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September 26, 2011

Working draft for proposed "Ohio Racial and Gender Justice Act"

As the casebook highlights, Kentucky in 1998 enacted the first statutory response to the McClesky ruling through its Kentucky Racial Justice Act.  And just two years ago, North Carolina followed suit through the enactment of the North Carolina Racial Justice Act

There has not been much litigation over the Kentucky RJA because that legislation was expressly made notretroactive so that it could not be applied to any person sentenced to death in Kentucky before July 1998.  (A short 2010 law review article on the Kentucky RJA can be found at this link.)

In contrast, many defendants on North Carolina's death row right now have pending claims based on the NC-RJA because that statute provided a one-year window for previously sentenced defendants to file a claim based on the NC-RJA.  All but a few death row defendants did file claims based on the NC-RJA, though litigation on particular defendants' claims have so far been stalled in the North Carolina lower courts.  (A long, now-dated 2010 law review article on the NC-RJA can be found at this link.)

Though there is much to discuss concerning McClesky and the Kentucky and NC RJAs, I wanted here to set forth my working draft of a proposed "Ohio Racial and Gender Justice Act" for discussion in the comments and in class.  So here goes (with language based in large part on the NC-RJA):

1.  No person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was, in any part or in any way, sought or obtained on the basis of race or gender.

2.  A finding that race or gender was in any way any part of the basis of the decision to seek or impose a death sentence may be established if the court finds that race or gender was in any way any part of decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.   Evidence relevant to establish a finding that race or gender was in any way any part of decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed may include statistical evidence or other evidence, including, but not limited to, sworn testimony of attorneys, prosecutors, law enforcement officers, jurors, or other members of the criminal justice system or both, that, irrespective of statutory factors, one or more of the following applies:

(A) Death sentences were sought or imposed any more frequently upon persons of one race or gender than upon persons of another race or gender.

(B) Death sentences were sought or imposed any more frequently as punishment for capital offenses against persons of one race or gender than as punishment of capital offenses against persons of another race or gender.

(C) Race or gender was in any way any part of decisions to exercise peremptory challenges during jury selection.

3. The state of Ohio has the burden of proving beyond a reasonable doubt that race or gender was in any way any part of decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.

4. If the court finds that race or gender was  in any way any part of decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed, the court shall order that a death sentence not be sought, or that the death sentence imposed by the judgment shall be vacated and the defendant resentenced to life imprisonment without the possibility of parole.

5. This act is effective when it becomes law and applies retroactively.

The language in bold and italics within my proposed Ohio statutory language highlights my tweaks to the Kentucky and NC RJAs, both of which concern only race and seem only concerned with race as a "significant" capital sentencing factor.  In addition, both acts place the burden on defendants to prove race was a significant factor in their cases.  As my draft reflects, I am very eager to ensure that neither race nor gender plays any role in the pursuit or imposition of the punishment of death.  In service to that goal, my proposal puts the burden on the state of Ohio, once a claim is brought under this Act, to prove convincingly that neither race nor gender played any role in the death sentencing process.

Thoughts?  Who is willing to co-sign this bill as proposed?  I am open to friendly amendments and also eager to hear if any legislators oppose this effort to eradicate the problem identified in McClesky through a legislative response.

September 26, 2011 in Class activities, Race and gender issues, Who decides | Permalink


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So this would eradicate enhancements for hate crimes? (For instance, where a murderer that specifically targeted Victim A instead of would-be Victim B because he/she is of a different race or gender.) I know that hate crimes are typically enhanced in sentencing, in large part because of the increased malice (http://www.govtrack.us/congress/billtext.xpd?bill=h110-1592).

I am not really sure how I feel about this -- I do see the merits of punishing those who have committed crimes out of categorical hate, whether it is retributivism (the extra malice) or general deterrence (hate-driven crimes will be treated more severely).

Just a thought -- it might end up being too messy or extraneous because the death penalty eligible crimes usually are the most cold-blooded...but then again I would worry about the different treatment of hate crimes depending on the level of severity -- I can see victims' families upset if a murderer who killed out of discriminatory intent was punished the same as one merely in cold-blood, whereas a different crime would yield different results.

Posted by: Heather Williams | Sep 26, 2011 6:35:11 PM

I would not be willing to co-sign the bill as it is now.

It seems like once you bring gender into the mix no one would get a capital sentence. I think men commit more death eligible crimes that meet all the statutory requirements then women (no stats to support, but my belief). Thus, by default wouldn't all men have a claim for discrimination based on gender because they are sentenced to death more often, besides juries are often reluctant to even sentence women to death (again no stats, but my belief).

Also, I feel that the state carried the burden at trial, where they convinced a jury beyond a reasonable doubt of the defendant’s guilt and then again during the sentencing phase convinced the jury, where more extrinsic evidence is allowed for the defense, that the defendant was deserving of death. I believe that having meet these constitutional requirements the defendant should carry the burden to challenge the imposition of the death sentence based on discrimination.

I am not convinced that additional avenues of appeal or review are going to make the death penalty any more reliable or fairly enforced in my view and it will not placate the people who oppose the death penalty in general. So why add additional layers to an already complex and long drawn out process.

Posted by: Patrick McGrath | Sep 27, 2011 8:55:02 AM

I would propose a friendly amendment to remove the language about “gender,” as long as the burden on Ohio to show that no gender discrimination exists is "beyond a reasonable doubt." In Ohio, men are sentenced to death and executed at a rate much higher than women. According to Wikipedia (the most authoritative source since the Constitution) 45 men have been executed compared with 0 women in the years after Furman was decided. So it would be easy to come up with statistical evidence that “death sentences were sought or imposed any more frequently” on men than women. If the burden is on the government to prove beyond a reasonable doubt that this disparity is not due to gender discrimination, I doubt that Ohio could overcome this burden. Ohio would need to show that this disparity can be explained by some other factor (such as the amount of capital-eligible crimes actually committed by men versus women). But considering how wide the disparity is, I doubt that Ohio would be able to overcome its burden. "Beyond a reasonable doubt" would require too much evidence to overcome 45-0. By enacting this legislation, we might just be getting rid of the death penalty for male defendants (including those currently on death row) by setting too high of a burden on the state.

Posted by: Rees Alexander | Sep 27, 2011 9:08:01 AM

My initial reaction to this proposed Ohio Racial and Gender Justice Act was that it was overly broad and too far-spreading . . . that it would enable inmates to challenge widespread racial and gender disparities rather than being forced to focus narrowly on whether they themselves were the victims of discrimination. However, after spending some time reviewing this proposal, I think that a broad law might be what is needed.

The way the death penalty is imposed today seems to run counter to the post-Furman promise that the death penalty would be applied in a rational and non-arbitrary way. Research suggests that racial and gender bias continues to exist in the application of the death penalty. If we are going to allow defendants to use statistics to challenge racial bias, why should we not allow statistics challenging gender bias? Research on gender bias shows that while women comprise 13 percent of U.S. murder arrests, they account for only 2 percent of the death sentences, and make up only 1.5 percent of all persons presently on death row. While other factors may explain some of this disparity, it seems much of this disparity could be the result of social biases that view women as less responsible for their actions and less capable of defending themselves. Because of gender stereotypes, prosecutors and juries seem reluctant to impose the death penalty upon women. Moreover, research shows that in cases where the victim is female, the death sentence rate is much higher than when the victim is male.

If we are going to stay true to Furman and apply the death penalty in a rational and non-arbitrary way, it seems we should allow defendants to use statistics to challenge both racial and gender bias. As the previous posts note, placing the burden on Ohio to show that no gender discrimination exists beyond a reasonable doubt could effectively eliminate capital punishment. I think this goes to show that the application of the death penalty is unfair and arbitrary. However, perhaps as a friendly amendment, the burden of proof should be lowered?

Posted by: Todd Seaman | Sep 27, 2011 11:20:25 AM

I actually like the "significant" factor language. I know the point of this draft is to eliminate race and gender from playing any part in pursuing the death penalty but in my view it will always play a part in any decision reached by a jury or a judge. The role played by race or gender may be small and although we as a society may not want that, I am not sure our society could ever get past it.

In my view, there can never be a rational, non-arbitrary standard when deciding to apply the death penalty unless the decision is removed from the hands of those closest to the conviction. I may have to think about this more but passing the decision to a non-elected board (a death board) which would review the case and decide if death is warranted for the particular offender seems like a better option. If that isn't palatable then we should just get rid of the death penalty, forgo the cost of having someone on death row (including the numerous appeals) and just sentence them to life imprisonment.

Posted by: Alejandro Abreu | Sep 27, 2011 12:25:24 PM

In response to Pat's concern about judicial economy, I'd like to make a friendly amendment that appeals based on this statute for those convicted after it's enactment must be brought within the existing appeals structure. I don't think there's a problem with this because I would think the law applies at both state appeal and federal habeas corpus appeals.

Posted by: Colin P | Sep 27, 2011 12:54:56 PM

I think that having the burden on the state to prove that there was no bias is problematic. I think that proving an absolute negative would be extremely difficult especially taking into account all of the actors who could be responsible for the bias. Add to this the fact that they must prove it beyond a reasonable doubt I'm not sure that the state would ever be able to carry their burden.

I think we either need to put the burden back on the defendant or make it a significant factor instead of just any factor.

Posted by: Sean B. | Sep 27, 2011 1:19:24 PM

I think that the problem with McClesky data is that is can show you the shadows of the monsters hiding in the forest, but never that there is a monster behind any particular tree. Making it the obligation of the state to disprove racial or sex discrimination is clever thinking, but I think we should back up before considering it.

If the problem with the death penalty is the application in racial and gender terms in sentencing (and not with the idea of capital punishment itself), then why would that not be true with all forms of sentencing? Say, perhaps make this the rule for all felony crimes. I think it is an interesting thought, but it would harm court efficiency and judicial economy. So, if we would not enact such a system across the board (where McClesky-style data would probably imply the presence of some racism and sexism everywhere), why would we impose it only in capital crimes?

Also, I suspect that putting the burden on prosecutors to disprove any hint of racism will have interesting effects at the peremptory challenge portion of jury selection. If it is true (with McClesky data) that all-white or majority-white juries are the ones that tend to produce discriminatory effects in terms of race and sex of the defendant, it seems that prosecutors would need to protect their flanks by doing what they can to avoid jurors that (again, with McClesky data) are the precise groups that tend to impose the death penalty disproportionately. How to square the possibility of striking jurors on that basis with the principle of non-discrimination in jury selection is beyond me.

Posted by: Ethan Evans | Sep 27, 2011 1:27:34 PM

I oppose this bill for several reasons. For one, as I mentioned in class, what must the statistical evidence show in order for it to prove race or gender played a role in seeking or obtaining the death penalty. Also, how far are we willing to unpack this evidence. Can any of us be confident in a legal standard that allows statistical evidence to become a per se showing of intent?

Second, and this is where I truly disagree with the idea, by creating a judicial mechanism to litigate the issue of racial and gender bias I think we end up calcifying the belief Marshall argued against. I would submit that most people have an implicit trust in the criminal justice system. When citizens who could never comprehend committing murder are told a convicted murder has to first be found guilty of a specifically heinous murder, then have death recommended by a jury, can subsequently appeal these decisions, and has further appeals to a parol board and the governor for clemency they are likely to belief we are not unjustly committing murder. We have shrunk the ability to get a ticket to the lottery so much that only the truly deserving are involved. As someone who favors a complete abolition of the death penalty I do not want people to be able to be even more comfortable making such an assumption. So, thinking strategically, I don't want the best possible functioning death penalty system. The problems associated with the death penalty lottery are never going away, and I feel like adding additional layers only serves to hide the systemic and societal pressures the law cannot solve. If people want the state to kill murders, make them deal face their chases not hide behind so false belief that we have creating a just system.

Posted by: Kevin S | Sep 28, 2011 5:40:57 PM

I don't support eliminating the "gender" requirement from the proposed act. One concern with the gender requirement seems to be that, with the burden of proof on the state to explain away disparate gender sentencing stats, the ultimate effect of the act will be to virtually eliminate the application of the death penalty in Ohio. In my opinion, if the state cannot prove beyond a reasonable doubt that male defendants are not being discriminated against, then the virtual elimination of the death penalty in Ohio is a good outcome--or at least one that is better than permitting grossly disproportionate treatment of men compared with women in death sentencing. Equal protection under the law and the integrity of the sentencing system should supercede the need for imposing the death penalty if the death penalty is being imposed so disproportionately.

Posted by: Harrison Markel | Sep 29, 2011 1:56:26 PM

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