October 05, 2016
Game planning next week's final(?) capital punishment discussions (and requests for expressions of any continued DP interest)
As I surmise you could tell from the last few classes, I am not at all troubled that our discussions of how Teddy K.'s capital case might play out in states like Florida and Texas has gone on longer than I had initially planned. I am hopeful you were able to get a real feel from this week's two classes concerning the various important structural and practical realities of modern death penalty decision-making that have resulted from the Supreme Court's modern Eighth Amendment "guided discretion" jurisprudence.
With the Teddy K. hypo and some of its lessons now covered, I want to update/clarify our plans and my expectations for next week's classes and beyond:
Monday, Oct 10: Guest presentation/discussion with Kevin Stanek, Assistant Chief Counsel for Ohio Governor John Kasich (and OSU Moritz College of Law Class of 2013). There is no need to prepare anything formal this class, but this Dispatch article and this part of a Wikipedia entry provides a quick overview of the Ohio execution administration issues that ACC Stanek will likely be discussing. (And for a lighter (and not-so-tasteful) look at these issues, check out this satire video from The Onion, "Ohio Replaces Lethal Injection With Humane New Head-Ripping-Off Machine.")
Tuesday, Oct 11: We will finally get to discussing McClesky v. Kemp (paying extra special attention to the final few paragraphs of the majority opinion and then debating a possible Ohio Racial and Gender Justice Act)
Wednesday, Oct 12: Wrap up DP discussions and start transition to LWOP/non-capital sentencing challenges by identifying enduring lessons ....
UNLESS YOU REPORT IN THE COMMENTS OR ELSEWHERE ABOUT ADDITIONAL CAPITAL PUNISHMENT ISSUES YOU WOULD LIKE TO HAVE US COVER IN CLASS. If nobody raises any addition death-penalty issues in the comments or in other ways with me, I will assume that everyone has already had more than their fill of death penalty discussions and thus will feel all that much more confident moving on to discussions of non-capital sentencing realities ASAP.
For those students hoping and eager for us to move on beyond our death penalty discussions, please feel free to get started on our first set of prison readings, in the form of:
- All of Chapter 7, paying particular attention to pp. 549-558, 570-581 and 595-623 (especially Graham v. Florida)
- A bit of Chapter 5, pp. 401-415 (especially Miller v. Alabama)
UPDATE: ACC Stanek suggested that everyone read this DC Circuit case, Cook v. FDA, to get a flavor of some of the challenges states face when trying to acquire the drugs needed to conduct a lethal injection.
September 12, 2016
Lots of interesting new buzz concerning the (sort of dormant) Ohio death penalty
Conveniently, my week away proved to be a period in which some interesting local death penalty news and commentary emerged, as evidence by these two recent posts from my main blog:
- Is Ohio again about to pioneer a new execution method?
These topics and lots of others will be a part of our coming extensive discussion of death penalty theory, policy and practice over the next few weeks.
February 11, 2015
Two fascinating new Ohio "who" sex offense sentencing stories
As mentioned in class, this week and next our class discussions will migrate from the basics of modern capital sentencing to the basics of modern non-capital sentencing. And, as the Coker and Kennedy cases highlight, all modern capital cases now involve only the crime of murder even though any number of sex offenses often lead legislatures to make special (and severe) sentencing laws and rules. On the topic of sex offenses, and with unique aspects of the "who" story in the mix, I recommend everyone check out these two new stories from my main blog concerns sentencing developments in our own state of Ohio:
February 05, 2015
Imaginging a (federal and mandatory?) death penalty only for mass shooters who kill more than five persons
A helpful student alerted me to this notable accounting of mass shooting in 2014 in the United States. Though I will not vouch for all the data, I still think it is notable (and not all that surprising) that this internet accounting of mass shootings lists 283 mass shootings in the US (roughly 5 every week of the year), and yet only 11 of these mass shootings involve five or more deaths (less than one per month on average).
In addition to finding these data fascinating, I continue to encourage folks to cull through this list of the 53 men who have been executed in Ohio in the modern era or this latest report from the Ohio Attorney General about the 140+ men on Ohio's death row to see how my proposed reform, if applied retroactively, would impact those past cases.
February 04, 2015
Link to Ohio Supreme Court oral argument in Ohio v. Moore
This morning (Feb 4, 2015), the Ohio Supreme Court heard argument in Ohio v. Moore to examine whether the SCOTUS 2010 Graham ruling declaring unconstitutional LWOP for juvenile non-homicide offenses should apply to a lengthy term-of-year sentence. The Justices asked many questions of both sides, and I believe only one of the seven Justices failed to ask at least one question.
The argument lasted for approximately an hour, and here is a link to the oral argument. I highly recommend all students interested in Eighth Amendment issues take the time to watch these proceedings.
I suspect and fear we will not get a ruling from the Court before the end of the semester (but maybe that will be a kind of good news allowing me to ask a take-home exam question about the case).
February 02, 2015
Major developments on Eighth Amendment juve sentencing fronts
Students should recall the class-preview post in which I noted two notable on-going cases concerning the Supreme Court's modern Eighth Amendment jurisprudence limiting the imposition of life without parole sentences on juvenile offenders. The end of last week and this coming week involve developments on this front:
Late last week, as reported in this post from my main blog, the petitioner at the center of the case SCOTUS took up to resolve whether its 2012 Miller ruling should be applied retroactively was released from prison. In addition to providing yet another interesting story about "who sentences," the release of George Toca means that SCOTUS will need to take up a new case to resolve whether its Eighth Amendment ruling declaring unconstitutional mandatory life without parole (LWOP) for juvenile murderers should be applied retroactively.
The Ohio Supreme Court will hear oral argument this week in Ohio v. Moore to examine whether the SCOTUS 2010 Graham ruling declaring unconstitutional LWOP for juvenile non-homicide offenses should apply to a lengthy term-of-year sentence. Helpfully, this post at Legally Speaking Ohio provides an effective argument preview, starting with the basic fact that "Brandon Moore was sentenced to a 112-year prison term for convictions in 2002 on three counts of rape, three counts of complicity to rape, three counts of aggravated robbery, kidnapping, and firearm offenses, all arising from offenses he committed when he was fifteen years old."
I am planning to attend the oral argument, which starts at 9am on Wednesday February 4, at the Supreme Court of Ohio. Folks interested in this case can read all briefs submitted via this Ohio Supreme Court link, including this short amicus brief that I helped author for the National Association of Criminal Defense Lawyers.
February 04, 2014
Some background and basics on capital punishment history and practices in Ohio and US
We could easily spend months discussing the history and modern specifics of the death penalty in specific jurisdictions like Ohio or the US. I will sometime reference this history and modern practices in class over the next few weeks, but here are some links of note concerning both jurisdictions to provide everyone with a (low-stress, high-learning) chance to discover a lot more on these topics:
Links with background on Ohio's history and practices in the administration of the death penalty
- From the Ohio Department of Rehabilitation and Corrections
- From the Ohio section of website of Death Penalty Information Center
- American Bar Association Ohio Death Penalty Assessment
- Ohio Attorney General's 2012 Capital Crimes Annual Report
- Ohio Revised Code Section 2929.04: Death penalty or imprisonment - aggravating and mitigating factors
Links with background on US history and practices in the administration of the death penalty
- Justice Department 2000 Survey/Review of Federal Death Penalty
- From the federal section of website of Death Penalty Information Center
- Congressional Research Service 2005 Overiew Report on Federal Death Penalty
- Title 18 United States Code Section 3592: Mitigating and Aggravating Factors to be Considered in Determining whether a Sentence of Death is Justified
October 13, 2011
Eastern State Penitentiary and other historic prisons
This post provides a space for discussion of today's video about Eastern State Penitentiary and more generally about prisons as out modern default sentencing "output." If you are interested in learning more about Eastern State, check out this terrific website.
In addition, there are lots of other (in)famous prisons that tell stories about not only American crime and punishment, but also stories about America. A number of notable Ohio-centric stories to be found within in this history, as documented by a relatively recent book entitled "Central Ohio's Historic Prisons." Here is a snippet from the book:
With the opening of the Ohio State Reformatory in 1896, the state legislature had put in place "the most complete prison system, in theory, which exists in the United States." The reformatory joined the Ohio Penitentiary and the Boys Industrial School, also central-Ohio institutions, to form the first instance of "graded prisons; with the reform farm on one side of the new prison, for juvenile offenders, and the penitentiary on the other, for all the more hardened and incorrigible class." However, even as the concept was being replicated throughout the country, the staffs of the institutions were faced with the day-to-day struggle of actually making the system work.
Excerpts from this book can be accessed at this link. The Ohio State Reformatory referenced in this passage is located in Mansfield, and is now an historic site (and also where the great movie The Shawshank Redemption was shot). I could be readily talked into a class field-trip to this site (for extra credit, of course, and we can skip "Glamour in the Slammer"). Even without a trip north, I urge everyone to take a virtual tour via this huge photo gallery.
Especially if you are looking for some weekend web-surfing fun, check out these additional links to some good sites about some of the United States' most famous or most interesting prisons and jails:
October 06, 2011
Ohio sentencing news and resources
Intriguingly, there has been a good bit of Ohio sentencing and punishment coverage in the Columbus Dispatch during our break this week, and I have linked some of the biggest stories via this post on my main blog. In addition, I encourage everyone interesting in Ohio non-capital sentencing law and policy to look around the website of the Ohio Criminal Sentencing Commission.
There are lots of notable (and intricate) materials to be found on the "Resources" sections of the OCSC website here and here. And I will likely assign for required or recommended reading later this month these particular OCSC documents:
- A Decade of Sentencing Reform (especially through p. 25)
- Prison Crowding: The Long View, With Suggestions
- H.B. 86 Summary: 2011 Changes to Criminal & Juvenile Law
September 16, 2011
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.”)
April 03, 2009
Some local stories and posts of note
Especially in light of some recent and past class discussions, everyone might be interested in these two recent posts from my main blog about Ohio happenings:
- Ohio's death row getting smaller (though new AG still laments pace of appeals)
Also, students already looking for a different (and fresh) perspective on federal sentencing discretion and the limits of law might want to check out the article references in this post: Deep thoughts about post-Booker sentencing and sources of law.
February 25, 2009
Effective press coverage of Ohio's modern death penalty history
The Dayton Daily News has an extraordinary collection of materials at this link under the heading "Special report: Death row in Ohio." Here is how the paper sets up its work:
About this series: For many convicted murderers, a death sentence doesn't really mean death. Since Ohio's current death penalty was put into effect, 28 people have died from state-ordered lethal injections — and 71 have walked off death row because of successful appeals.
Especially in light of our continuing discussion of McGautha and Furman and Gregg (and eventually McKlesky), this particular article from the series may deserve special attention: "Worst of the worst eludes death."
And, speaking of the worst of the worst, as some of you may already know, the modern story of the death penalty in Ohio will soon include yet another Supreme Court chapter as a result of the Justices decision earlier this week to take up another capital case from Ohio. This article from the Cleveland Plain-Dealer provides the basic back-story:
For the second time, the U.S. Supreme Court will consider whether Frank Spisak should be executed for killing three people at Cleveland State University. The high court announced Monday that it will hear the arguments after years of appellate disputes over the effectiveness of Spisak's legal counsel and the instructions jurors received at his trial....
Spisak, 57, was sentenced to death in 1983 after a four-week trial that included testimony that Spisak was a neo-Nazi and cross-dresser. A jury convicted him of the 1982 killings of the Rev. Horace Rickerson; Brian Warford, a CSU student; and Timothy Sheehan, CSU's assistant superintendent for buildings and grounds. Sheehan was the father of Cuyahoga County Common Pleas Judge Brendan Sheehan.
The 6th U.S. Circuit Court of Appeals ruled in 2006 that Spisak's death sentence should be dropped, and a new sentencing hearing should be set. The appellate court said defense attorneys "demonized" Spisak in closing arguments during the sentencing phase of the trial. It also said jury instructions as to the death penalty were unconstitutional. Specifically, the instructions during the sentencing phase erroneously required the jury to be unanimous in its findings that Spisak should not be executed.
February 03, 2009
Ohio's prison cost problems (and a class project?) for consideration
I mentioned in our first class together that every important public policy issues can be seen as a sentencing issue. A great timely example of this comes from the budget proposals put forth by Ohio's governor yesterday. Of course, this lead story from the Columbus Dispatch does not focus on sentencing issues. But, as detailed in the 3-page attachment linked below, paged D-70 to D-72 of the proposed executive budget have a lot to say about sentencing and punishment. Consider these snippets from these pages:
The Ohio Department of Rehabilitation and Correction’s (DRC) institutional population is at an all-time high and projects to keep growing. In 1971, the institutional population was 9,129. Of every 100,000 Ohio residents, 85 were incarcerated in a state prison. DRC ended calendar year 2008 with a prison population of 50,887, meaning that 443 of every 100,000 Ohio residents (586 out of every 100,000 adult residents) were incarcerated in a state prison. As shown in the chart below, DRC has predicted substantial increases in the prison population over the next ten years, reaching 59,846 in 2018.
Skyrocketing intakes (admissions to the DRC system) from calendar years 2002 to 2008 have been a primary driver of the increase in prison population. The number of prisoners who entered the DRC system a given year increased 25.4 percent, from 21,787 in 2002 to 29,069 in 2008. This increase in the annual intake rate has increased average sentence lengths, continuing to create upward pressure on the prison population. During fiscal year 2008, approximately 57 percent of inmates committed into the DRC system were low-level felony four (F-4) and felony five (F-5) offenders, whose lengths of stay average a little less than one year and cost the state hundreds of millions of dollars per year.
This Executive Budget proposes several reforms to criminal sentencing in Ohio, in an effort to cautiously and judiciously reduce the prison population and the associated substantial costs to taxpayers. The targets of these reforms are low-level, non-violent offenders, who drive the booming prison population. Reversing the current trend of population growth is imperative to the fiscal health of the state.
April 08, 2007
Notable local capital sentencing analysis
Sunday's Columbus Dispatch has this intriguing article entitled "Death sentences rare for local juries: Murderers convicted in Franklin County more likely to get life in prison." In addition to the article, the Dispatch has this fascinating review "of the last 100 aggravated murder indictments [in Franklin County which] shows that juries are becoming more reluctant to impose the death penalty."
March 29, 2007
The power of the personal
I was certainly moved by the stories of Ohio exonerees Gary Beeman and Dale Johnston, and I trust everyone else was, too. If folks want to express reactions or other thoughts, feel free to use the comments. (My own first thought was that I should have had the good sense to formally invite Governor Strickland and Attorney General Dann to attend.)
Both Dale and Gary gave me their contact information, which they encouraged me to share with students. In addition, Julie Przybysz gave me a binder with lots of information from Ohioians to Stop Executions (OTSE) that I am happy to copy for anyone interested.
January 19, 2007
Interesting Ohio developments
I predicted in class yesterday that this weekend might bring some interesting Ohio capital action, but our new Governor did not even waited for the weekend. As discussed here, Gov. Strickland late Friday signed warrants that delay the executions of three Death Row inmates who were scheduled to receive lethal injections in January or February.
The Governor's official statement and the full text of the warrants can be found here. Here's the money paragraph:
During my tenure as Governor, before I allow an execution to proceed, my staff and I will have conducted a comprehensive, thorough and searching review of the case to determine if any exercise of executive clemency is appropriate. The brief time I have been Governor has not allowed me sufficient time to conduct that type of review and there is not sufficient time before these scheduled executions to complete that type of review.
Of course, the place to go to get all the details (and the likely storm of new coverage) is the Ohio Death Penalty Information blog. I will be very interested to see whether this decision is applauded or criticized by other state politicians and the media throughout the state.