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June 16, 2013

Notable comments and recommendations emerging from Ohio Death Penalty Task Force

OhioAs I have mentioned before, I have generally been disinclined to blog about my on-going work as a member of the Joint Task Force to Review the Administration of Ohio’s Death Penalty (background here).  But there was some notable developments at this past week's public meeting of the Task Force which I thought would be of broad interest to readers of this blog.  This report from the Cleveland Plain Dealer, headlined "Task force urges state panel be created to evaluate death penalty prosecutions," provides the highlights:

A state task force is recommending that Ohio create a panel under the state attorney general that would review potential death penalty cases before prosecutors could take them to trial.

Under current Ohio law, the power to decide when to pursue the death penalty rests in the hands of individual county prosecutors.  But the recommendation by the Joint Task Force to Review the Administration of Ohio's Death Penalty would give the new panel authority to disapprove death penalty charges.

The recommendation is an attempt to address disparities in death penalty prosecutions in Ohio, said Ohio Public Defender Timothy Young, who chaired a subcommittee that drafted the recommendation.  “The two biggest disparities my group has dealt with are race issues and geographic issues,” Young said.  In the case of race issues, they revolve around the race of the victim.  “I think it’s vitally important that we do something about disparity and the death penalty,” Young said. “The numbers are overwhelming.”

Once a prosecutor made a decision, the panel -- made up of staff from the attorney general’s office and former county prosecutors appointed by the governor -- would review that decision.  It would look at the circumstances of the case, giving particular consideration to the races of those charged and the victims, said Jo Ellen Cline, government relations counsel to the Ohio Supreme Court and the court’s liaison to the joint task force.  “It would be a significant change in how things operate now,” Cline said.

The task force’s recommendation has a long way to go before it could become reality. It likely will be late in the year before the task force finishes its work, and some recommendations, including this one, would require legislative action to change state law. Given that, not all of the details on how the panel would work, or if a prosecutor would have some recourse if opposed to the panel’s decision, are not nailed down. That specificity would likely come from the General Assembly, Cline said.

Chief Justice Maureen O’Connor, with the Ohio State Bar Association, established the joint task force in 2011. It is charged with determining if capital punishment in Ohio is administered fairly and judiciously and to examine if adjustments are needed....

Far and away the majority of Ohio’s capital cases come from urban areas, Young said. And while they should naturally see more, simply because of population, their numbers are also greater per capita. “We have more than 40 counties that have never brought a death penalty case,” Young said.

There are a myriad of possibilities for why that is the case. The goal of the recommendation is to find more of a common standard, Young said. “Right now you have 88 prosecutors, all well intentioned,” Young said. “Our thought process was that if it went through a central committee that would even out those 88 applications.” Young said there was was significant debate on the recommendation, which was approved by a vote of 8 to 6.

Much of the debate dealt with the impact it would have on what now is a matter of prosecutorial discretion. And Young said he would not be surprised if those opposed to the recommendation write a dissenting opinion for the final report. Cline agreed. “They’re concerned that the prosecutors were elected by the folks in their jurisdictions to make these decisions,” she said.

Other developments in this week's meeting also made news as revealed by this Columbus Dispatch article headlined "Former Justice Stratton says she’s now opposed to death penalty." It starts this way:

In nearly three terms on the Ohio Supreme Court, former Justice Evelyn Lundberg Stratton sided with the majority most of the time when convicted murderers were put to death. From 1996 through the end of last year, spanning the time Stratton was a justice on the court, Ohio executed 49 men by lethal injection.

But nearly six months after leaving the court, the Republican, now an attorney in private practice in Columbus, has changed her views. Stratton yesterday told members of an Ohio Supreme Court task force reviewing administration of the death penalty that she didn’t have a strong feeling about capital punishment while serving on the court.

“I have evolved to where I don’t think the death penalty is effective,” she said in an interview. “I don’t have a moral inhibition ... Overall, it’s just not the best way to deal with it on a number of different levels.”

Stratton said she has long opposed executions involving mentally ill defendants, but she now opposes capital punishment in general because she doesn’t see it as a deterrent and victims’ families don’t gain the finality they seek when the murderer is put to death.

June 16, 2013 at 11:41 AM | Permalink

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Comments

"[T]he recommendation . . . would give the new panel authority to disapprove death penalty charges." I assume this means that, unlike the federal model, the panel would not be authorized to require local prosecutors to seek the death penalty over their opposition. Wouldn't that power be necessary in order to reduce disparities more fully? Otherwise, you've got the anti-death prosecutors basically calling the shots for the State and the pro-death prosecutors have to follow along.

Posted by: Michael J.Z. Mannheimer | Jun 16, 2013 12:07:15 PM

I agree fully with Prof. Mannheimer. The panel is fine in principle, but should have the power to recommend both for and against seeking the DP.

The major problem with race-of-the-victim disparity is that the DP is not sought frequently enough when the victim is black, not that it's sought too often when the victim is white. The present prosecutorial devaluation of black victims should be remedied by urging prosecutors to seek the DP in more cases with black victims, not to forgo it in cases where it is now justifiably being sought.

In other words, the answer is more justice for blacks, not less for whites.

Posted by: Bill Otis | Jun 16, 2013 3:03:08 PM

Twice as many Americans believe the death penalty is not imposed often enough as too often. (Gallup, 2010-2011)

"…[I]f there is a [bias] it should be corrected to make sure more cold-blooded murders die, not less."
~~(mytemp001) Charlotte Observer

Posted by: Adamakis | Jun 16, 2013 5:55:38 PM

//"Ohio Public Defender Timothy Young, who chaired a subcommittee that drafted the recommendation. “The two biggest disparities my group has dealt with are race issues and geographic issues,” Young said. In the case of race issues, they revolve around the race of the * victim *."\\

Would that this fact were shouted from the rooftops! Race-baiters, as well as the ignorant, e.g. Ron Paul, perpetuate the falsehood that blacks are disproportionately prosecuted.

Posted by: Adamakis | Jun 16, 2013 6:07:21 PM

How dumb is this task force? I mean really---did the task force spend any time whatsoever asking why there is a disparity?

I have some questions---what's the percentage of "good" victims where whites are the victims and what's the percentage of "good" victims where African-Americans are the victims? Obviously, where the victim is involved in criminal activity, there may be non-racially based reasons not to pursue the death penalty. If that differs across races, there you have one reason.

Also, what of the per murder resources available in counties where minority victims predominate? How does that impact the disparity?

And then there's the fact that African-American victims are concentrated where Democrats run things---Democrats are less likely to support death sentences. Hence elected officials in those counties are going to be less likely to seek death.

Did the task force look at any of those issues? My guess is no--but then they're proposing some nonsense that will put a quota on seeking justice for white victims. Bravo.

Posted by: federalist | Jun 16, 2013 8:10:25 PM

And my guess is that Doug and co. didn't think of Prof. Mannheimer's comment--obvious though it is.

Posted by: federalist | Jun 16, 2013 8:11:41 PM


“Right now you have 88 prosecutors, all well intentioned,” Young said.

Tim was wise to label all 88 as well intentioned.

The curve of distribution applies to that set of 88.

At the left side is the small % of the worst of the worst ; at the right is the small % of the best of the best .

When a prosecutor trashes the letter & spirit of Brady v. MD , then , IMLO , it is elimination time of that prosecutor .

Justice Stratton (Retired) is correct when she opines that the death penalty is not a deterrent .

I kindly refrained from killing a rogue judge who was a tyrant* , who deserved to die (in my biased opinion) , for the simple reason that it was morally wrong . Ironically he died a few weeks after my opportunity and means .

* As defined in dictum in an 8-0 decision authored by Justice Black in Chambers, et al. v. Florida (2/12/1940).

Docile Jim Brady , Columbus OH 43209
Nemo Me Impune Lacessit

Posted by: Just Plain Jim | Jun 17, 2013 6:39:45 AM

In other words, the answer is more justice for blacks, not less for whites.

Posted by: Bill Otis | Jun 16, 2013 3:03:08 PM

I am not a death penalty fan* , but agree with the above proposal.

* I prefer that the predator be stopped , by death if necessary , BEFORE the intended victim is harmed.
Dead pilots can not bomb Pearl Harbor.

Posted by: Just Plain Jim | Jun 17, 2013 6:45:33 AM

I have attended as many of the task force meetings as possible.

I believe that were federalist to have attended most of the meetings , that his opinion of the work performed would be more balanced.

Posted by: Just Plain Jim | Jun 17, 2013 6:54:26 AM

Former Ohio Supreme Court Justice Stratton:
|| and victims’ families don’t gain the finality they seek when the murderer is put to death.||

:-: But they get more finality from a lesser sentence? . . . wha . . wha . wha

Don't judicial interventions and lawyerly shenanigans mitigate against finality?
Why not advocate speedy executions [limited appeals, timetables]?

|| “I have evolved to where I don’t think the death penalty is effective,” .. [she] long opposed executions
involving mentally ill defendants, but she now opposes capital punishment [for anyone]. ||

:-: Do you mean devolved to the state in which we automatically & uncritically shower mercy upon the murder,
invalidate the will of the people, and save the ultimate punishment for no one?

Posted by: Adamakis | Jun 17, 2013 9:52:32 AM

Doug:

Can you direct me to the evidence which might indicate that there is racial disparity, by race of the victim, in Ohio?

I believe the ABA was the group that found the alleged disparity, which was that on death row, white victim cases were four times the number of black victim cases in Ohio. Yes?

Was that what Young was depending on?

But, that is no disparity.

Nationally, were are looking at crime statistics that show that, depending upon various death penalty aggravators and crimes that we would expect to find ratios of from 4:1 - 8:1 of white victims vs black victims n death penalty cases.

Posted by: Dudley Sharp | Jun 17, 2013 3:45:06 PM

Judge Stratton's reasons for now opposing the death penalty are a bit odd.

No sanction need be a deterrent to accept it as a representation in justice, which is the primary foundation of support for all sanctions.

But, all sanctions deter some.

Does Judge Statton know of any family that claimed the death penalty was supposed to bring them finality? Well, know, she doesn't.

It may provide peace and or justice and it does provide the finality of the murderers life, as well as the final act of the legal process.

Does Judge Stratton oppose executions for the mildest of mental illnesses, which may offer no mitgation for committing a capital murder?

Of course not.

She, as all, understand that mental illness may be either an aggravator and/or a mitigator, depending upon the type of mental illness and the level of its effect, just as it may offer no mitigation and/or no aggravators, based upon those same evaluations.

If she is saying that the presence of any mental illness, no matter the type or intensity, should always mitigate against the death penalty, then she has no credibility.

Posted by: Dudley Sharp | Jun 17, 2013 3:57:25 PM

The majority of murderers have an established validated mental illness, antisocial personality disorder and/or addiction. About a tenth have paranoid schizophrenia. One may also establish a trait across diagnoses that links them, impulsivity, whether innate or induced by intoxication.

The death penalty is not a punishment, because it ends all behavior, not just unwanted behavior. If used for general deterrence, it is a violation of Fifth Amendment due process. One may not "punish" a person to intimidate a speculative, future criminal, totally unknown to the defendant. So any mention of messages to others should result in an immediate motion for a mistrial.

The death penalty should be in a mandatory guideline, to remove the lottery aspect. It is to incapacitate, and to get rid of someone so toxic, they cannot stay with us anymore, as in 123D.

There will be more black people executed because black people kill 5000 more black people than expected by their fraction of the population. At 10%, there should be 2000 black murder victims. There are 7000. It took the KKK 100 years to lynch 5000 black people. We do that each year, the racist feminist lawyer being 100 times more effective than the KKK at killing black males.

Any panel should establish a quota of death penalty prosecutions for black victims to redress the disparity.

The innocence rate is not a justification to pause the death penalty, unless a car crash justifies the pause of all transportation until it can be eliminated, and perfected.

Posted by: Supremacy Claus | Jun 18, 2013 4:16:45 AM

Panel to urban prosecutors.

If you want the death penalty for the murderer of a white victim, bring us two death penalty proposals for murderers of black victims, until disparity ends.

Posted by: Supremacy Claus | Jun 18, 2013 4:20:58 AM

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