Sentencing Class @ OSU Moritz College of Law

Terry Nichols and a few other modern mass murderers who escaped death sentences

Sorry to have played an (evil?) game of guess the murderer at the end of class yesterday, but I think the story of Terry Nichols encounters with both the federal and Oklahoma capital punishment system provides a useful reminder that some (many?) high-profile US mass murderers can escape a death sentence in various ways.  Via his Wikipedia entry, here are the basics of Terry Nichols' crime and how he managed avoid a death sentence:

In 1994 and 1995, [Terry Nichols] conspired with [Tim] McVeigh in the planning and preparation of the Oklahoma City bombing -- the truck bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma on April 19, 1995 which claimed the lives of 168 people including 19 children.

After a federal trial in 1997, Nichols was convicted of conspiracy to use a weapon of mass destruction and eight counts of involuntary manslaughter for killing federal law enforcement personnel.  He was sentenced to life imprisonment without the possibility of parole because the jury deadlocked on the death penalty.  He was also tried in Oklahoma on state charges of murder in connection with the bombing, and was convicted in 2004 of 161 counts of first degree murder, which included one count of fetal homicide, first degree arson, and conspiracy.  As in the federal trial, the state jury deadlocked on imposing the death penalty.  He was sentenced to 161 consecutive life terms without the possibility of parole, and is incarcerated in ADX Florence, a super maximum security prison in Florence, Colorado. He shares a cellblock that is commonly referred to as "Bombers Row" with Ramzi Yousef and Ted Kaczynski.

As I mentioned in class, Jeffrey Dahmer (who killed at least 17 people in Wisconsin) and Dennis Raeder(the BTK Killer, who killed at least 10 people in Kansas) and Joel Rifkin (who kiled at least 17 people in New York) and David Berkowitz (the Son of Sam, who killed at least 6 people in New York) are just some examples of some infamous modern serial killers who escaped a death sentence because they committed mass murder in states without the death penalty at the time of their crimes.

In addition, some other modern mass murderers like Gary Ridgway (the Green River Killer who killed at least 49 people in Washington) and Charles Cullen (who killed at least 29 people in New Jersey and Pennsylvania) and Ronald Dominique (who killed at least 23 people in Louisiana) are just some examples of some infamous modern serial killers who escaped a death sentence because, after committig mass murder, they were able to cut plea deals with state prosecutors in order to take the death penalty off the table.

Does this kind of information make you more sympathetic (or less sympathetic) to claims of unconstitutional or just unfair sentencing disparity often made on behalf of folks who are sentenced to death in many states for only one murder (like Warren McClesky and Troy Davis)?

In light of this information, might you support a new federal death penalty law that defined the murder of,say, five or more people over an extended period of time to be a form of terrorism and thereby readily subjecting all of these sorts of serial killers to possible federal capital prosecution if/when state authorities are unable or unwilling to seek a death sentence for a mass murderer? 

On the current state (and possible future) of Ohio's modern capital punishment experiences

One (of many) interesting and valuable components of Ohio's modern death penalty system is the fact that the Ohio General Assembly has, by statute, required the Ohio Attorney General to produce an annual report on capital punishment regarding individuals who have been sentenced to death since Oct. 19, 1981.  The last four such annual reports are all available on-line via this webpage, and I highly encourage students to at least review quickly the most recent of these reports report (which is the 2010 Capital Crimes Report released in April 2011 available at this link).

The latest annual report will not only help you figure out how Ted Kaczynski might fare under Ohio's laws (see pp. 4-7 in the 2010 report), but also highlights the many fora for review of Ohio death sentences (see pp. 8-12 in the 2010 report, where the chart reprinted here appears at the end).  The 2010 report also has an extended discussion of DNA testing procedures and results for those sentenced to death at pp. 15-22.  The report also provides this (now slightly dated) statistics about the application of the modern Ohio death penalty:

Since 1981, Ohio has issued a total of 310 death sentences....

As of [the end of 2010], a total of 41 inmates have been executed under Ohio’s current law....

[And] a total of 14 inmates received a commutation of his death sentence to a sentence less than the death penalty....

[And] a total of 20 inmates died prior to imposition of the death penalty. This includes inmates who died of natural death and suicide....

[And] a total of 8 inmates were found ineligible for the death penalty dueto mental retardation (aka “Atkins” claims)....

[And] a total of 7 death sentences were vacated and remanded to trial courts for re-sentencing, which could result in imposition of the death penalty again ... [and] there was 1 case pending retrial....

[And] 64 death sentences were removed as a result of some form of judicial action beyond the cases already mentioned....

[And] a total of 155 death sentences remained active, including those currently pending in state and federal court [including] seven individuals [who] received a death sentence and were added to death row [in 2010].

As was true following my prior national data dump on executions in this post, I welcome and encourage comments on what lessons we might take away from this Ohio modern death penalty data and history.  Also, I encourage early thoughts about whether these data should suggest a particular agenda for the Ohio Chief Justice's newly form Joint Task Force to Review the Administration of Ohio’s Death Penalty (discussed in this press release and constuting a partnership between the Supreme Court of Ohio and the Ohio State Bar Association “to ensure that Ohio’s death penalty is administered in the most fair, efficient, and judicious manner possible.”)

Statistical highlights (and queries) concerning US death penalty history

Though I spent probably too much class time Thursday referencing parts of the history of the death penalty in the United States, I do not think it is possible for students of modern sentencing law and policy to spend too much time reflecting on this history.  I encourage all students to read up on the United States' history with the death penalty from various sources, such as the full opinions in Furman or the abolitionist-oriented account provided here by the Death Penalty Information Center or this reader-friendly review of DP history in the US .

One key historical point I sought to stress in class is that, though the US Supreme Court has been very involved in death penalty regulation through interpretations of constitutional law over the past forty years, during the prior 180 years the  Supreme Court had relatively little to say on the topic.  But this reality of Supreme Court relative lac of involvement in this historical story certainly was not a result of a relative lack of use of the punishment, because according to the ESPY File of all US executions, in the United States there were:

• 13 executions in 1790, the year after the US Constitution was ratified
• 8 executions in 1804, the year after Marbury v. Madison was decided
• 39 executions in 1869 the year after the 14th Amendment was adopted
• more than 100 executions in 1906, the year after the famous "activist" Lochner decision
• more than 1500 executions during the 1930s (roughly 3 each and every week)

Notably, when the US Supreme Court during the Warren Court years started getting much more actively involved in regulating state police and prosecution practices, lower state and federal courts did start more actively reviewing state death sentences.  As a result, from 1967 to 1976, the period leading up to and around the McGautha and Furman and Gregg rulings, there were zero executions in the United States.

The Gregg ruling in 1976 is often used to mark and define the start of the "modern" death penalty era in the United States, and the chart from the DPIC reprinted above (and easier to read at this link) details that the US has been averaging more than 50 executions per year over the last two decades, with a recent one-year high of 98 executions in 1999 and a recent one-year low of 37 in 2008.  

Lots of legal and non-legal factors have had an impact on these historical data, and one would struggle to come up with any simple explanation for precisely why our nation has had a roller-coaster, up-and-down experience with executions.  Nevertheless, in addition to being factually interesting, I think there are various sentencing law and policy lessons to be taken away from this history.  I am interested to hear student insights as to these possible historical lessons: do folks think this history suggests it is inevitable that the US will always be a death penalty nation, or that this history shows that the US has and could get along without many or even any executions?

Comments on what lessons we should take away from this history, and on what else is worthy of historical note and discussion here, are highly encouraged.  Also, I encourage thoughts about whether the total number of death sentences or capital prosecutions (rather than just actual executions) would be important data in this historical story.

Is there a strong constitutional basis for saying "death is different"?

We ended class with a question/issue/talking-point that may well haunt us throughout the semester and that has arguably haunted all modern legal debates over modern issues of crime and punishment: is "death" really different as a matter of constitutional law?

Couple of preliminaries as we unpack this question/issue/talking-point going forward:

1.  As a basic normative and empirical and factual matter concerning state punishment generally, the (too) simple assertion that "death is different" cannot be readily gainsaid.  John Stuart Mill in his renown “Speech in Favor of Capital Punishment” (worth reading and available here), observed punishment of death makes a unique "impression on the imagination" and "is more shocking than any other to the imagination."  The undeniable reality that death as a punishment "feels" different in kind than any other form of punishment necessarily means humans will react and respond to this punishment differently even if we try to treat it like any other form of punishment.

2.  As a basic historical and descriptive matter concerning state punishment generally, the observation that "death is (and always has been) different in criminal law's doctrines and practices" also cannot be readily gainsaid.  Much of both the common law history of criminal law's development, as well as much of modern statutory and related criminal punishment doctrines, reflect the reality that the people who make the law and shape its application "feel" differently about the death penalty than about any other form of punishment.

3.  As a basic matter of constitutional text, the doctrinal basis for asserting that special substantive and/or procedural constitutional rules should control the death penalty is a pretty hard argument to make. The Fifth, Sixth and Eighth and Fourteenth Amendments contain nearly all the constitutional provisions and prohibitions that get the most attention in litigation over the death penalty (and other punishments), but the text of these provisions do not appear to call for many (or any) unique doctrines just for the death penalty.

With this background, I am eager to hear via comments or in class whether and how one can develop a strong argument for the claim that the Constitutionjustifies or demands or even allows special substantive and/or procedural constitutional rules for the operation and application of the death penalty.   Putting this point a little differently, I think the easiest way to understand (and justify?) the pro-prosecution outcomes in cases like Williams and McGautha and McClesky comes from understanding that the justices in those cases were (justifiably?) concerned that any pro-defendant constitutional rulings would subsequently have to get extended to all non-capital cases and defendants.

Some SCOTUS death penalty news and notes

This week has already brought some notable death penalty action in the Supreme Court, and these blog posts over at my main blog about all the action has generated some interesting debates in the comments:

• Early report on Bies oral argument
• A SCOTUS win for the capital defendant in Cone v. Bell

A bit of death penalty history from DPIC

For those interested in a little more information about the history of the death penalty in the United States, the Death Penalty Information Center has an effective summary at this link. 

American DP history before McGutha

As I mentioned in class, one of my questions to begin our discussion of modern death penalty constitutional law is why it took nearly 200 years for the Supreme Court to seriously examine the constitutionality of the death penalty.  Of course, that question could (and perhaps should) lead to a broader examination of America's history with the death penalty since the nation's founding.

For general historical background on the death penalty, the Death Penalty Information Center has this reader-friendly overview of the history of the death penalty.  In addition, I wrote this introduction to an OSLJ symposium on capital punishment that highlights that "America's history with the death penalty has been a story primarily about, and directed by, legislative developments."