with its own agency head.
Few would argue that CCR and its successor regional CCRC offices have
not provided effective assistance of counsel in these death penalty cases.
In fact, opponents have suggested that CCR has been too effective and
aggressive in the representation of its clients.
THE BUDGET PROPOSAL ISSUES
1. What will be the impact of privatization?
Capital post-conviction litigation is difficult, complex and
time-consuming. Few attorneys want to take on this type of criminal
practice. Fewer still have the ability to do so. Most criminal defense
lawyers and the Florida Bar are of the opinion that attorneys employed by
a highly specialized state agency like the CCRCs provide the best and most
effective representation to death row inmates. Brad Thomas, however,
suggests that private attorneys are providing equal, if not better,
representation than the CCRC lawyers. I do not believe the facts bear that
out.
2. Is this a cost saving measure?
The budget proposal reduces the amount of state dollars
provided from $9.6 million in FY 2002-2003 to $6 million. Yet, who would
argue that it would be a cost saving measure to abolish the public
defender offices and privatize indigent legal defense? We have public
defender offices because they are cost effective.
3. Where are the private attorneys going to come from?
Pre-CCR, the Florida Bar could not recruit enough attorneys
to handle the capital post-conviction cases that needed volunteer
attorneys. (The Public Defender Officers were prohibited from taking
capital post-conviction cases, although a few did in spite of the
statute.) Law firms that did agree to accept a case seldom agreed to take
a second case because of the expense and time involved (often years) in
litigation. I personally was involved with the case of Howard Douglas for
fifteen years before the United States Court of Appeals for the Eleventh
Circuit reduced his sentence to life imprisonment. Several thousand hours
were involved in his case alone.
Of course, between 1976 and 1985, private attorneys were not paid
attorney's fees and often had to front their own court costs and expert
witness fees. Some law firms purportedly spent more than $100,000 in
defense of death row inmates.
Today, private counsel are entitled to attorney's fees and court costs
from the CCR Registry Fund. Nonetheless, there remains a limited number of
attorneys who are willing to do this type of work. I suspect that once
again, if this proposal is enacted, the burden will fall on the Florida
Bar to recruit counsel. Whether the Bar would be more successful in
recruiting qualified attorneys in 2003 than in was in the 1980s is
problematical.
4. What about the transition?
The CCRCs handle the vast majority of the cases now in the
system. If the offices are abolished, who is expected to assume the
responsibility for these cases? Certainly there is no obligation on a
terminated CCRC lawyer to continue to represent the client, although I am
sure that in some cases that would happen.
5. The real issue behind the proposal.
The real issue, in my opinion, is not cost savings. I do not
believe that there will be any. CCR and the CCRCs have done an excellent
job doing what they were created to do – represent the best interests of
their clients on death row. The governor wants Florida to adopt the Texas
model, which has been an unmitigated disaster. There will be more
executions because the quality of legal representation for the men and
women on Florida's death row will dramatically diminish.
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