Friday, March 24, 2017

Lawson Lamar's Defense of the Death Penalty Does Not Hold Water

Recently, Lawson Lamar, the former State's Attorney for Orange and Osceola Counties in Florida, wrote an editorial for the Orlando Sentinel defending the death penalty in Florida and defending Governor Scott's removal of the current State's Attorney from the Markeith Lloyd case.  See article here.  It is my opinion that neither his defense of the death penalty or of the Governor holds water.

I respect Lawson Lamar and his service, in every capacity.  I respect his experiences and can understand why he favors the death penalty.  However, I believe his reasoning for his support is specious at best, and his call for the removal of the current State's Attorney is wrong and not good for anyone.

His basic argument for the death penalty is that if we don’t impose it, or at least threaten to, people who commit crimes of all sorts will have no reason not to just kill witnesses, or the cops trying to arrest them.  This reasoning is hogwash and has no basis in fact.  The murder of witnesses is a rare occurrence, for people facing the death penalty, as well as for those who are not facing the death penalty.  And the motive for elimination of the witness may or may not have anything to do with whether the accused is facing the death penalty or not.  Most accused who are facing the death penalty are facing life imprisonment without parole as the next best option if they are convicted.  Most of the people I’ve represented facing these options do not find the life penalty option to be more favorable.

As for whether the threat of the death penalty increases the safety of cops is once again a specious argument.  It is doubtful that a person who shoots a cop considers that he or she may be punished by the death penalty.  They do it to escape or in the heat of the moment.  The penalties for the crime(s) they are committing are not running through their minds before they commit them.  Currently, and sadly, the murder of cops is on the rise.  One reason is for the motives I’ve already discussed.  The other is that we are undergoing a cultural shift in some communities where cops are felt to be an enemy and need to be eliminated.  Fortunately, few ascribe to this kind of thinking and such murders are still rare.  I would also suggest that people who commit cop killings for reasons other than escape or wanting to commit suicide by cop, are the type of thrill seekers who would do such a crime in any case, or are criminals anyway who will use any excuse to kill a cop.  Again, fortunately, there are few of these people out there.

The threat of the death penalty only keeps those who are not likely to ever be facing it honest.  Those who are facing it, who are already sitting on death row or who have committed a crime for which it is a penalty, didn’t care about the penalty for the crime when they committed it and still do not.  Some may have thought they could get away with it, but not many.  The death penalty is State retribution for a crime.  Sometimes, the prosecutors seeking it couldn’t care less what the actual victims of the crime or their family members would have wanted or want.  Some victims do not cry out for the death penalty.  The State seeks it anyway.  So, if you are going to defend it, defend it as a moral and legal State sanctioned retribution for the crime committed.  It cannot be defended as a crime reducing instrument nor as being less costly to the government.  We have seen how many times juries, prosecutors, and cops have gotten it wrong.  There is no telling how many innocent people have been murdered, excuse me, executed, in the name of the State.  So, justify it as revenge or as retribution, but not as a deterrent to crime.

Lawson Lamar also calls for governor Scott to remove Aramis Ayala as the duly and lawfully elected State’s Attorney for Orange and Osceola Counties.  It is my opinion that it would be unlawful for him to do so.  The Governor is authorized to remove a State’s Attorney from a case when such attorney is disqualified to try a particular case (the accused or victim is a relative, the attorney is a witness, etc.) or for any other good and sufficient reason.  See

27.14 Assigning state attorneys to other circuits.—
(1) If any state attorney is disqualified to represent the state in any investigation, case, or matter pending in the courts of his or her circuit or if, for any other good and sufficient reason, the Governor determines that the ends of justice would be best served, the Governor may, by executive order filed with the Department of State, either order an exchange of circuits or of courts between such state attorney and any other state attorney or order an assignment of any state attorney to discharge the duties of the state attorney with respect to one or more specified investigations, cases, or matters, specified in general in the executive order of the Governor. Any exchange or assignment of any state attorney to a particular circuit shall expire 12 months after the date of issuance, unless an extension is approved by order of the Supreme Court upon application of the Governor showing good and sufficient cause to extend such exchange or assignment.

Many people seem to believe, Lawson Lamar included it seems, that the Governor can remove a State’s Attorney from a case, or even from office, anytime that State’s Attorney displeases the Governor, the law enforcement community, or a friend.  If that were so, our State’s Constitution would not call for and allow for the election of the various State’s Attorneys.  The Governor would just appoint them.  If we acquiesce to Lawson Lamar’s call, that could be just what we could have.  Is that what Lawson Lamar wants?  Surely, if it were he under fire, he wouldn’t think so.

If the Governor removes a State’s Attorney from one case or from office, the Governor then chooses who gets to replace him/her from among the other elected State’s Attorneys. Who do you think he’s going to choose?  Someone who may still think the death penalty should not be on the table, or someone he is assured will seek the death penalty?  The death penalty is not requested in many cases, even in many where most people think it should apply.  Whether or not the death penalty is sought is discretionary with the presiding State’s Attorney.  Just like the Governor has discretion to do or not do many things, the State’s Attorney, just like the Governor can use any lawful reason for acting or not acting.  Is what the Governor or the State’s Attorney does in a certain case always pleasing to the electorate or a certain constituency?  Certainly not.  Does that make it wrong, illegal, removable, or impeachable?  No, not if it was otherwise lawful.

What Aramis Ayala did in the Markeith Lloyd case is distasteful and is the wrong decision for the Governor, the legislature, his victims, and, probably, most of her constituents.  But, is what she did unlawful, removable, or impeachable?  No, so long as she can aggressively pursue a conviction for the crimes he is alleged to have committed.  I believe she can do this.  Was her reasoning for not pursuing the death penalty politically wrong?  Probably.  But, did she have the authority to make the decision?  I think yes.

I do not believe in the death penalty and believe it should be taken off the books.  Still, I think Ms. Ayala made the wrong decision here.  Nonetheless, she had the discretion to do so and I do not believe the Governor has, or should have, the authority to remove her from the case or from office as long as the law is what it is.  It would set a very bad precedent.