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Martin Dyckman

Martin Dyckman: It’s always about the money

The Miami Herald columnist Leonard Pitts wrote a powerful case for Donald Trump‘s impeachment, in the style of an open letter to the “Dear Republicans in Congress,” that I was reading to my wife as she prepared breakfast the other morning.

At the part where Pitts asked, “Have you no loyalties deeper than party?” Ivy broke in.

“The money,” she exclaimed.

That nailed it. It is always about the money.

It’s about the campaign money they expect to continue bagging from the Kochs and other oligarchs who embrace the Trump agenda even as they despise the man.

It’s about the money, the great gobs of money that would befall the wealthier classes, the true constituency for most of them, from the sort of tax “reform” they are counting on Trump to sign.

It’s about the money they would gain for themselves from the Trump tax scheme. While the outlines he proposed are strikingly thin, they are enough to show that Congress members themselves would make out better than bank robbers.

The middle class and poor would get essentially nothing. The foregone revenue would take America back to where the oligarchs want it — a sociopolitical stone age, with the new robber barons doing what they want and getting what they want, with only minimal interference, if any, from taxes, regulations or labor unions.

The Congress does not simply represent the Republican Party’s true constituency. It is part of it.

The most recent available figures estimated the average Congressional net worth at around $1 million. To be one of the richest 50 members required a minimum of $7.28 million in net worth. Of those 50, 32 were Republicans.

There are Democrats, no doubt, who would vote for the outrageous Trump tax scheme if they thought their voters would forgive them. Most of the Republicans act as if they don’t have that particular worry.

For the Democrats and the few Republicans who do care to put their country first, the question may well be whether it would be best to be rid of the guttersnipe in the White House sooner or later.

From an exclusively partisan standpoint, it would suit the Democrats to have him still twisting in the ill winds of own making as the 2018 midterm elections approach. This would be better for policy as well, since every Republican Congress member who isn’t totally insulated by gerrymandering would have to worry about casting his or her vote with the extremely unpopular president. And the fact that Trump still refuses to release his tax returns, despite all the promises, raises profound suspicions about any tax legislation bearing his label.

If Trump were dethroned now, whether by his Cabinet or by a late-awakening congressional conscience, the Democrats would be confronting in President Mike Pence someone who has a long-standing and genuine commitment to all the hideously anti-social policies that Trump never shared until he saw them as keys to the Republican nomination. Lacking Trump’s offensive personality, Pence could take America backward even faster and farther than Trump.

The more important issues, though, are the clear and present danger of keeping an uneducated, uneducable and wildly impetuous man-child in proximity to the nuclear codes, the forfeiting of American influence and prestige for which he is responsible, and the disgust that sickens most of us with every new disclosure of his abuses of power and of the foreign influences in his campaign.

Whatever happens in the short term, both political parties should be planning how to never again nominate someone so singularly unfit and dangerous as Trump.

The electoral system was supposed to prevent that — “a moral certainty,” as Alexander Hamilton put it, “that the office of President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

When Hamilton wrote “seldom,” he was not thinking “forever.”

But the Founders provided for a day when their precautions would fail.

At the outset, the party factions in Congress caucused to nominate their candidates for president. There was never a doubt as to their qualifications. No outsider cracked the system until Andrew Jackson came along, and he was much like Trump, who admires him, in being ill-informed, reckless and ruthless.

Congress, for all its enormous faults, could be an inherently better judge of presidential timber than the present primary election system. But to try to give Congress control of who runs would be a fool’s errand, not to mention unwise.

What Congress should do — what it must do — is to accept the constitutional responsibility the Founders assigned to it in the event of a rogue presidency. It is the fail-safe they wrote into the Constitution.

As Pitts described it to the Republicans, “Your course of action, if you have even a molecule of courage, integrity or country love, should be obvious. Impeach him now.”

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Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

 

Martin Dyckman: Home mortgage interest deduction, the third rail of real tax reform

There’s a $71-billion federal welfare program that costs more than aid to needy families, more than the earned income tax credit for working families, and almost as much as food stamps, but goes in great measure to people who don’t really need it.

I’m on that dole. You may be, too.

It’s the home mortgage interest deduction, the largest of the loopholes in the tax code, and the one that almost nobody in Congress or the White House has the guts to talk about, much less touch.

An article in the May 14 New York Times Magazine argues convincingly that the mortgage interest subsidy has contributed to making homeownership “the engine of American inequality.” It’s the big reason why the average homeowner has 36 times the net worth of someone who rents.

Florida aggravates that inequality with its generous homestead exemption for owner-occupied residences. That issue deserves some thought before voting to make matters worse, as a constitutional amendment on the November ballot would do.

The Times Magazine author, Matthew Desmond, won the Pulitzer Prize for his 2017 book, “Evicted: Poverty and Profit in the American City.” He quotes a 1996 study that concluded that eliminating the mortgage interest subsidy and the real estate tax deduction would depress home prices by as much as 17 percent. Turn that around, and it means the government has artificially inflated the value of what constitutes the principal asset for many homeowners. Meanwhile, it puts far less money into assistance for renters, who are the ultimate victims of this policy.

“The MID allows homebuyers to collect more after-tax savings if they take on more mortgage debt, which incentivizes them to pay for more for properties than they could have otherwise,” says Desmond. “By inflating home value, the MID benefits Americans who already own homes — and makes joining their ranks harder.”

Even if it could be fairly argued that homeowners deserve government handouts that renters don’t, the mortgage interest deduction is skewed, like virtually all deductions, entirely in the wrong direction. That works three ways.

The larger one’s mortgage, the more the interest you pay, and the more that the government effectively refunds to you. The higher your marginal tax bracket, which usually reflects how wealthy you are, the greater is the percentage of that government refund. And if you don’t have enough deductions to itemize them, or don’t figure it’s worth the bother, you’re not on the dole at all.

The only limits, for joint returns, are a $1-million cap on the amount of deductible debt for a primary residence and $100,000 on deductible home equity borrowing.

In 2014, Desmond points out, there were 1.5 million households earning between $40,000 and $50,000 a year whose tax returns claimed the interest deduction, receiving an average benefit of $14 a month. Meanwhile, 6.5 million households with earnings above $200,000 deducted mortgage interest for an average benefit of $391 a month.

“What this means in aggregate,” Desmond writes, “is that households with at least six-figure incomes receive more than four-fifths of the total value of mortgage interest and property tax deductions.”

Real tax reform — not such as we’re likely to see from this Congress or this president — would ideally end all deductions and cut everyone’s tax rates. A middle ground would be to lower the maximum deductible mortgage debt and fix everyone’s deduction percentage — not just for real estate but for all deductions — at the lowest of the tax brackets. But two of Washington’s most potent lobbies, real estate and charities, don’t intend to let that happen.

Speaking of tax reform, how long has it been since Florida had one?

Forty-five years.

Gov. Reubin Askew, elected in 1970 on a promise to make Florida’s consumption-heavy tax code fairer by taxing corporate income, pushed the 1971 Legislature to pass the necessary constitutional amendment and got the voters to ratify it, with 70 percent in favor, in a special election.

At his insistence, the 1972 Legislature used part of the new revenue to remove the existing sales tax from household utility bills and most residential rentals.

That was the last time Florida did anything for renters.

House Speaker Richard Corcoran‘s pending constitutional amendment would increase the existing $50,000 homestead tax exemption for every qualifying residence assessed at between $100,000 and $125,000 or more. The exemption would cancel up to another $25,000 of taxable value. That this applies only to county, city and special district taxes and not to school taxes doesn’t make it fair. The Senate’s staff estimated that it would cut nearly $795 million from affected budgets by fiscal 2020, assuming tax rates stay the same.

So to avoid closing fire stations, parks, libraries and other attributes of a modern functional modern society, local governments would have to get that money back from somewhere. That somewhere will likely be commercial property and, yes, those oft-forgotten citizens, the renters. You don’t think their landlords will eat the tax increases, do you?

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Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Martin Dyckman: Judges are not politicians, nor should they play politics

When the Florida Constitution Revision Commission was debating the election of judges 20 years ago, I sat in the gallery to hear my own words used to attack something that my editorials and columns consistently had supported.

The issue was whether all trial judges should be chosen exclusively by appointment, without elections, in the same manner as Supreme Court justices and judges of the district courts of appeal.

A commission member who opposed that found a column in which I had flayed the Judicial Nominating Commission of the 15th Circuit — Palm Beach County — for trying to sandbag Gov. Lawton Chiles into appointing a favored candidate to a vacated circuit judgeship. Chiles spoiled the plot by appointing the nominee they didn’t think he would choose, a Republican who had contributed to his opponent, and who is now Florida’s chief justice, Jorge Labarga.

The speaker was quoting the column out of context. The newspaper’s editorials and my own signed columns had argued consistently that of all the ways to pick judges, election is the worst.

I still think so. Florida’s judicial nominating commission process is still by far the best — in principle.

In practice, however, it has been corrupted by the Legislature’s decision in 2001 to let the governor — at the time, Jeb Bush — appoint all nine members of each commission. They had been set up to be independent, with the governors appointing only three of each nine. That’s something the present Constitution Revision Commission should correct, although it likely won’t. Gov. Rick Scott, who appointed 15 of the 37 members including the chairman, has played politics with the nominating panels like no other governor.

But I digress. A nagging fear of all print and broadcast commentators is that their words will be taken out of context in some campaign ad in support of someone or something they actually oppose. If you write that somebody is “the best of a weak field” in a primary, expect to read in November that you called him “the best …”

Ordinarily, there’s no remedy for the twisting of truths out of context in politics, other than to call out the offenders. But there is a potent one when it comes to judicial races. The codes of conduct that legally bind judges and lawyers forbid misrepresenting one’s own qualifications or those of an opponent. The Florida Supreme Court has put teeth into those codes. It took another bite last week.

On Aug. 29, several weeks after her present 90-day suspension without pay expires, Circuit Judge Kimberly Shepard of the Ninth Judicial Circuit — Orange and Osceola counties — will journey to Tallahassee for a command appearance before the Florida Supreme Court.

She will stand before the bench, as other judges have had to do, to hear the chief justice read a humiliating public reprimand for unethical conduct during in her successful 2014 campaign for an open seat. The suspension, reprimand and payment of court costs, as ordered, followed a recommendation from the Florida Judicial Qualifications Commission (JQC.)

The crux of it was a campaign ad purporting to quote the Orlando Sentinel in her favor.

“Ms. Shepard has done well,” the quotation said. “She has kept her promises. She has worked hard. She has maintained her integrity.”

What the ad did not say was that the comment was from an editorial endorsing her re-election to the Florida House of Representatives in 1994, 20 years earlier.

The 1994 editorial included the sentences “she has legislated effectively” and “she has served her constituents diligently.” Her 2014 ad was edited to leave those lines out.

The out-of-context quotation could easily have misled voters into thinking that it referred to current service as a judge. She wasn’t a judge, nor was she claiming to be.

She circulated the ad after the Sentinel had endorsed her opponent. The JQC’s hearing panel concluded that her “selective editing … was much more than a matter of inexact punctuation, or a mistake.” She believed her opponent to be unworthy, the panel said, “and that any action she took to defeat him was justified.”

Shepard’s defense consisted mainly of these arguments: Her character hadn’t changed in the 20 years since the newspaper had endorsed her, punishing her for campaign speech would be unconstitutional under the First Amendment, the ad was essentially true, and the Florida regulation in question was overbroad.

Unfortunately for her, however, the U.S. Supreme Court had disposed of her main point in a 2015 decision upholding a reprimand for a Tampa lawyer for conduct during a failed campaign for a judgeship.

“Judges are not politicians, even when they come to the bench by way of the ballot,” the U.S. court said. “And a state’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.”

“A judicial candidate who knowingly misrepresents any fact concerning the candidate or an opponent necessarily intends to mislead the public concerning the judicial election, thus undermining the public confidence in the integrity of the judiciary,” wrote the Florida Supreme Court last week in its unanimous opinion against Shepard.

It was far from the first time the court has had to say that.

Shepard is the 29th judge to come to grief before the JQC and the court for campaign-related conduct. Six were removed and two resigned before it came to that. The cases included some severe campaign law violations, neglect of clients during campaigns, and numerous instances of campaign misrepresentations.

The election-related cases represent a significant fraction — 14 percent — of all those with which the JQC and the court have dealt in public.

Complaints that it concludes are unfounded or settles by privately counseling a judge are confidential under the Florida Constitution, which is something else the Constitutional Revision Commission should fix. There’s no way now for the public to judge how well the JQC is working.

But elections aren’t working well either. On the rare occasion when a circuit or county court judge is challenged for re-election, few candidates apply. Dozens come forth, though, when a vacancy is to be filled by appointment. Most lawyers agree with the point Alexander Hamilton made when he wrote, “The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges …”

Shepard won’t be the last Florida judge who gets in trouble for playing politics to secure what should not be a political position.

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Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Martin Dyckman: Elian Gonzalez, a painful chapter in Cuban-American history

Some things in life ought to be above politics, none more so than a parent’s relationship to a child. How this truth was sorely tested in Florida not so long ago is the subject of a new documentary that we should all want to see. CNN reportedly will air it sometime after it begins to appear in theaters later this month.

As described in the Miami Herald Sunday, it relates the “painful chapter in Cuban-American history” that began early on Thanksgiving morning 1999 when two South Florida fishermen found 5-year Elian Gonzalez tied to an inner tube in the ocean.

His mother and 10 others who were trying to flee Cuba had drowned two days before when their boat swamped. His father, Juan Miguel Gonzalez, was still in Cuba, where Elian had frequently stayed with him after his parents’ divorce. He had not consented to his ex-wife removing the boy from the island.

Relatives in Miami took custody of the child and refused the demands of his father and the Cuban government to send him home, turning a human saga of death and survival into an international incident.

To the Miami relatives and much if not most of the Cuban exile community there, it was a struggle between the democracy where they thought he should live and the dictatorship where his sole surviving parent lived. A father’s rights to his son seemed no part of it. Little thought was given, not in public anyhow, to how Americans might feel if it were a case of an American father trying to retrieve a child from Cuba.

The relatives filed asylum applications on Elian’s behalf, but the Immigration and Naturalization Service rejected them. After interviewing both the boy and his father, the agency found that the father had not been coerced by the Cuban government and that 6-year-olds “lack the capacity to file personally for asylum against the wishes of their parents.” The case went to court. A district court sided with the government, and the relatives appealed to the 11th U.S. Circuit Court of Appeals, which upheld the INS June 1, 2000.

That court said that although it was “troubled” by the fact that Cuba was a dictatorship, the INS was “reasonable” in concluding that the father’s wishes trumped political concerns.

By then, armed federal agents acting under Attorney General Janet Reno‘s command had rescued Elian, or kidnapped him, depending on one’s point of view, to reunite him with his father in Washington. The April 21 raid was incendiary news, especially at Miami, where Reno had been the state attorney before becoming Bill Clinton‘s longest-serving Cabinet member.

Father and son remained in the United States while the Miami relatives appealed to the U.S. Supreme Court. On June 28, the high court refused to hear the case. Elian and his father returned to Cuba a few hours later. They live there still; Elian is now an industrial engineering graduate, a member of the Young Communists Union, and an admirer of the late dictator Fidel Castro.

I had known Reno for years, considered her a friend, and wasn’t surprised by the courage she displayed in doing what she knew would be greatly unpopular back home.

It was the last of her significant controversial decisions she made at the Justice Department, one of which was to authorize the independent counsel’s investigation that led to Clinton’s impeachment by the House.

But there was the ex-president, speaking at her memorial service December in Miami, praising her as the person whom he knew would always do what she thought was right, no matter the consequences.

The Gonzalez story was underplayed on that occasion. The Cuban community was still celebrating Fidel Castro’s recent death, and Reno’s family thought it best not to reopen old wounds by revealing the telephone call they had received after she had lost her long struggle with Parkinson’s disease. I had been told, but in confidence.

This week, upon news of the documentary, they decided the time had come.

The week after Reno died, her surviving sibling, Maggy Hurchalla, answered the phone at the Reno homestead in Kendall.

“This is the Cuban embassy in Washington, D.C.,” the caller said. “We have a message for the family of Janet Reno …

“The family of Elian Gonzalez would like to convey their love and gratitude for sending their boy home.”

Yes, there are still some things that are more important than politics.

___

Martin Dyckman is a retired editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Martin Dyckman: Florida needs answers on death penalty discretion

The courtroom at the Florida Supreme Court seats 164, which may not be enough for all the attorneys, organizations and individuals who have intervened in the unprecedented case of Aramis Ayala v. Rick Scott.

Six groups have weighed in as friends of the court on behalf of Ayala, the state attorney for Orange and Seminole counties who is fighting to regain the 23 murder cases that the governor assigned to another prosecutor after she said she would not seek the death penalty in any of them

Among her supporters is a group of 45 prominent lawyers and judges, most well-known nationally. Among them are four former Florida Supreme Court justices, two former presidents of the American Bar Association, nine current and former district attorneys in other states, and four former U.S. Justice Department officials including Jamie Gorelick, who was Attorney General Janet Reno‘s deputy.

Three “friends of the court” support Scott, among them the Florida House of Representatives and the Florida Prosecuting Attorneys Association, which sided with the man who controls their budgets rather with the colleague who is fighting for their independence as well as hers.

One group of families of murder victims is backing Ayala. Another is for Scott.

Despite the extraordinary interest, this case is not going to decide whether the death penalty is as error-prone, financially wasteful and as altogether counter-productive as Ayala correctly insists.

Florida needs answers to those questions, but capital punishment is one of those issues where precious few politicians care to be confused by facts. As the steam was building in Ayala v. Scott, the House of Representatives defeated a budget amendment calling for an objective study of the costs and consequences of the death penalty.

For the court, however, the questions are simply these: Did Ayala abuse her discretion in deciding as she did? Did Scott abuse his in stripping her of those 23 cases?

It’s one of the most significant arguments the court will ever hear. Florida prosecutors make perhaps tens of thousands of judgment calls every year: What crime to charge? What crime not to charge? What plea to accept? They have even more power than the judges in deciding who goes to prison and for how long.

Should a governor be able to supersede one of those decisions simply because he doesn’t agree with it? Carried to an extreme, that makes him a dictator.

As the brief of the 45 lawyers and judges argues, “The real issue—and the one properly before this Court—is the independence of state attorneys to exercise their discretion without interference from other political branches of government. Indeed, this case puts squarely at issue the fundamental independence of prosecutors and the judicial branch …

“The Florida Constitution does not allow the governor of the state to support the exercise of prosecutorial discretion only when he finds it agreeable to and to intervene when he feels otherwise.” the brief says.

This is the gist of Ayala’s case, although she contends that the governor’s power to reassign state attorneys is a lot less limited than Scott’s predecessors have taken it to be. They sent in substitutes not only when some prosecutor reported a conflict of interest, such as a relative or former client facing charges, but also in cases of official misconduct where they believed the resident prosecutor was compromised by friendship or indifference. But I can recall no case like Ayala’s, in which the issue is not whether to prosecute for a crime but only whether to ask for a specific penalty.

Scott contends that Ayala made an “across the board determination not to undertake a case-specific analysis.” In effect, his lawyers say, she decided not to exercise her prosecutorial discretion.

His position appears somewhat inconsistent with what the governor’s office wrote last year to a citizen who had complained about another state attorney.

State attorneys are independently elected, charged with “certain discretionary duties,” and answerable only to their voters, the letter said.

All this begs the question of whether Florida will be harmed in any way if Ayala gets the cases back and the defendants she convicts go to prison for life instead of to death row.

The answer is no. Florida would be better off.

The killers would be behind bars for life. Anyone who thinks that’s getting away with murder should consult the ghost of Aaron Hernandez. Florida would spend a lot less money putting them in prison and keeping them there. There would be no multiple rounds of appeals, many of them to federal courts beyond the state’s control. The families of victims wouldn’t have to wait 20 or 30 years or longer for closure.

In any event, the voters of Orange and Seminole counties will have the opportunity to pass judgment on Ayala three years from now. Why isn’t Scott willing to wait for that? Is it because that would be no help to his U.S. Senate campaign next year?

It would be useful — and overdue — to have a comprehensive study from the Legislature’s highly capable and nonpartisan office of Office of Program Policy Analysis and Government Accountability. Among other things, the people deserve to know how much extra money they are spending on death cases. OPPAGA should also be tasked to explain in detail what happens to the enormous majority of killers who don’t end up on death row. In fiscal 2015, for example, Florida courts sent 942 people to prison for homicides ranging from manslaughter to first-degree murder, but only eight to death row.

A safe guess would be that prosecutorial discretion accounted for virtually all of that. Isn’t it time to know?

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Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Martin Dyckman: On death warrants, Florida governor’s ‘awesome moral responsibility’

When former Florida Gov. LeRoy Collins was nominated in 1964 to head the nation’s new Community Relations Service, South Carolina Senator Strom Thurmond opposed him aggressively because Collins had renounced racial segregation.

“…I hope that as long as the good Lord lets me live on this earth I will continue to grow and to recognize changes and to meet the new responsibility as changes require,” Collins said.

The widely reported confrontation prompted Dessie Horne Williams, a Miami schoolteacher, to write to Collins, recalling a meeting with him five years earlier at the governor’s office.

“(W)e have always thought of you as a kind, understanding man, who feels compassion for human suffering no matter what color the skin of the sufferer may be,” she wrote … You, Governor Collins, are a true” Southern gentleman. May God keep you through the coming trials.”

Collins’s courtesy to anyone he met was legendary. Even so, the Williams letter was remarkable.

On the occasion she described, she and her parents were pleading for the life of her brother, Willie Horne Jr., who was condemned to die for rape. Collins commuted 10 of the 39 death sentences that came to him, but not Horne’s. The prisoner was executed in January 1959. However, Collins had given his family his personal attention and a full measure of compassionate respect.

At the time, though, Ms. Williams had asked a question that struck his heart: “Do you think that my brother is going to die because he is black?”

Collins assured her that it was only because of the brutality of the crime. The victim’s escort, a court said, had been beaten senseless with a tire iron.

But the governor’s conscience was troubled. He knew that had the victim been black or both parties white, the jury almost certainly would have recommended mercy. He tasked his staff to find reasons to repeal the death penalty, and when the Legislature convened a few months later he asked that it do so.

The House committee that killed the bill said that without the possibility of a death penalty, a resumption of lynchings “can certainly be anticipated.”

It was a rare if unwitting acknowledgment of the profound racism that accounts for the South’s peculiar and persistent obsession with the death penalty.

It clearly matters more to the politicians than to the voters. A Florida survey by Public Policy Polling last year found that only 35 percent of respondents favored execution over life without parole. The question was asked in the abstract however, without a politician waving some bloody shirt in the background.

Collins confronted the racism.

“By far the great majority of those to be executed were Negroes,” he said, “and yet only 17 percent of the state’s population were colored. It was a gross travesty on the principle of equal protection.”

Whites are now the majority on Florida’s death row, but blacks are still disproportionately represented. Florida has never executed a white for a crime against a black but one appeal is pending. As of last October, blacks were still the majorities on 12 other death rows, nine of them in the South.

Although the death penalty remains in force outside the South, it is in near disuse except in Florida and other former slave states. The South accounts for 1,180 of the 1,448 U.S. executions since the Supreme Court reinstated capital punishment 41 years ago, according to the Death Penalty Information Center in Washington. That’s 81 percent. Florida is fourth highest on the list with 92. Texas leads with a staggering 542. Outside the South, however, there haven’t been any since 2014, except for one in Oklahoma.

Race bias was evident in how Florida governors and the state pardon board commuted death sentences between 1924, when Florida first began to keep track of them, and 1964, when executions paused for 15 years.

In a paper published in 1993, Margaret Vandiver, a criminology professor at the University of Memphis, found that blacks condemned for crimes against whites in Florida were executed in 90 of 95 cases. On the other hand, whites whose victims were white received clemency in 22 of 83 cases. Blacks on death row whose victims were black were spared nearly half the time, in 27 of 61 cases. There were no death sentences, hence no commutations, for whites convicted of crimes against blacks.

The disparity was greatest in convictions for rape, which is no longer a capital crime. Of the 40 black men condemned for raping white women during the 40 years Vandiver reviewed, only two got clemency. One was Willie Irvin, of the “Groveland Four,” who had been framed by a racist sheriff. The Florida House of Representatives formally apologized to their families last week. Irvin had exhausted his appeals when Collins drew vehement criticism for commuting his sentence in 1955.

The point is that Collins did commute his sentence, doubting his guilt, and spared nine other men as well. No Florida governor has commuted a sentence since Bob Graham last did so in 1983. In another glaring departure, Florida governors apparently are no longer willing to face or hear from the families of condemned prisoners, as Collins did every time.

I have been trying with scant success to find out how Gov. Rick Scott considers clemency in comparison to how Collins did it. Among the questions I sent his press secretary, Lauren Schenone: Does he accept comments from lawyers for death row inmates? Does he consider each case himself or does he accept the decisions made by former governors whose death warrants were stayed in the courts? Does he consider the trial and appeal process to be essentially infallible?

Her answer was terse, said little, but was revealing in one important respect.

“Signing death warrants is one of the Governor’s most solemn duties. His foremost concerns are consideration for the families of the victims and the finality of judgments. (Emphasis supplied.)

“Our office follows procedures outlined in Rule 15 of the Rules for Executive Clemency on this process,” she said.

Rule 15 shrouds all the process in secrecy and says that the Commission on Offender Review “may” — not shall — conduct an investigation in each case. There is no data on how often it does so. The rule also provides that the Governor and Cabinet may schedule a public discussion, but that practice ceased during Jeb Bush’s term.

The words in italics, “finality of judgment,” suggest that Scott doesn’t care, as Collins did, that the courts might make mistakes with fatal consequences. His conscience is dead to that possibility. Once the legal case is over, that’s it.

That is a profound abdication of a governor’s most awesome moral responsibility.

___

Martin Dyckman is a retired associate editor of the Tampa Bay Times and author of “Floridian of His Century: The Courage of Gov. LeRoy Collins,” published by the University Press of Florida. He lives in Asheville, North Carolina.

Martin Dyckman: Florida’s overbearing ‘politics of death’

He would put it off as long as he could, aides said, and trembled when he finally had to sign a black-bordered death warrant. Despite his profound opposition to capital punishment, LeRoy Collins sent 29 men to their doom during his six years as Florida’s governor. He was in anguish each time.

To some people, that example casts a poor light on Aramis Ayala, the state attorney for Orange and Seminole counties, whose announced decision to seek no death sentences is the crux of an unprecedented battle in the Supreme Court with Gov. Rick Scott and, now, the Florida House of Representatives.

But it is Scott and five of his predecessors who come off worse in comparison with the totality of Collins’s record. The awesome power to commute death sentence has been a dead letter in their hands.

Collins, however, was unafraid to exercise that power, and he commuted 10 death sentences to life in prison, nearly one in every four that came to him.

No Florida governor has granted clemency to any death row inmate since Bob Graham last did so in 1983. The six sentences that Graham commuted comprise Florida’s entire total since the death penalty was restored in 1976. There have been 76 executions since then.

Meanwhile, 276 condemned men and women have been spared by executive action in 22 other states — including Alabama, Texas and Louisiana — and the federal government.

In Florida, however, what New York’s Gov. Mario Cuomo aptly called “the politics of death” are so overbearing that Gov. Lawton Chiles could not get the necessary majority of the Cabinet to agree with him to spare Danny Doyle, a mentally retarded murderer from Broward County. The outcome was a curious compromise: to postpone Doyle’s clemency hearing for 25 years. Doyle remains on death row. The unconventional reprieve expires this year.

The U.S. Supreme Court has since forbidden the execution of mentally retarded inmates but left it to the states to decide who is sufficiently retarded. Gov. Rick Scott, an avid advocate of the death penalty, could conceivably sign the death warrant that Chiles forestalled in 1992. On that occasion, Doyle’s fate was debated in a public meeting, but Gov. Jeb Bush put a stop to discussing death row cases in the sunshine. Bush, Charlie Crist and now Scott have never offered any reason for denying clemency other than to say they found no grounds to overturn the verdicts of the courts. That simply means they haven’t been looking hard enough.

Throughout history, kings, presidents and governors have been the courts of last resort for prisoners who have exhausted their legal appeals. However, they act or not, largely unbound by any rule of law and subject to no appeal. Clemency is regarded as an “act of grace” that requires no explanation for being granted or denied. Florida’s Administrative Procedure Act explicitly excludes it.

It is hard to understand or excuse why Florida’s most recent governors have refused to spare anyone. Perhaps they have believed that the judiciary is infallible. But it is not. Jurors make mistakes, prosecutors don’t have to explain why they seek death in some cases and not others, and killers can sell out their less culpable co-defendants to save their own skins.

The system is so rule-bound that an inmate can lose his life because an attorney did not make an objection or file an appeal at the right time.

In 1993, even as he voted with a unanimous court to allow the execution of Larry Joe Johnson, Florida Justice Gerald Kogan decried “the problems inherent in applying procedural bars to death cases.” Florida, he said, “will electrocute a man injured and most probably maimed psychologically while serving in his nation’s military in Vietnam and elsewhere. This will happen even though it is clear that, had this case been tried today, the procedures used in the trial court … would have been self-evidently defective … The record, in this case, leads me to the disturbing conclusion that the legal system has failed to give Larry Joe Johnson even one particle of credit for his honorable service to his country or for the injury and disability he suffered while in the armed forces of the United States.”

Kogan’s cry from the heart prompted Chiles to withdraw Johnson’s death warrant for more study, but he signed another one after an expert who had diagnosed post-traumatic stress disorder changed his opinion. Johnson died.

A governor who might fear political consequences from showing mercy should consider the courage Collins displayed in December 1955 when he and the Cabinet spared the life of Walter Lee Irvin, a black man who had been twice condemned for raping a white woman in Lake County. Collins was contemplating a campaign for re-election in a climate supercharged by the U.S. Supreme Court’s decision to ban racial segregation in the schools. The judge in the case and the sheriff, a notorious racist, did everything they could to hurt Collins politically, but he was re-elected.

“In all respects my conscience told me that this was a bad case, badly handled, badly tried, and now on this bad performance I was asked to take a man’s life. My conscience would not let me do it,” Collins said.

Subsequent investigations showed that Irvin and his three co-defendants, two of whom had already been shot dead, were most surely innocent, framed by the sheriff. It wasn’t even clear that a rape had taken place. Two legislators from South Florida are now trying to pass a resolution affirming the innocence of the “Groveland Four.”

Irvin, who lived long enough to be paroled, would have died in the electric chair but for a governor whose conscience defied the politics of death.

In a subsequent column, I’ll write more about Collins and about the remarkable litigation between Ayala and Scott.

___

Martin Dyckman is a retired associate editor of the Tampa Bay Times and the author of “Floridian of His Century: The Courage of Governor LeRoy Collins,” published by the University Press of Florida. He lives in Asheville, North Carolina.

Martin Dyckman: Who needs strong, independent courts? We do

It’s a paradox in America’s ongoing experiment with self-government that we depend on the weakest branch of government to defend us from the more powerful ones.

The Founders gave a lot of thought and ink to this. Writing in the Federalist, Alexander Hamilton pointed out that the judiciary would always be “least dangerous” to the public’s freedoms because it would be “least in a capacity to annoy or injure them.”

The courts have no police or troops of their own, no power to make laws but only to review them, no control over even their own budgets.

It would be their job, though, to protect against abuses of power by the president or the Congress.

When you see one of those branches going after the courts, like the hotheads in the Florida Legislature at the moment, consider whose ox they’re really trying to gore: yours.

Three pending acts reek of political revenge against the Supreme Court for its decisions to enforce the “Fair Districts” initiatives that voters approved, overwhelmingly, in 2010.

You voted to put a stop to political gerrymandering. You wanted to choose your legislators rather than have them choose you.

The Legislature largely ignored you, to put it politely, and tried to hide the evidence of its skullduggery by hiding behind such phony excuses as “legislative privilege” and “trade secrets.” All that took time, nearly three years in fact, but the court eventually, and rightly, ordered up new maps for the state Senate and the congressional districts.

Now look what’s happening:

— HJR 1, Speaker Richard Corcoran‘s top priority, would impose 12-year term limits on Supreme Court justices and judges of the district courts of appeal. Nearly everyone who doesn’t have a grudge against the courts thinks that’s a bad idea and unnecessary as well, The House passed this with one vote to spare. The Senate appears to be holding on to it as a bargaining chip.

— HB 301, also now in the Senate, nitpicks at the court by calling on it to submit annual reports detailing how many cases are awaiting decision and for how long. That’s a blatant invasion of the court’s constitutional power to make its own rules.

— S for SB 352, a transparent erosion of the “Fair Districts” initiatives, provides for challenged districts to go on the ballot if the cases are still pending in court by the campaign filing deadlines. In the event a map is found unconstitutional afterward, the remedial districts would not go on the ballot until the subsequent election.

In practical terms, it’s impossible to complete any complicated case in the few months between a legislative session and the filing deadlines. What if the politicians whose seats are at stake might again be the culprits behind prolonging the litigation? That would not matter.

This particular act of legislative arrogance also tries to tell the court how to conduct its hearings, although it couches this as encouragement rather than a command. And it cheekily maintains that none of this is meant to “supersede or impair” the Fair Districts amendments. There’s an “alternative fact” for you.

Lord Acton‘s famous maxim that “power tends to corrupt, and absolute power corrupts absolutely” is on almost daily display in Congress and the state legislatures. The perks and emoluments—doorkeepers, pages and messengers, reserved parking places, and, not least, the fawning lobbyists—are intoxicating. One can quickly forget to whom that House or Senate seat actually belongs.

Without the courts—the federal courts, in this instance—the people of Florida might still be the servants of a legislature so malapportioned that fewer than 15 percent of the people, residents of the smallest counties, could elect a majority in both houses.

It was that Legislature, in 1957, which had passed an “interposition” resolution declaring that U.S. Supreme Court desegregation decisions were null and void in Florida. But of course they were not null or void, and the same fate awaits the present legislation that attempts to tell the Florida Supreme Court how to do its business.

Some other incidents are worth recall.

In 1982, the Legislature put on the ballot a constitutional amendment purporting to require financial disclosure by former legislators and Cabinet members who intended to lobby. The title and summary neglected to mention that this would nullify an absolute two-year cooling-off period, directly subverting former Gov. Reubin Askew‘s ethics in government initiative of 1976.

Askew sued, and the Florida Supreme Court threw the deceptive amendment off the ballot. The Legislature did not like that.

In 2000, the court invalidated a constitutional amendment after it had been approved in an election because it had been misrepresented as preserving the death penalty when the intended result was actually to have more executions. Again, the Legislature was unhappy.

In 2010, it bounced two legislatively proposed amendments for misleading language: one dealing with health care, and another that could have weakened the pending “Fair Districts” initiatives.

As for term limits, the way they have dumbed down the Legislature since they took effect there in 2000 hardly makes a case for doing the same to the appellate courts.

Florida needs nothing less than to discourage lawyers in mid-career from devoting themselves to their profession’s highest calling.

It was four such young lawyers who redeemed the Supreme Court from a slough of ethical scandals in the 1970s. Of the four, Ben Overton was the only one who stayed longer than seven years. Arthur J. England and Alan C. Sundberg returned voluntarily to private practice. Joseph Hatchett was appointed to a federal appeals court. Among 22 justices who came and went after 1968, the typical tenure was approximately 10 years. Overton’s, at 24, was the longest.

Florida already requires judges to retire upon reaching 70 or soon after, and that is enough.

Remember who needs strong, independent courts. You do.

___

Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

Martin Dyckman: Before Donald Trump, there was Florida’s Claude Kirk

The home office pulled me out of a meeting at the Florida Capitol. Former Gov. Claude R. Kirk Jr., was on their line, insisting that I be told right now (!) how much he liked an antibusing provision that the Legislature was considering tacking on the budget. He liked it so much, he told the state editor, that he had signed an appropriations bill with the same rider although he would have preferred to veto the bill.

That didn’t sound right, so I checked the House Journal. Kirk had vetoed that bill. The editor was perplexed.

“The governor wouldn’t lie, would he?” he asked.

Like most people of his time, and still many today, the editor assumed that a high public official might very well stretch or shade the truth from time to time but would never stoop to a flat-out falsehood.

Yes, Kirk would, although he was known to hit the sauce in a way that could have clouded his memory.

Kirk didn’t lie with the almost hourly frequency of the Donald Trump White House, but the underlying cynical assumption was the same: The public would be more disposed to believe a governor than to believe his critics. They had believed his campaign promises and elected him, hadn’t they?

In 1967, his first year as Florida’s first Republican governor since Reconstruction, Kirk had proposed a budget in keeping with his primary campaign promise of “No new taxes.” It was seriously unbalanced, relied on accounting tricks and assumed that Florida voters would approve a bond issue, no sure thing.

When the Senate appropriations chairman, Reubin Askew, and other Democratic leaders tried to tell him that, Kirk was scornful. What mattered was not what they thought but what some ordinary citizen might think.

“‘Well, now, senator,'” Askew recalled Kirk saying, “‘you say it’s unbalanced. I say it isn’t. Who do you think that truck driver is going to believe, me or you?'”

Before there was Donald Trump, there was Claude Kirk.

It must be said that the man widely derided as Claudius Rex was a statesman compared to our so-called president. (In politics, everything is relative.) Among other things, Kirk did a better job of hiring good people for sensitive jobs and was strong for the environment, thanks to the influence of adviser Nathaniel P. Reed.

Like Trump, Kirk, the frontman for a successful Jacksonville-based insurance company, had never held any public office. Such inexperience always shows.

“He didn’t even know how many members there were in the legislature, he didn’t even know what Cabinet officers there were, he didn’t know anything about state government. And he didn’t bother to learn a whole hell of a lot about it while he was governor. He spent a lot of time enjoying being governor,” remarked Don Reed, the Republican leader in the House of Representatives at the time.

Kirk’s first budget exposed his ignorance as well as his irresponsibility. To call his bluff, the majority Democrats passed exactly what he had proposed. The Republicans, who knew that Kirk’s “budget” was no more than propaganda, tried unsuccessfully to block the bill. Kirk had to veto it.

Before a second year was out, the man who had vowed “No New Taxes!” signed what was then the largest tax increase in Florida history.

Like Trump, Kirk wasn’t shy about spending money for personal benefit. My colleague Don Pride, the St. Petersburg Times bureau chief, caught him charging a state agency, the Florida Development Commission — precursor to the present-day Enterprise Florida — some $1,600 for Kirk’s European honeymoon. Unlike Trump, Kirk reimbursed the public, blaming the charge on a clerical error.

But he never did repay the $90,000 that the same agency had paid to William Safire, a publicist who later became The New York Times’ resident conservative columnist, to promote Kirk for the vice-presidency in 1968.

Like Trump, Pride recalls, Kirk kept his financial affairs hidden. He relied on a secret slush fund to fund his travels and other personal expenses. When the Legislature cracked down on his “Governor’s Club,” he made the Republican Party pay for his leased private jets. Kirk thought nothing of flying to New Orleans just for lunch.

When Jack Eckerd, an opponent in the 1970 GOP primary, released five years of income tax returns and challenged Kirk to do the same, Kirk refused.

Like Trump, Kirk was a demagogue whenever there was a headline to be had. He staged a tense verbal confrontation at Jacksonville with the black activist H. Rap Brown. He suspended the entire Manatee County School board and its superintendent to keep them from complying with a federal-district court busing order. Kirk’s defiance evaporated when the judge fined him $10,000 a day.

And, like Trump, Kirk was frequently vexed with the press, “haranguing them at campaign stops and barring them from his airplane,” Pride recalls.

Unlike Trump, however, Kirk had a sense of humor and was engaging at times. But by 1970, the voters had seen through his antics and were keen to replace Kirk with a serious-minded, experienced legislator with a progressive platform and a reputation for speaking the truth. The worst that Kirk could say about him was that he was a “Momma’s boy.”

The new governor was Reubin Askew.

Let Florida’s past be the nation’s prologue.

___

Martin Dyckman is a retired associate editor of the Tampa Bay Times. He is the author of “Reubin Askew and the Golden Age of Florida Politics,” published by the University Press of Florida. He lives in Asheville, North Carolina.

Martin Dyckman: Genetic testing bill gives bosses power they shouldn’t have

Some perfectly objective news stories virtually write their own editorials. Here is the top of a recent one from the PBS NewsHour:

“A little-noticed bill moving through Congress would allow companies to require employees to undergo genetic testing or risk paying a penalty of thousands of dollars, and would let employers see that genetic and other health information.

“Giving employers such power is now prohibited by legislation including the 2008 privacy and nondiscrimination law known as GINA. The new bill gets around that landmark law by stating explicitly that GINA and other protections do not apply when genetic tests are part of a ‘workplace wellness’ program.”

That summary overstates, but only slightly. Employers already are entitled to other types of personal health information from workers who take part voluntarily in workplace wellness programs. And they’re allowed to discount health insurance premiums to those who do. This means, of course, higher premiums for those who don’t. In other words, there can be a penalty for saying no.

If this legislation (H.R. 1313) passes, workers could be compelled to undergo genetic testing, the results to be shared with their bosses, or pay that penalty for refusing. Whether it would amount to “thousands of dollars,” as the story said, is unclear.

This development is as sinister, if not more so, than anything George Orwell imagined on the part of the fictional dictator Big Brother.

Let’s not forget that government, from the White House to the courthouse, is usually the biggest employer around.

The House Committee on Education and Workforce approved the bill on a 22-17 party-line vote. Freshman Rep. Francis Rooney, R-Naples, was one of the 22.

I asked his press office why Rooney would support something like that. Spokesman Chris Berardi replied in an email that wellness programs “are a popular way to lower health insurance premiums for workers” and that 61 percent of all employers offer them.

They are “completely voluntary, and will remain that way under H.R. 1313,” he said. He claimed that opponents “have no evidence” to argue that non-participants pay more for health insurance.” Those who oppose 1313, he said, “are spreading false information in a desperate attempt to deny employees the choice to participate in a voluntary program that can reduce health insurance costs and encourage healthy lifestyle choices.”

That defense strikes me as weak if not disingenuous. At the least, it begs three questions, the largest of which is whether people who now participate “voluntarily” will still want to do so once employers have the power to snoop into their DNA.

Another question is whether 1313 opponents are trying to deny anything but the power of employers to go where they shouldn’t go.

The third is how much more money would be charged to people who refuse to participate in wellness programs that would make their DNA as accessible to their employers as their home addresses and telephone numbers.

Now, what is wrong in principle with opening that door to your benevolent employer? Especially when the DNA can tell only that you have a higher risk of some disease, not that you will actually develop it?

Here’s why. If I’m considering several employees for a long-term investment in expensive training that would make any of them essential to the company’s future, knowing that one is at higher risk of, say, breast or ovarian cancer might just make a difference.

Or if I need to trim my workforce, it would be useful to know which employees have a higher statistical risk of expensive diseases — or of bearing children with such costly genetic disorders as cystic fibrosis.

Genetic information can be enormously useful in preventive medicine. GINA, the 2008 law, allows for that. It provides for limited exceptions.

But the misuse to which such data could be put is illustrated by what the law flatly prohibits. It is an unlawful practice “to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee” because of genetic information, or “to limit, segregate or classify the employees … in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee …”

H.R. 1313 does not expressly repeal that. But once employers have access to potentially compromising DNA information, it would be easy to use it in the prohibited ways. Who would know?

In a typical Washington example of calling black white and wrong right, H.R. 1313 is named the “Preserving Employee Wellness Programs Act.”

According to NPR, 1313 caters to the wish list of the American Benefits Council, a lobby representing Fortune 500 companies and other large employers. Its present chairperson, Allison R. Klausner, represents large employers such as IBM, United Healthcare and AT&T.

In congressional testimony, it claimed that lack of genetic information puts wellness programs “at risk” and deprives employees of benefits like “improved health and productivity.”

That’s nonsense. The law already allows employees to share genetic information with health professionals and board-certified counselors.

The word “productivity” is the likely clue to what that this employer lobby actually cares about.

The more that people hear about H.R. 1313, the more they should hate it and the less likely it would pass on its own merits, or lack of them. The strategy, apparently, is to fold it into the overall Ryan-Trump health care scheme.

That would be yet another reason, not that any more are needed, to trash the whole atrocious mess.

___

Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.

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