The specifics of how a criminal case proceeds vary from state to state, but the process is largely identical across the country. Criminal law scholars have long criticized the criminal justice system’s ability to resolve cases accurately and efficiently. In his latest book, Rehabilitating Criminal Justice, criminal law expert Christopher Slobogin explores the process as seen from a particular state (Florida) and crime (capital murder).
Because Florida leads the country in exonerations of people sentenced to death, this focus helps expose problems with the criminal legal system. Slobogin, who chaired the American Bar Association’s Death Penalty Moratorium Project for the state of Florida, devotes a chapter to reviewing the Project’s work along several thematic lines, offering recommendations that, he argues, can be applied to capital and non-capital cases alike.
Scientific Evidence
Scientific evidence, particularly DNA testing, has played an important role in exonerations, but it has also contributed to wrongful convictions through forensic errors. To reduce those errors, the Project recommended, among other steps, standardized DNA testing procedures, certification of laboratories, and guidelines around testing procedures.
Prosecutorial Misconduct
The Project found that several of the people exonerated in Florida were convicted by prosecutors who knowingly relied on false testimony or withheld exculpatory information. Slobogin points out that these trends are not confined to Florida. The National Registry of Exonerations issued a report in 2020 concluding that prosecutorial misconduct occurred in 30% of exoneration cases nationwide.
Finding that prosecutorial misconduct rarely resulted in any kind of discipline, the Project urged courts to report malfeasance to the Bar, which should take appropriate action, up to and including suspension or disbarment.
Quality of Representation
On the other side of the courtroom, the Project found that defense attorneys in Florida were often overworked and insufficiently reimbursed, both at trial and post-conviction. “Not surprisingly, these pay and caseload difficulties have affected the quality of representation, both at trial and post-conviction,” Slobogin writes.
The Project recommended more stringent qualification standards aligned with ABA guidelines and a compensation structure that allows for higher payments for defense services, including the removal of fee caps and greater flexibility for interim payments.
The Political Influence on the Judiciary
Trial judges in Florida are elected to 6-year terms; judges on the Florida Supreme Court and District Court of Appeals are appointed by the Governor but subject to retention elections. The project assessment team recounted several instances in which judges in capital cases were influenced by upcoming elections. Consistent with that observation, Slobogin points to a national survey that found that 60% of respondents believed elections had a pronounced effect on judicial behavior in the state. Another showed that reelection pressures also affect how judges exercised their ability to override capital jury sentencing recommendations.
“None of this discussion is meant to claim that the average Florida trial or appellate judge presiding over a capital case is swayed by extrinsic, nonlegal factors,” Slobogin writes. “But it does suggest that replacing judicial elections with a judicial appointment system like that used in the federal system and most European countries would remove a significant source of pressure on judicial independence in both capital and noncapital cases.”
Jury Sentencing Recommendations
Capital sentencing juries in Florida only make sentencing recommendations – an almost unique feature among death penalty states — and they need not be unanimous. The project assessment team found that allowing nonunanimous jury recommendations can result in death sentences despite reasonable doubt, shorten the length of jury deliberations, and diminish jurors’ commitment to taking their role seriously. It also found that that laypeople struggle to follow capital sentencing instructions.
The project team recommended that jury sentencing verdicts be unanimous and dispositive, and that jury instructions be redrafted for clarity.
Clemency
Slobogin details how the process of pardons and sentence commutations, including death sentences, has become politicized in Florida over the last 40 years. “Florida governors have often made the signing of death warrants a part of their campaign strategy,” he writes. He points to research that states are 25% more likely to conduct executions in gubernatorial election years than others, and that the total number of executions performed is higher in election years.
The consequences have significant impact on clemency: only six inmates on Florida’s death row have received executive clemency since the reestablishment of the death penalty in the 1970s.
Slobogin and the project assessment team identified several potential changes to the current process, including a requirement that the Board of Executive Clemency issue a written statement of its findings, specify factors that it considers during its reviews, and allow death-sentenced inmates a public hearing ahead of determinations.
The Role of Race in the Death Penalty
A significant body of research has found that that defendants who kill whites are much more likely to be sentenced to death than defendants who kill Black people. One national study estimated that as many as one-third of death-sentenced defendants with white victims would have avoided the death penalty were the victims black. These disparities can be found in non-capital cases as well, even when factoring in crime rates of different populations.
The Project, which found the same disparities in Florida, recommended a state-sponsored study to determine whether such a disparity still exists and, if so, to develop prosecutorial training programs on racial issues and reevaluate death penalty cases in which the victim was white. “As far as I have been able to determine,” Slobogin writes 20 years later, all of these recommendations have been ignored.”
Mental Disability
The Supreme Court has held that executing people with intellectual disabilities constitutes cruel and unusual punishment. Florida’s ban on such executions was initially so narrow that it was invalidated by the Supreme Court. While its courts have now corrected course, Slobogin notes that “to date they have interpreted [the exemption] as narrowly as possible and have not been willing to extend it to people who are intellectually impaired due to brain injury.”
Slobogin also highlights that Florida, like many other states, permits execution of people who were mentally ill at the time of their offense and at least as impaired as people with intellectual disability. The state also does not have a clear process for evaluating the competency of those who waive their appeals or are about to be executed. The project assessment team made recommendations to change these laws accordingly.
Innocence
To alleviate the risk of innocent people being sentenced to death, the project team recommended that Florida establish two independent commissions, the first to identify and remedy the cause of wrongful convictions in capital cases and the second to review claims of factual innocence that, if sustained, could be passed to a panel of judges.
“Criminal outcomes across the board are tainted by incompetent and fraudulent scientific experts, biased and unethical prosecutorial charging and trial decisions, deficient defense attorney qualifications and compensation, the corrupting effect of judicial elections, the variable nature of jury decision-making, politically charged clemency decisions, racial disparities, and insensitivity to mental disability,” Slobogin concludes. “The recommendations in this chapter can help correct these flaws.”
Rehabilitating Criminal Justice, published by Cambridge University Press, is currently available for pre-order.
