Sentencing Class @ OSU Moritz College of Law

Background information on (your hypothetical capital client) Theodore Kaczynski

In order to effectively draw lessons about the modern realities of modern death penalty law, I encourage everyone to try to seriously imagine how one might seek as a defense attorney to avoid a death sentence for Theodore Kaczynski under the capital punishment statutes of Florida, Ohio and Texas.  To aid in this endeavor, it will be useful to read up on Ted's life history and crimes.  Here are some links to help with this task:

1.  Wikipedia's entry on Theodore Kaczynski is pretty effective and has lots of additional links for additional information.

2.  Court TV has this on-line archive with lots of reporting and information/links about Ted and his federal prosecution.

3.  Time Magazine published this fascinating article about Ted 10 years ago.  The headline and sub-heading of the article gives you a taste of some of its notable content:

"I Don't Want To Live Long. I Would Rather Get The Death Penalty Than Spend The Rest Of My Life In Prison": Ted Kaczynski talks about life in jail, his appeal plans and his brother David, who still struggles over the decision to turn in the Unabomber.

Victim involvement in the capital punishment process

I mentioned in class an article about victim participation in the death penalty process.  That article, titled "Their Day in Court: The Role of Murder Victims' Families in Capital Juror Decision Making," can be accessed at this link.  I recommend the whole piece, but here are some snippets of particular note as we get into discussion of racial and gender bias in the application of the death penalty:

When we cross-tabulated co-victims' testimony for the prosecution with the victim's race, we discovered a very significant finding: the co-victims of a white murder victim were more likely to offer testimony than the co-victims of a nonwhite victim....

[W]e find that jurors tend to be less concerned about the suffering of nonwhite-victim families than with white-victim families.... It is possible that since families of nonwhite victims testify much less often (perhaps as a result of institutionalized racism or their own feelings about capital punishment), their place in the minds of jurors is diminished. As a matter of policy, we would strongly encourage greater participation of family members of nonwhite victims in capital trials because their [testimony] may make their side of the story increasingly memorable to jurors. Although the findings we report do not show dramatic differences between whites and nonwhites in terms of participation, the evidence that jurors exhibit racially biased attitudes is statistically significant, and it is discouraging to see race bias plague yet another area of capital punishment.

Among the points worthy of reflection here is that this study is only seeking and able to examine the impact of victims in capital cases that go to trial.  Yet there is little doubt that victims can and often do have a profound impact on prosecutorial charging and bargaining decisions in capital cases. 

I am inclined to speculate that the racial biases discussed in this article with respect to jury decision-making could be even more profound with respect to prosecutorial decision-making in capital cases.  And yet this is only rank speculation because prosecutorial decision-making in capital cases is rarely studied or even subject to measurement through effective data.

The death penalty and plea bargaining

Especially as we are unpacking the past and present reality of who imposes death sentences, a new analysis of the death penalty and plea bargaining realities merits our collective attention.  The analysis appears in this new working paper, titled "The Death Penalty and Plea Bargaining to Life Sentences."  I discuss the report (and link to other notable posts on the topic) here at my main blog, and in light of our recent classroom discussion I wanted to spotlight one particular passage from the paper:

[Here is an accounting of] the disposition of cases in the sample used in this study. For every 100 suspects arrested by the police and charged with murder, 19 cases were rejected at initial screening and 81 went forward.  Of the 81, 42 went to trial and 39 pleaded guilty.  Of the 42 trials, 8 were acquittals and 34 were convictions.  Thus, of the 81 cases carried forward, 73 ended in convictions of some crime, though not necessarily of murder.  Of these, 65 were sentenced to incarceration of more than one year.

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.

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. 

Execution methods and theories of punishment

This week we will turn this week from broad discussion of capital punishment theories and practices to a focused discussion of constitutional doctrine.  (And here is a reminder that everyone should be prepared to discuss the McGautha case.)  But this great newspaper article, headlined "Firing squads are more humane, experts say," provides a great overview of how different death penalty theories and practices intersect when we consider execution methods.  Here are some notable snippets from the article:

Rep. Delmar Burridge knows his death penalty bill isn’t going anywhere this legislative session. His bill to bring back the firing squad as punishment for gun-related murders didn’t have a single sympathizer during a recent House committee hearing, and Burridge said he brought the proposal forward to make a point, not new law.

But some execution experts say that the Keene Democrat’s proposal should get a fair hearing. Firing squads, they say, may look old-fashioned and barbaric, but they may be more humane than other methods.

A 1993 study that examined the pain associated with different execution methods had firing squad ranked close to lethal injection. But that research came before more recent reports about problems with lethal injections — incompetent executioners, medically complicated inmates and otherwise botched executions — that have led five states to put executions on hold as they consider ways to improve the status quo.

“That’s definitely something worth investigating,” said Deborah Denno, a professor at Fordham Law School in New York who has studied execution methods for 18 years and testified in state and federal courts about lethal injection. “There’s evidence that (a firing squad) could be the most humane method that’s currently available.”...

Burridge said he chose the method primarily for its public-relations value. He said he thought a death by shooting might be more likely to stick in the minds of would-be criminals and deter them from committing crimes using guns. “I call it the enhanced death penalty,” he said. “You’ve got to love the marketing.”...

Worldwide, firing squad is the most common method of execution. But it’s generally associated with “repressive governments,” including Libya, Cuba, Afghanistan and Uzbekistan, said David Fathi, the U.S. program director at Human Rights Watch. His organization, which opposes the death penalty, authored an influential report in 2006 outlining failings in the states’ lethal injection protocols. But despite those problems, Fathi did not agree that New Hampshire should choose the firing squad. “These are not countries that we generally strive to emulate,” he said....

One strong argument in favor of lethal injection and against the firing squad is the appearance of the execution. Lethal injection looks dignified and painless to watchers, said Richard Dieter of the Death Penalty Information Center. “The guards, the wardens, the witnesses probably do not want five rifles going off and a bloody person bleeding to death in front of them,” Dieter said. “I think these methods are partially chosen for their appearance.”...

On this very blog, back when it was used as a resource for the death penalty course taught at Moritz in Spring 2007, students can find lots and lots of posts on execution methods:

• More on executions methods and the role of doctors
• Readings for Feb. 21 on execution methods
• Follow-up execution method readings

• Does the Florida LI commission's recs require greater doctor involvement?

A place for more (gendered?) reactions and comments on the death penalty

Because I found today's guest lecturer so interesting, I am sorry we did not have hours and hours to continue discussing what our guest said and how everyone reacted to what she said (and how I (over?)reacted to how others reacted).  Fortunately, we can and should continue these dialogues via this blog (and here people can (and should?) even feel free to post comments anonymously).

To the extent that persons are interesting in some data on the intersection of gender issues and the death penalty, this link at the Death Penalty Information Center provides lots of details about notably few women offenders have been set to death row and executed in the United States in the modern era.

As for the significance of the victim's gender, this recent study states that its "examination of prosecutorial and jury decision making reveals that although victim gender has little impact on prosecutorial decisions, it has a meaningful impact on jury decisions."  However, this slightly older article, which is focused particularly on Ohio cases, reports findings indicating "that homicides with white female victims were more likely to result in death sentences than other victim race-gender dyads."

So, comment away...

Lots and lots of resources on Kennedy child rape capital case

Our class conversation on Wednesday confirmed my instinct that there is a lot we can and should learn by extra attention to the litigation and outcome in the Kennedy child rape capital case decision by the Supreme Court last summer.  Helpfully, the blog Sex Crimes has this terrific resource page with lots and lots of links to lots and lots of materials and commentary about the case.

On that page you can find this link to the full Supreme Court opinion in Kennedy.  Here are some especially notable passages from the majority opinion in Kennedy (per Justice Kennedy) that I want to highlight as we continue to discuss some theoretical and practical justifications for the death penalty:

The crime of child rape, considering its reported incidents, occurs more often than first-degree murder. Approximately 5,702 incidents of vaginal, anal, or oral rape of a child under the age of 12 were reported nationwide in 2005; this is almost twice the total incidents of intentional murder for victims of all ages (3,405) reported during the same period.  See Inter-University Consortium for Political and Social Research, National Incident-Based Reporting System, 2005, Study No. 4720, http://www.icpsr.umich.edu (as visited June 12, 2008, and available in Clerk of Court’s case file). Although we have no reliable statistics on convictions for child rape, we can surmise that, each year, there are hundreds, or more, of these convictions just in jurisdictions that permit capital punishment. Cf. Brief for Louisiana Association of Criminal Defense Lawyers et al. as Amici Curiae 1–2, and n. 2 (noting that there are now at least 70 capital rape indictments pending in Louisiana and estimating the actual number to be over 100).  As a result of existing rules, see generally Godfrey, 446 U. S., at 428–433 (plurality opinion), only 2.2% of convicted first-degree murderers are sentenced to death, see Blume, Eisenberg, & Wells, Explaining Death Row’s Population and Racial Composition, 1 J. of Empirical Legal Studies 165, 171 (2004). But under respondent’s approach, the 36 States that permit the death penalty could sentence to death all persons convicted of raping a child less than 12 years of age. This could not be reconciled with our evolving standards of decency and the necessity to constrain the use of the death penalty....

Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice. The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system; and this is but a subset of fundamental difficulties capital punishment can cause in the administration and enforcement of laws proscribing child rape.

There are, moreover, serious systemic concerns in prosecuting the crime of child rape that are relevant to the constitutionality of making it a capital offense. The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” in some child rape cases. Atkins, supra, at 321. See also Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 5–17. This undermines, at least to some degree, the meaningful contribution of the death penalty to legitimate goals of punishment....

With respect to deterrence, if the death penalty adds to the risk of non-reporting, that, too, diminishes the penalty’s objectives. Underreporting is a common problem with respect to child sexual abuse.... Although we know little about what differentiates those who report from those who do not report, one of the most commonly cited reasons for nondisclosure is fear of negative consequences for the perpetrator, a concern that has special force where the abuser is a family member. The experience of the amici who work with child victims indicates that, when the punishment is death, both the victim and the victim’s family members may be more likely to shield the perpetrator from discovery, thus increasing underreporting. See Brief for National Association of Social Workers et al. as Amici Curiae 11–13. As a result, punishment by death may not result in more deterrence or more effective enforcement.

In addition, by in effect making the punishment for child rape and murder equivalent, a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim. Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime. See Rayburn, Better Dead Than R(ap)ed?: The Patriarchal Rhetoric Driving Capital Rape Statutes, 78 St. John’s L. Rev. 1119, 1159–1160 (2004). It might be argued that, even if the death penalty results in a marginal increase in the incentive to kill, this is counterbalanced by a marginally increased deterrent to commit the crime at all. Whatever balance the legislature strikes, however, uncertainty on the point makes the argument for the penalty less compelling than for homicide crimes.

Breaking Ohio death penalty news (allowing more "who" analysis)

While we were starting to work through some "who" issues in class today, an Ohio agency made a notable decision in a notable death penalty case.  Here are the basics from this Columbus Dispatch article:

A Hamilton County man who stabbed his 62-year-old mother to death while he was on a crack-cocaine binge should not be executed and should be released in as little as seven years, the Ohio Parole Board recommended to Gov. Ted Strickland.

Jeffrey Hill, 44, is scheduled to be lethally injected March 3 at the Southern Ohio Correctional Facility near Lucasville unless Strickland or a court intervenes. Parole board members were clearly impressed with what a report released today called the "compelling and unanimous opinion" of the family of victim Emma Hill that her son and killer should not be executed. "They have suffered tremendous loss, and execution would add further to their suffering," the board said.

Hamilton County Prosecutor Joseph T. Deters, a strong capital punishment supporter, opposed clemency.  But he said today he will no longer pursue it given the parole board recommendation and strong support from the family.  "I would have preferred he stayed in jail the rest of his life," Deters said. "We've done our job. Part of the law says this is something the governor can do."

The board recommended to Strickland that Hill's death sentence be commuted to life in prison with parole eligibility after 25 years, meaning he could be released in as little as seven years.

Hill was high on crack cocaine on March 23, 1991, when he stabbed his mother 10 times in the back and chest, stole $100 and made two trips to buy cocaine.  In a letter to the editor last month [available here], Hill's uncle, Eddie Sanders of Mount Healthy, urged public support for clemency....

All county, state and federal courts have upheld Hills conviction and death sentence.

Though everyone is encourage to comment on any aspect of this story, I would be especially interested in whether anyone might be able to develop a viable argument suggesting that Governor Strickland ought not follow the parole board's recommendation.

UPDATE:  I just found this link to the Ohio Parole Board's full order in this case.

Did you notice what theory of punishment is being pursued by USA Swimming...

in its punishment of Michael Phelps?  Here is the organization's official statement:

USA Swimming has reprimanded Michael Phelps under its Code of Conduct by withdrawing financial support and the eligibility to compete for a period of three months effective today, Feb. 5, 2009.

This is not a situation where any anti-doping rule was violated, but we decided to send a strong message to Michael because he disappointed so many people, particularly the hundreds of thousands of USA Swimming member kids who look up to him as a role model and a hero.

Michael has voluntarily accepted this reprimand and has committed to earn back our trust.

Some related posts from my other blog:

• Is golden boy Michael Phelps going to be charged with a state drug crime?
• "Michael Phelps, Hypocrisy, and American Drug Policy"
• Should those seeking drug policy reform hope that Micahel Phelps get prosecuted?
• Michael Phelps punished by USA Swimming with suspension

The long and short of sentencing reports . . . and equality conundrums

Though we could follow up on many points discussed in Wednesday's class in many ways, I wanted to here to link to recent reports (both long and short) to help get you thinking more about the different ways that different groups package their sentencing insights.

First, here is a linkto the full New York sentencing report from the state's Commission on Sentencing Reform. (This report runs a tree-frightening 326 pdf pages).  Second, here is a linkto a new report The Sentencing Project, which highlights 17 states that enacted sentencing and corrections reforms in 2008.  (This report is an eco-friendly 17 pdf pages). 

Also, a new law review article discussed here provides a thoughtful perspective on equality issues that we will discuss during Friday's class and that we will struggle with through the semester.  (This article is not (yet) required reading, but it is right now highly recommended.)

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.

Download Ohio Budget Sentencing and Correctional Reform