FLORIDA: Privatizing death row appeals will surely accelerate executions

It's the governor's job to make tough choices and propose an overall state budget. It is everybody else's job to whine and nitpick his suggestions, line by line. I'm takin' another turn at bat.

One of the penny-wise ideas Gov. Jeb Bush has for getting through the next budget year is to fire all the lawyers on the state payroll who represent death row inmates in their appeals.

The governor wants to shut down the state offices in Tallahassee, Tampa and West Palm Beach that represent most death row inmates during their postconviction, "collateral" appeals. These offices now cost the taxpayers more than $9-million a year.

Bush would turn over the whole job to the private sector, spending less than $6-million for a registry of lawyers who would sign up. The governor says private lawyers would handle cases "in a more professional, timely and cost-effective manner."

It ought to be said here that it was a conservative idea in the first place that Florida should have an office of state-paid lawyers to represent death row appeals. Death penalty critics opposed the idea at the time, calling it "greasing the skids" for carrying out executions.

The state attorney general in the mid 1980s was Jim Smith, then a conservative, tough-on-crime Democrat. (Smith went on to switch parties and has worked under both of Florida's Republican governors since then, Bob Martinez and Jeb Bush.)

In 1985, Smith helped persuade the legislature to create an Office of Capital Collateral Appeals to speed up executions. Might as well give 'em a lawyer, Smith argued, taking away that excuse for delay.

Smith still believes so today. I ran into him in the Capitol lobby last week and asked him about Bush's proposal. He frowned. "I think it's a bad mistake," he said.

The office, called the CCR, became unpopular with the legislature. It attracted idealistic, liberal lawyers who opposed the death penalty. They saw their goal in every case as blocking executions no matter what.

In the late 1990s, the legislature tried to rein in the CCR. The statewide office was split into 3 regions. Governors began to hire bosses with more of a prosecutorial than defense background; some had never handled death cases at all.

Meanwhile, the legislature created a registry of private lawyers who agreed to take death cases when the state offices had a conflict. But these private lawyers had to agree not to bill the state for more than 840 hours of work. This is how Bush now proposes to handle all cases.

There is a teeny, tiny problem.

Any lawyer who has put heart and soul into these ultimate cases (which is the kind of dedication it takes) knows it takes a heck of a lot more than 700 or 800 hours. One study concluded it takes an average of 3,300 hours to provide effective representation in a death penalty case. Even if that's inflated, the state's figure is awfully chintzy. The governor risks a Texas-style system of lawyers who take death cases as a last resort -- and who have every incentive to cut corners.

There also is evidence that getting rid of the state offices wouldn't even be "penny-wise" at all. One study done by a legislative commission found that the revamped state offices had saved more time, both in laywer hours and in the filing of court documents than the private registry.

Although the governor's stated purpose is to save money, his secondary purpose here is to speed up executions -- by reducing the time lawyers have to work on cases.

"Gov. Bush," his budget proposal says, "believes that capital cases should be resolved within 5 years after a death sentence is imposed -- not 20 years."

Absolutely, the families of murder victims deserve justice within a reasonable time. In recent years, we already have drawn firm, better deadlines in appeals. The worst examples of justice delayed are old cases that predate the new rules. Eventually none will be left.

In the meantime, we shouldn't try to speed up executions by cheaping out on the legal representation of death row inmates. We will only end up paying for it at the other end with even more appeals and delays. Jim Smith had the right idea in the 1st place.