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.