« Latest FSR issue covers crack sentencing | Main | Debating discretion: time for oral argument in Gall and Kimbrough »

October 1, 2007

Was the ABA's Ohio death penalty report just a big capital waste?

Thanks to this post by Crime & Consequences, I see that the local AP has now documented in this article how and why the ABA's mega-report urging a moratorium in Ohio (discussed here) has so far had no impact on the state's death penalty debate.  Here are snippets from the article:

Death penalty opponents hoping a long-awaited study would bolster their efforts to end capital punishment saw the opportunity overshadowed by questions over the study's bias and much bigger news from the U.S. Supreme Court....

[T]he study found itself in trouble almost immediately over the makeup of the 10-person team of Ohio lawyers.  No members are current prosecutors.  Four are defense lawyers, a fifth is a lawyer and professor who works to free innocent people through DNA testing, and a sixth is a Democratic lawmaker, Rep. Shirley Smith of Cleveland, long opposed to the death penalty....

"All you have to do is look at the membership of this group and see where it's going to go," said John Murphy, executive director of the Ohio Prosecuting Attorneys Association.... Criticism of the report didn't just come from prosecutors.  Chief Justice Thomas Moyer of the Ohio Supreme Court, who has upheld his fair share of death sentences over the years, issued a brief statement promising to look at the results, while noting, "the Supreme Court of Ohio was not consulted in the preparation of this 500-page report."

October 1, 2007 at 08:52 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200e54f029c9b8834

Listed below are links to weblogs that reference Was the ABA's Ohio death penalty report just a big capital waste?:

Comments

Why should the Supreme Court or prosecutors be consulted? I have not read the report, but if there is a problem they are likely part of the problem.

Posted by: S.cotus | Oct 1, 2007 9:13:10 PM

This is the flip side of the Connecticut "sentencing reform" "panel" made up of about 90% prosecutors, 5% victim advocates, 3% judges, and 2% defense attorneys.

Posted by: Anon | Oct 1, 2007 11:06:52 PM

"Why should the Supreme Court or prosecutors be consulted?"

No reason at all, if your purpose is to further a predetermined anti-death-penalty agenda.

Posted by: Kent Scheidegger | Oct 1, 2007 11:33:19 PM


The Absolution Argument
America is known as the Land of Second Chances, but for many Ohioans with a criminal record, it's a land forgiveness forgot.

Ohio has the seventh-largest prison population in the country; an average of 77 prisoners are released each day. While some states forbid employers from asking applicants about prior convictions, Ohio permits bosses to reject workers because of their criminal histories alone.

Whether the politician and the pastor can mount an effective campaign to move lawmakers remains to be seen. Today, the future of House Bill 317 is in the powerful hands of the Ohio Prosecuting Attorneys Association, a lobbying group whose stiff opposition to the bill has stranded it in the House Judiciary Committee.

Posted by: George | Oct 1, 2007 11:39:53 PM

Ha! I knew it. Remember ALEC? The American Legislative Exchange Council.

From The Real Cost of Prisons:

ALEC orchestrating attack on second chance type bills

This is something to watch out for! ALEC is a/or the major creator and proponent of state-based legislation in the country.

"Hough, of the American Legislative Exchange Council, said he believes the Ohio bill is likely to meet some opposition in the Legislature, and he doubts that if it does pass other states will rush to draft similar legislation."

Posted by: George | Oct 1, 2007 11:56:04 PM

As someone in daily contact with the state legislative process, I'm confortable that the number of state legislators who actually read any background report more than about five pages long is very small, even on the relevant committee.

The point of a 500 page omnibus report is not to have policy makers read it. It is to provide solid factual support to much more abbreviated summaries elsewhere, without requiring intermediaries, such as lobbyists and legislative staff, to track down the supporting facts personally. It is the legislative equivalent of press release journalism.

Selecting which parts of a report are likely to have an impact, requires personal familiarity with the decision makers.

Posted by: ohwilleke | Oct 2, 2007 12:46:57 AM

This report highlights so-called geographic disparities. This is such a BS argument, it hardly merits response. Different electorates are going to elect prosecutors with different priorities, and hence, those prosecutors are going to make different choices with respect to the death penalty. There is no avoiding this, and the resulting "unfairness" is just TFB. That the ABA thinks that killers have enforceable rights to be treated equally across intra-state lines with respect to the decision to seek death gives away the game. The ABA does not want the death penalty or wants it in an extremely truncated form, and it is willing to advance a disingenuous argument to advance its goals. That taints the entire report. It is not worthy of being read.

Posted by: federalist | Oct 2, 2007 1:48:32 AM

This report highlights so-called geographic disparities. This is such a BS argument, it hardly merits response. Different electorates are going to elect prosecutors with different priorities, and hence, those prosecutors are going to make different choices with respect to the death penalty. There is no avoiding this, and the resulting "unfairness" is just TFB. That the ABA thinks that killers have enforceable rights to be treated equally across intra-state lines with respect to the decision to seek death gives away the game. The ABA does not want the death penalty or wants it in an extremely truncated form, and it is willing to advance a disingenuous argument to advance its goals. That taints the entire report. It is not worthy of being read.

Posted by: federalist | Oct 2, 2007 1:49:09 AM

Mr. Scheidegger, If the Ohio Supreme Court is really acting as a court (i.e. it has limited administrative duties and takes separation of powers seriously), it really has no business contributing to or getting information from such a report. It is there to hear cases that are put before it. Not to go about reading reports written by people that like or dislike state killing. (ohwilleke does have a point however -- this report is a source book for others to be used later.)

While Federalist considers every argument that he dislikes to be (i.e. that involve killing less people) to be “BS” I find it interesting that he claims that statewide disparities are not to be considered on the grounds on “mini-federalism.” Does anyone else figure that different towns or counties should kill more people. Perhaps it is true that certain parts of Ohio have a greater number of bad people that need to be killed. Certainly no part of Ohio has as high a number of bad people as Texas does.

The silly part is that since Federalist’s mind has already been made up and he wouldn’t read the report either he expects to make some kind of point by saying that the report is “tainted” and he won’t read it. I am, like, totally shocked.

Posted by: S.cotus | Oct 2, 2007 6:19:50 AM

The point is, S.cotus, is that if we give killers enforceable rights to some sort of "fairness" across intra-state jurisdictional lines, that will end the death penalty. That, coupled with the ABA's idea that killers should get to raise constitutional issues based on changes of law occurring after their sentences have become final, shows that the ABA is not just trying to make the death penalty better, but is rather trying to kill it. That's fine. But the report, like DPIC's innocence list, is not worth the paper it's printed on.

Posted by: federalist | Oct 2, 2007 11:39:37 AM

>>The point is, S.cotus, is that if we give killers enforceable rights to some sort of "fairness" across intra-state jurisdictional lines, that will end the death penalty.

A lot of bad decisions were made in writing the constitution. Personally, I don’t like the idea of unlicensed churches and blogs. There are too many people out there with dangerous ideas. But, if you want to change the constitution you must go through the normal procedures (i.e. amendment). As to what the words in the constitution mean, that is a matter for the courts, and the losing part will always scream “activism.”

Whether it will end the death penalty is anyone’s guess. There have been a lot of challenges to the death penalty in previous years, and states still management to kill people to appease the gods of vengeance and purify the proud race of Americans!

Personally, I don’t think requiring the same procedures within a state will per se end the death penalty, but will simply require states to pass laws requiring equal treatment. So, for example, a statute requiring that certain prosecutorial findings be made in a “death notice” would solve a lot of these equal protection problems. Sure, it might result in a few prosecutors thinking twice before seeking to kill a poor person, but overall you would get your way and the state could still kill a great deal of people, providing entertainment for the masses.

Since you have refused to read the ABA’s report (and proudly said that you refused to read it), your discussion of it might be problematic. Whatever the case, the retroactive effect of statutes and court rulings is an ever-present problem in American jurisprudence, and, quite frankly, is not that big a deal. Whatever the case, the ABA report is likely a sourcebook for other bits of advocacy and is not meant to actually sway in and of itself.

Posted by: S.cotus | Oct 2, 2007 11:49:26 AM

Since the Constitution permits the so-called "geographic disparity" complained about by the ABA, I don't see how I am proposing a change to the Constitution by rejecting out of hand this "geographic disparity" nonsense. Different prosecutors exercising prosecutoral discretion differently has never been found to be an equal protection problem. And how could it? As a practical matter, you simply cannot have all rapists claiming that because one rapist got a better deal or that one DA's rape policy is overly harsh--else the system grinds to a halt.

Posted by: federalist | Oct 2, 2007 12:13:07 PM

Whether the 14th amendment permits intra-state geographic disparities is not clear. You say it is, but you did not present any Supreme Court authority on the issue.

Some courts have held that similar-situated (yet far apart) defendants are entitled to similar treatment. The Supreme Court has not ruled on this. Moreover, state “little equal protection” clauses could be read to require similar exercises of prosecutorial discretion.

As a practical matter, there need not be precisely the same treatment accorded rapists, but most people argue for only “approximately” equal treatment, anyway.

Posted by: S.cotus | Oct 2, 2007 12:42:53 PM

Given, S.cotus, that the steady state is that each prosecutor gets to make his or her choice with respect to capital punishment or any other punishment (so long as it fits within the state statutory scheme), I'd say the burden is on you to cite authority here. I am aware of some caselaw suggesting that state requirements of "proportionality" (which is a related concept) cannot be argued in federal habeas.

There is litigation on this point--in places like Connecticut. Nothing definitive has come out.

Posted by: federalist | Oct 2, 2007 1:26:45 PM

Given, S.cotus, that the steady state is that each prosecutor gets to make his or her choice with respect to capital punishment or any other punishment (so long as it fits within the state statutory scheme), I'd say the burden is on you to cite authority here. I am aware of some caselaw suggesting that state requirements of "proportionality" (which is a related concept) cannot be argued in federal habeas.

There is litigation on this point--in places like Connecticut. Nothing definitive has come out.

Posted by: federalist | Oct 2, 2007 1:27:42 PM

>>>There is litigation on this point--in places like Connecticut. Nothing definitive has come out.

That is simply my point. You asserted that not only is there no such right to intra-state geographic equality, but the issue was resolved. In practice, there is a lot of intra-state disparity. However, most of it won’t get too much attention in academic settings (or even from courts of appeal), because different jurisdictions have widely different ways of treating the same misdemeanor.

The forum that the issue is raised in is irrelevant, since a state court would need to address any 14th amendment claims, anyway.

Posted by: S.cotus | Oct 2, 2007 1:55:00 PM

S.cotus, no significant court has held that the 14th Amendment supports this intra-state fairness argument (other than weak claims based on Bush v. Gore). And what authority there is, is against it--e.g., the habeas cases about "proportionality".

There are some state claims, obviously.

But back to the point--it's impossible to have a functional death penalty and a requirement for fairness across jurisdictions within a state. Of course, we could always simply ask the question: "Why is one criminal generally entitled to lenience given to another when both are treated under the wide leeway provided by statute?" (Obviously, you could come up with some factual scenarios where there would be some claim. And I am aware of sentencing law that gives co-defendants a break.) The response to my question of "It's not fair" is the whine of a five year old, not a serious argument.

Posted by: federalist | Oct 2, 2007 2:27:59 PM

First of all, “it is not fair” can usually be couched in constitutional terms. Whether a court buys this or not is another question. So, for example, in a fairly racist jurisdiction like Houston had a history of “unfairly” targeting black people and excluding them from the jury, it took awhile, but eventually that kind of “unfairness” reached constitutional dimensions, without even proving that the trial (apart from jury selection) was defective.

My guess is that if certain prosecutors had a policy of seeking the death penalty when certain factors were present (i.e. rape), and certain ones did not (i.e. they would seek it in all murders), one might be able to mount a 14th amendment challenge. (There might be an 8th amendment argument in there as well, but that isn’t the issue.)

Sure, one can “whine” that a lot of things in the law are not fair. But, there actually are some things which are constitutionally unfair.

Posted by: S.cotus | Oct 2, 2007 2:36:57 PM

The important point is that Ohio Prosecuting Attorneys Association is a partisan lobbying group complaining about the ABA being partisan. Until the ABA "outs" ALEC and Co. big time they will get nowhere because they will be fighting a ghost and will look dumb taking wild swings at the air. The voters would likely be very interested in ALEC and how it operates and who finances it. Take them head-on, ABA. The climate is right.

Posted by: George | Oct 3, 2007 1:25:25 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB