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September 22, 2020

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.  There has not been much litigation over the Kentucky RJA because that legislation was expressly made not retroactive so that it could not be applied to any person sentenced to death in Kentucky before July 1998.  (In contrast, many defendants on North Carolina's death row were able to file claims based on its state's RJA enacted in 2009, which in turn contributed to its repeal by the NC legislature in 2013).

Though there is much to discuss concerning McClesky and the Kentucky and North Carolina 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 partially on the KRJA and the NC-RJA):

1.  No person shall be subject to or given a sentence of death or shall be executed or sentenced to life without parole (LWOP) 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 or LWOP 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 or LWOP.  Evidence relevant to establish 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 or LWOP may include statistical evidence or other evidence that:

(A) Death or LWOP 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 or LWOP sentences were sought or imposed any more frequently as punishment for offenses against persons of one race or gender than as punishment of 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 not in any way any part of decisions to seek or impose the sentence of death or LWOP in the county, the prosecutorial district, the judicial division, or the State at the time the death or LWOP 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 or LWOP in the county, the prosecutorial district, the judicial division, or the State at the time the death or LWOP sentence was sought or imposed, the court shall order that a death or LWOP sentence not be sought, or that the death or LWOP sentence imposed by the judgment shall be vacated and the defendant resentenced to a lesser sentence.

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 or life without parole.  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 or LWOP 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 22, 2020 in Class activities, Death penalty history, Race and gender issues | Permalink

Comments

I definitely like the spirit of this proposed legislation and were I a Representative in Ohio's legislative body I would support it. However, Section 3 is intriguing to me as I consider what kind of evidence would have to be offered to prove beyond a reasonable doubt that neither race nor gender factored into the decision to seek the death penalty or LWOP. If this law were to be enacted, I could imagine prosecutors relying on some kind of rule of thumb to make these decisions (i.e. if you kill more than two people that triggers the decision for the state to seek the death penalty), but that still might produce a disparate impact in gender and race of defendants. Also wouldn't prosecutors in every case still have to point to the aggravating factors that make a defendant eligible for death or LWOP? If the aggravating/mitigating factors equation still turned out in favor of death or LWOP for a black defendant, I feel like Section 3 wouldn't make any difference, because prosecutors could just point to the aggravating factors to justify their LWOP or DP decision.

Posted by: Lindsey D Studebaker | Sep 24, 2020 12:12:26 PM

Well, I really like this bill and I would co-sign it with a few tweaks. I think that it is important to define what kind of statistical data would be accepted as proof that gender or race was used as a factor (state wide, county, minimum requirements for size and date range for data pool). I just think the issue with leaving it undefined would allow the courts to determine what level of specification is needed in the data.

I appreciate the "in any way" data because it allows for consideration of the race and gender of the victim, but I wonder to what degree you would be able to consider the race or gender of attorneys or decision-makers in the case.

Next, I think the legislation should include an affirmative duty for prosecutors to track the gender and race of all death or life eligible defendants and their victims and make this data publicly available. Currently, this data does not exist so prosecutors have no way of tracking their own bias AND it creates a significant burden on defendants who would need to prove there was some sort of statistical discrimination in their case.

Finally, I think there needs to be some sort of prescription for how to move forward to avoid bias in new cases. Without a significant effort to root out bias in the system, I would be concerned that prosecutors would simply pursue life or death based on a quota system instead of an individualized review. Without essential safeguards built into the legislation, it could very easily run afoul of the EP clause for white men who have killed white men.

Safeguards could include implicit bias training for prosecutors, police officers, judges, lawyers w/ annual IAT testing as bias can change throughout your life; IAT testing as a part of jury selection (either available to attorneys or for jurors own awareness, since studies show decisions are impacted when actors are aware of the role their own bias may play); as well as a requirement for jury instruction about gender and race bias in ANY life or death case.


Posted by: Ellen T | Sep 24, 2020 1:27:37 PM

Wading into waters of which I very poorly informed...but wouldn't critical race theory proponents point out that section 3 is impossible? The "systemic racism" that exists and is "embodied in law" means that it would be impossible for the state to ever meet its burden in section 3. Maybe lowering the evidence standard to something lower than BRD would make more sense. But I guess that still wouldn't fix the issue from the CRT proponents point of view...

Posted by: Christopher Wald | Sep 26, 2020 2:20:20 PM

Wading into waters of which I very poorly informed...but wouldn't critical race theory proponents point out that section 3 is impossible? The "systemic racism" that exists and is "embodied in law" means that it would be impossible for the state to ever meet its burden in section 3. Maybe lowering the evidence standard to something lower than BRD would make more sense. But I guess that still wouldn't fix the issue from the CRT proponents point of view...

Posted by: Christopher Wald | Sep 26, 2020 2:20:20 PM

3. "The state of Ohio has the burden of proving beyond a reasonable doubt."

I like this legislation because at least it puts everyone on notice to beware of bias. That along with the suggestion that all state parties (prosecutors, judges, attorneys, wardens and guards be required to participate in annual training intended to make conscious the implicit bias that occurs even when the actor does not intend bias. The burden of "beyond a reasonable doubt" seems to me a poison pill for this legislation and only insures the measure would not be adopted.

Different procedural changes you have stated stand the best chance of success. A standard like a required signed statement on arrests, prosecutions, sentences which states that "to my personal knowledge, no part of this (arrest, prosecution, sentencing) has been partaken by myself or those who have participated in this prosecution contained elements of expressed or implied bias." Here, comments to fellow police, prosecutors, jurors, even "you know how those people are" could have a real impact on behavior since certain evidence becomes inadmissible as well as having someones behavior scrutinized does modify behavior. This does not eliminate racism or bias but "behavior that results in ..." becomes a tool for the defense and could eliminate a considerable portion of weak evidence prosecutions and result in discipline of offenders who act for the state. Nobody like signing these type statements in other professions, but a few firings and prosecutions would remind state actors that they do not have "free speech" even in their personal life or online that express bias. The state "must be" unbiased, not the state "should be" unbiased.

Posted by: Gary Josephson | Sep 29, 2020 10:20:52 AM

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