Editorial: Death Penalty Reform

The New York Times, published March 12, 2001 

The fight to reform the nation's flawed and uneven death penalty system
resumed in Congress last week with the introduction of a bill aimed at
reducing the risk of executing innocent people. The bipartisan Innocence
Protection Act of 2001 would address the problem of incompetent lawyering in
death penalty cases by establishing new national standards for the
representation of capital defendants, and by providing resources to help meet
them. It would also require the preservation of biological evidence — for
example, hair fibers — that could later prove crucial to an appeal, and
guarantee federal and state death-row inmates access to DNA testing if that
could help exonerate them.

Sponsored by a bipartisan coalition of lawmakers led by Senators Patrick
Leahy, Democrat of Vermont, and Gordon Smith, Republican of Oregon, and by
Representatives Bill Delahunt, Democrat of Massachusetts, and Ray LaHood,
Republican of Illinois, the bill has picked up significant support in the
year since a similar bill was introduced. On the House side, most notably,
the legislation now boasts 140 Democratic and Republican co-sponsors. That
total, nearly a third of the entire House, reflects the addition of about 60
new House sponsors, and the growing consensus across the country that the
present death penalty system is badly broken.

The bill is a special test for President Bush. Mr. Bush has previously
expressed general support for the bill's goal of encouraging greater use of
DNA evidence to prevent mistakes in capital cases. But as governor of Texas,
even while his state was performing a record number of executions, he showed
little interest in the measure's other core goal of ensuring that capital
defendants everywhere receive competent legal counsel. Perhaps he will view
things differently from the White House.
___________________________________________________________

GOP designs bills to mold the courts

By Tim Nickens
St. Petersburg Times, published March 11, 2001

TALLAHASSEE -- Dressed in their long black robes, members of the Florida
Supreme Court were greeted by applause from state legislators last week as
they walked into the House chamber for Gov. Jeb Bush's State of the State
address.

The justices' ears should have been burning.

Before they arrived, House Speaker Tom Feeney ripped into the courts.

The Republican alluded to decisions by Florida courts that have blocked
restrictions on abortions, rejected accelerated death penalty appeals and
stalled changes to civil courts approved by the GOP-controlled Legislature.
He quoted James Madison, Thomas Jefferson and Abraham Lincoln.

"No one in this body believes that the judiciary should not be independent
from coercion by the executive branch or the legislative branch over their
decisions," Feeney concluded, "but if you believe in democracy, then you must
defend the proposition that it is the elected Legislature, and not judiciary,
that should legislate. This House should defend democratic traditions."

Once again, the courts are in the cross hairs of Republican legislators upset
by rulings that have prevented some laws they passed from taking effect. Once
again, Bush is staying quiet as efforts to change the way Supreme Court
justices and state judges are selected work through legislative committees.

"I'm going to allow the process to work on that for a while," the governor
said after avoiding the issue in his speech.

But there are differences this year that make it more likely some changes
could be approved.

Republican legislators have not forgotten that the state Supreme Court twice
allowed recounts to go forward after the presidential election. That kept
alive Al Gore's effort to overtake George W. Bush until the U.S. Supreme
Court stopped the recounts.

Unlike some U.S. Supreme Court justices, the Florida Supreme Court justices
have not granted interviews or further explained their reasoning.

Two of the most outspoken critics of the state court in December were Feeney
and Majority Leader Mike Fasano of New Port Richey. While former House
Speaker John Thrasher's barbs toward the court were just as pointed last
year, Feeney sounds more determined to pass legislation.

The efforts also are gaining broader outside support.

Outside the state Capitol, several independent efforts are under way to
gather signatures to place constitutional amendments on the 2002 ballot that
would either recall justices or change the way justices are appointed.

Inside the Capitol, the issue is no longer dominated by socially conservative
groups such as the Christian Coalition. Now some business groups are jumping
on the bandwagon.

Lobbyists representing the Florida Retail Federation, the Florida Chamber and
TRUE, a business coalition, testified in favor of a bill that would give the
governor complete control over judicial nominating commissions that screen
and recommend applicants for judgeships.

"I'm feeling more confident, no question," said Rep. Fred Brummer, R-Apopka.
"Anything stepping into the judicial arena has much greater interest than
four or five months ago."

Brummer is sponsoring several proposals, including:

A constitutional amendment that would require approval of two-thirds of the
voters rather than a simple majority to retain Supreme Court justices and
judges on the district courts of appeal.

It also would eliminate judicial nominating commissions, enabling the
governor to fill court vacancies with confirmation by the Senate.

A constitutional amendment that would change the role of the judicial
nominating commissions so the governor would receive all names of eligible
applicants.

The commissions now screen the candidates and submit lists of finalists to
the governor.

The legislation supported by the business groups that would enable the
governor to appoint all members of the nominating commissions.

Attorney General Bob Butterworth, a Democrat, predicted voters would reject
the constitutional amendments.

"If it gets on the ballot, it's going to lose, but it is going to hurt them,"
Butterworth said of state lawmakers. "It's going to hurt their legacy. I
don't think they want to tell their grandchildren, "I destroyed the court
system.' "

The constitutional amendments may be long shots.

It takes approval by 60 percent of the members of both the House and Senate
to put constitutional amendments before the voters. The House Committee on
Judicial Oversight postponed voting on the proposed amendments last week, and
the committee will discuss them this week.

In the Senate, there appears to be little appetite for a direct assault on
the Supreme Court. The issue is not among Senate President John McKay's
priorities, and it is not on Senate Judiciary Chairman Locke Burt's radar
screen.

"If you're unhappy with the Supreme Court," the Ormond Beach Republican said,
"just wait."

The seven justices of the Florida Supreme Court are appointed by the
governor, receive annual salaries of $150,000, and go before the voters every
six years for merit retention.

Six justices were appointed by Democratic governors, and a seventh was
jointly appointed by Govs. Lawton Chiles and Bush. Justices Harry Lee Anstead
and Charles T. Wells are up for merit retention in 2002. Justice Leander Shaw
will retire in 2003.

But the overhaul of judicial nominating commissions that would give the
governor far more power appears to have a better chance of becoming law. The
bill is moving through the House, and McKay indicated Friday he might be more
open to that idea.

Under current law, the governor appoints three members to each nominating
commission and the Florida Bar appoints three. Those six appointees pick
three more, for a total of nine on each commission.

The House Committee on Judicial Oversight approved Brummer's bill last week
that gives the governor the authority to make all nine appointments, although
five would have to be members of the Florida Bar.

Diane Carr, a lobbyist for the Florida Retail Federation, called the
legislation "a very moderate, reasonable proposal."

But Florida Bar President Herman Russomanno said it would inject more
politics into selecting judges and set the state back 30 years. The League of
Women Voters and the Association of Criminal Defense Lawyers also criticized
the proposal.

"To the victor goes the spoils when it comes to legislation, but not when it
comes to the judiciary," said David Rothman, president of the Florida
Association of Criminal Defense Lawyers.