- Associated Press - Wednesday, May 11, 2016

Recent editorials from Florida newspapers:


May 10

The Miami Herald on Florida’s death penalty:

In a gutsy - and eloquent - decision this week, Miami-Dade Circuit Judge Milton Hirsch declared Florida’s new death penalty law unconstitutional. He became the first judge in the state to do so after the Legislature was forced to overhaul the state’s capital punishment system in March in response to a U.S. Supreme Court decision tossing out the old law.

Problem is, the Legislature came up short.

As a rule, we don’t like to say “We told you so.” But, in this case, we did. It was plainly evident in a reading of Hurst v. Florida that the Supreme Court believed that a unanimous verdict is required when imposing the death penalty. Even so, the Legislature failed to adhere to this principle in crafting a revised version.

In Hurst v. Florida, the court found in January that Florida’s old law violated the Sixth Amendment because judges, not juries, were tasked with making the final decision imposing the death penalty. In an 8-1 ruling, the court said juries must have the final word.

Although it did not explicitly require unanimity, it strongly hinted in that direction. That’s how almost all states deal with the issue, and that’s the safest way to construct a fair and viable death penalty law that can survive a challenge in the courts.

But instead, the Legislature came up with a revision requiring only a 10-2 verdict to impose the death penalty. In terms of ultimately passing constitutional muster, this is tempting fate. The less-than-unanimous requirement may well fail when it comes under federal review.

What impresses about Judge Hirsch’s decision, however, is that it does not rely on the federal requirement, but rather on Florida constitutional law and common law - which is to say, common sense.

In an 18-page decision that cites everyone from Churchill to Blackstone, Judge Hirsch called the principle of unanimity a cornerstone of Anglo-American jurisprudence. The public can support a verdict based on the notion that the jury has spoken - but not in those “as to which the most that can be said is that some jurors have spoken.”

It is not a question of arithmetic, the judge said, but a question of constitutional law and justice. A jury, he pointed out, is the collective conscience of the community. “The verdict is the jury’s pronouncement - not 12 separate pronouncements, but one collective pronouncement.”

It makes no sense, as was repeatedly pointed out during the legislative debate in Tallahassee, that there must be unanimity upon conviction, but not in imposing a death penalty. Or, as Judge Hirsch put it succinctly:

“We will take no Floridian’s liberty upon a less-than-unanimous verdict, although the liberty taken today can be restored tomorrow. We dare take no Floridian’s life upon a less-than-unanimous verdict. The life taken today can never be restored.”

That is particularly true in Florida, which claims the dubious record of 23 death penalty exonerations, more than any other state in the union. If this state’s process in death penalty cases is so clearly flawed, if it has made so many horrible mistakes, why then would legislators make it easier to impose the ultimate punishment by omitting the requirement that everyone on the jury must agree? What’s the point of making it easier? Who benefits and who loses?

The failure to require unanimity has guaranteed that Florida’s death penalty will be the target of appeals and litigation for years to come. The sooner the Legislature can correct its mistake and conform to the judicial principle of unanimity, the better off the state’s criminal justice system will be.




May 3

The Orlando Sentinel on manatee protections:

Many Floridians love manatees. Maybe it’s because the slow-moving giants are gentle reminders of the state’s natural wonders. And maybe it’s because we recognize that as the manatee’s survival goes, so goes coastal Florida.

For proof, look no farther than the Brevard County’s Indian River Lagoon, a popular manatee thoroughfare. A toxic algae outbreak there in March was so severe it killed thousands of fish, creating a smelly environmental disaster. Past blooms of algae - fueled by fertilizer runoff and septic tank leaks - have led to a collapse of the food chain, killing manatees and other marine life.

Yet the U.S. Fish and Wildlife Service, yielding to pressure from property-rights groups, has proposed reducing the level of protection manatees now get from the federal government. The bureaucratic process is known as “downlisting” the manatee from “endangered” to “threatened.” It may not sound like a big step, but it is.

The federal government considers a species endangered when it is in imminent risk of extinction. Then federal agencies work with state and local governments to put protective measures in place. For manatees, that includes creating marked sanctuaries on the Atlantic and Gulf coasts and setting speed limits for boats in waters where manatees congregate.

Such efforts have helped manatee populations recover, according to the U.S. Fish and Wildlife Service. It estimated that 6,350 manatees reside along the coastal Southeastern states, a count that led the agency to conclude there is “a very low percentage chance of this animal going extinct in the next 100 years.” But advocates for manatee protection offer good reasons to question that optimistic forecast.

First, the numbers are misleading. They are hard to verify and don’t take into account growing threats. Even with federal protections, manatees are being killed in large numbers, much of it attributable to human action or inaction. An average of 472 manatee deaths have been recorded each year for the past decade. So far this year, more than 200 manatees have been added to the mortality toll. Among the major causes of premature death are collisions with boats, water pollution and cold stress.

In the winter, manatees need warm water to survive, and they seek it in Florida’s natural springs and outflow canals at power plants. Yet our springs are increasingly polluted and overcrowded, and outdated power plants on coastal waters are being shut down. The loss of just one plant would put hundreds of manatees at risk.

Groups that favor the downlisting say protections will remain in place even if the manatee is moved into the “threatened” category. Maybe so, but there is growing evidence that politicians motivated by boating or development interests or political ideology that bristles at regulation are eager to weaken manatee protections.

Just the possibility of change emboldened the Brevard County Commission to consider removal of some boat speed restrictions in the county’s intracoastal waterways favored by manatees. It is an ill-considered move. Even with speed limits in place, boats killed 10 manatees in Brevard waters last year. Manatee advocates fear such actions will be repeated statewide if the manatee is downlisted.

It makes no sense for the federal government to rule that manatees are no longer endangered when evidence points to their likely decline without our best efforts to protect them. Given the unrelenting pressure to develop coastal Florida, the next time manatees face extinction it could be too late to save them. And extinction is forever.




May 6

The Bradenton Herald on flood insurance reform:

With hurricane season bearing down on Florida, significant flood insurance reform appeared on the horizon with congressional passage of a bill creating an open market for private insurers and options for consumers. Florida drove down a similar road last year by adopting a new law that provides consumers the opportunity to purchase flexible flood insurance on the private market.

The U.S. House bill, passed unanimously in a 419-0 vote last week, contains a pivotal provision eliminating a once daunting obstacle to private flood insurance policies. The legislation ensures those contracts fulfill the federal requirement for flood coverage of high-risk properties that carry federally supported mortgages - a regulatory roadblock to private market competition.

The Flood Insurance Parity and Modernization Act declares private policies are equal to NFIP insurance in satisfying mandatory policy purchases. Lenders could accept private insurance that satisfy National Flood Insurance Program coverage requirements.

The bill would end the federal government’s virtual monopoly on writing policies under NFIP.

By introducing competition in the flood insurance marketplace and removing the federal ban on locally specific alternatives and solutions, homeowners can customize policies and reduce costs. One such consumer option is the ability to purchase private flood insurance that covers only the remaining principal on the mortgage and not the loan’s full value.

The new bill moves on to the Senate for what should be easy passage given the support of Republicans, Democrats, environmental organizations, insurance lobbyists, real estate interests and taxpayer associations.

The two Florida congressmen who sponsored HR 2901, Democrat Patrick Murphy and Republican Dennis Ross, introduced the measure in June 2015. Longboat Key Republican Vern Buchanan joined this rare bipartisan effort.

More than 5 million American rely on NFIP policies, which have covered flood damage from storms, hurricanes and other events since 1968. Some 1.8 million of those policies cover Florida properties.

The Sunshine State’s coastal properties are increasingly vulnerable to flooding from the rising seas caused by climate change. The Miami Herald reported last year that coastal property worth $69 billion will be at risk of flooding at high tide by 2030, or perhaps sooner. A private marketplace would be able to write policies tailor-made to local conditions.

The House legislation quickly gained traction this year in the wake of disastrous December flooding throughout the Southwest and Midwest. Political motivations aside, this judicious measure should introduce price competition and save property owners on premiums.

The NFIP’s subsidized, below-market policies, which undercut the market and impeded competition, were a major target of the Biggert-Waters Flood Insurance Reform Act of 2012. Biggert-Waters slashed subsidies on many high-risk policies, threatening some property owners with unaffordable premiums, but Congress relented due to public pressure and delayed the increases for four years under 2014 legislation that became law.

Biggert-Waters was also intended to expand the private flood insurance market across the country, but some lenders interpreted the law to mean those policies had to be authorized by banking regulators. At least one Florida insurer encountered banks that insisted on NFIP coverage while others were successful in persuading lenders to accept their policies. The Flood Insurance Parity and Modernization Act removes any doubt about that issue.

Coastal communities such as Manatee County were the biggest losers under Biggert-Waters. The new legislation empowers property owners. A private, competitive marketplace best serves their interests.

The modernization act legislation awaits action by the slow-moving Senate, where the bill has languished since its introduction last June. Senators should act soon on this consumer- and market-friendly bipartisan bill.



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