Sentencing Class @ OSU Moritz College of Law

Some timely data and discussion about race as we consider McClesky (and also about execution methods)

Though I provided in this post a working draft of a proposed "Ohio Racial and Gender Justice Act" (which I hope to discuss in class on Thursday), I now realize it makes sense to also provide here some recent data and discussion on how race seems to impact our capital justice systems.  

From the Death Penalty Information Center: "Executions by Race and Race of Victim" and a huge new report titled "Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty."  An excerpt:

Throughout the modern era of capital punishment, people of color have been overrepresented on death row.  In 1980, 45.6% of death row prisoners were people of color, and this percentage has increased every decade. By 2019, this percentage had risen to 57.8%.  Currently, white and African-American prisoners each comprise 42% of those on death row and Latinx prisoners make up 13%, with 3% of death row comprised of other races/ethnicities.   These figures can be contrasted with the racial and ethnic makeup of the population as a whole. Approximately 60.4% of the population is white.

The opposite trend is apparent in the racial composition of the victims of those who have been executed in the modern era. Seventy-five percent of murder victims in cases resulting in an execution have been white, even though only half of murder victims are white.  In cases with victims of a single race, 295 African-American defendants have been executed for the murder of white victims, while only 21 white defendants have been executed for the murder of African-American victims.

From the National Coalition to Abolish the Death Penalty: "Racial Bias" and "Jury Selection" and "Race of the Victim" (last link summarizes a lot of academic studies).

From NPR here is a brand new piece, titled "How A Perpetrator's Race And Age Factor Into Who Is Executed," speaks to these issues in the federal system with the scheduled upcoming execution of Christopher Vialva, a black man who killed white victims.  An excerpt:

REPORTER: Vialva is not claiming he's innocent. Instead, his case resembles most of those that end in the death house in Indiana. Like Vialva, who was 19 when he killed the Bagleys, 1 in 4 of the men on federal death row committed their crimes before they reached the age of 21. And of the 57 people on the row, more than half are people of color. Sam Spital is director of litigation at the NAACP Legal Defense Fund.

SAM SPITAL: There have been over 500 cases between 1988 and now where the attorney general of the United States authorized federal prosecutors to seek death. And in over two-thirds of those cases, the defendant was either Black or Latinx. And in only about a quarter of the cases was the defendant white.

REPORTER: Spital says the race of the victim also matters a lot.  Defendants who kill white people are 17 times more likely to be executed.  He says those disparities exist in both the state system and the federal system.

And what about Ohio? Helpfully, we have this fairly recent study from Frank Baumgartner, "The Impact of Race, Gender, and Geography on Ohio Executions."  An excerpt:

Between 1976 and 2014, the state of Ohio executed 53 men.  Here are a few key findings of this research:

• Sixty-five percent of all executions carried out in Ohio between 1976 and 2014 were for crimes involving White victims despite the fact that 43% of all homicide victims are White.
• Only 27% of all homicide victims are female, but 52% of all executions carried out in Ohio were for homicides involving female victims.
• Homicides involving White female victims are six times more likely to result in an execution than homicides in involving Black male victims.

And speaking of NPR and Ohio, NPR has also recently had two big pieces about lethal injection execution methods that have important coverage of Ohio (and discusses the work of a notable former member of this class). I highly recommend these pieces if you are interested in the debate over execution methods or Ohio's history with executions:

"Gasping For Air: Autopsies Reveal Troubling Effects Of Lethal Injection"

"Autopsies Spark Legal Fight Over Meaning Of Cruel And Unusual Punishment"

Notable statements by Gov DeWine spokesman and defense lawyer in wake of lethal injection ruling

As mentioned in this prior post, the Sixth Circuit panel ruling in In re Ohio Execution Protocol Litigation, No. 19-3064 (6th Cir. Sept 11, 2019) (available here), sets up the "next big question" of whether Ohio Gov DeWine will now be eager to move forward with the scheduled executions that he previously stayed.  This local article about the ruling ends with an interesting discussion of this matter:

Following Merz’s ruling [not overturned by the Sixth Circuit], DeWine ordered a review of the state’s execution protocol and to search for new drugs to use.  The state so far has been unable to find alternative drugs, though, and the governor has asked state lawmakers to consider finding an altogether different way to put condemned inmates to death besides lethal injection.

DeWine’s apprehension stemmed from the concerns Merz laid out in his opinion. With the 6th Circuit saying that Merz was mistaken and that attorneys for the condemned inmate didn’t prove the method is unconstitutional, it was unclear whether DeWine’s thinking will change on the issue.

Gubernatorial spokesman Dan Tierney, when asked whether Wednesday’s ruling affected DeWine’s apprehension about Ohio’s lethal-injection protocol, said that the governor, who’s currently in Japan as part of a trade delegation, and other administration officials are still reviewing the ruling.

However, Tierney noted that the governor has previously expressed concern about other aspects of Ohio’s execution method besides constitutional issues -- including the ongoing difficulty Ohio has had buying lethal-injection drugs from pharmaceutical manufacturers that have become increasingly reluctant to sell the drugs (most of which have other, medicinal uses) for use in executions.

Since taking office in January, DeWine has deflected questions about whether he continues to personally support the death penalty.  Rather, he has answered such questions by saying capital punishment is the law in Ohio....

David Stebbins, a federal public defender representing Henness, said Wednesday’s opinion “does not reflect the known facts about how the three-drug protocol acts upon the human body.”

“We are hopeful Governor DeWine continues to thoughtfully consider how to implement capital punishment in Ohio and will not reinstate executions using the torturous midazolam method of execution," Stebbins said.

Just in time for our turn to discuss the modern death penalty...

we have lots of notable Ohio death penalty news.  For starters, yesterday a Ohio judge officially imposed a sentence of death here in Columbus as reported in this local article.  Here are some details (with a few "whos" highlighted):

Clifton Duckson doesn’t know if the man who murdered his daughter and granddaughter in the backyard of his Far East Side house will ever be executed.  It was enough for him to be in a Franklin County courtroom Wednesday when the judge imposed the death penalty.  “I just needed to hear the words,” he said after Common Pleas Judge Chris Brown followed a jury’s recommendation and sentenced Kristofer Garrett to death. “Whether he ever gets put to death, that’s not my concern.”

Duckson encouraged the judge to follow the recommendation on behalf of his 4-year-old granddaughter, Kristina Duckson, and her 34-year-old mother, Nicole Duckson, who were fatally stabbed on Jan. 5, 2018.  “I ask for justice, not revenge,” he said. “I’m asking for what those 12 jurors agreed was justice — the maximum penalty that the law will allow for these horrific murders.”

The jury convicted Garrett, 26, of aggravated murder charges on Aug. 6. Testimony showed that Garrett ambushed Nicole Duckson, his ex-girlfriend, and their daughter, stabbing them repeatedly in the snowy backyard of the Fleet Road home they shared with Nicole’s father.

Eight days later, after weighing the aggravating circumstances of the crimes against mitigating factors presented by Garrett’s defense team, the jurors agreed that two of the aggravating circumstances in Kristina’s death — that she was under the age of 13 and that Garrett killed her to cover up Nicole’s murder — outweighed any mitigating factors and recommended the death sentence.

The judge, who had the option of imposing a sentence of life in prison, said he reached the same conclusion as the jury, and thus was required by state law to impose the death penalty.

It was the first time since 2003 that a Franklin County jury had recommended a death sentence.  The last death sentence in the county was imposed in 2012 by a three-judge panel for Caron Montgomery, who waived his right to a jury in the stabbing deaths of his girlfriend and her two children.

“I think when children are victims of a terrible crime, I think juries are going to look at (the death penalty) and the court’s going to look at it,” Prosecutor Ron O’Brien said after the hearing when asked about the rarity of death sentences in Franklin County.

And just today, a panel of local federal judges got in the "who" act when they upheld the constitutionality of the (somewhat unique) lethal injection protocol that has been adopted by Ohio corrections official.  The ruling in In re Ohio Execution Protocol Litigation, No. 19-3064 (6th Cir. Sept 11, 2019) (available here), unlike lots of other death penalty opinions, is pretty short and shows what appellate judges can do when so interested.  As I explain in a post on my main blog, the next big question in this setting is whether Ohio Gov DeWine will now be eager to move forward with executions that he stayed based on the (now rejected) findings by a lower federal court in this litigation:  After Sixth Circuit panel approves (resoundingly) Ohio's execution protocol, will state now seek to restart its machinery of death?

Follow-up after (too little) time with the Assistant Chief Counsel for Ohio Governor John Kasich

I am sorry we did not have more time to allow Kevin Stanek, the Assistant Chief Counsel for Ohio Governor John Kasich, to complete his tales about Ohio's fulsome history with lethal injection litigation.  But I trust you all got a flavor of some of the major themes I consider most important for our broader class's purposes: a whole bunch of distinctive (unexpected?) "whos" can and often will have a huge impact on whether, when and how death sentences actually get carried out in Ohio and elsewhere.

For more on that front with a continued focus on lethal injection drug acquisition and litigation, it is worth checking out the WNYC's Radiolab: More Perfect program on state efforts to acquire lethal injection drugs, which is titled "Cruel and Unusual."  The 40-minute radio program covers a lot of ground in ways both familiar and unfamiliar, including a notable discussion of the political impact of the Furman ruling and its aftermath starting around the 16-minute-mark (which in turn inspired the Oklahoma legislator who came up with the medicalized three-drug lethal injection protocol).

In addition, the constitutional litigation that has gummed up the works of death penalty in Ohio over the last decade has also gummed up the work in a lot of other states.  Here is an  a report from my main blog about a (very red) state to Ohio's south that has been dealing with similar issues: "Detailing how litigation over lethal injection methods has shut down Mississippi's machinery of death for now a half-decade."

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.

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:

• Former GOP Ohio Attorney General explains why he is convinced "the death penalty is just not worth it any more"

• 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.

Lots of extra credit for writing about lethal injection for JURIST

Late last night, I received this invitation/inquiry via e-mail:

Dear Professor Berman:

My name is Elizabeth Hand, and I am writing on behalf of the University of Pittsburgh JURIST's Dateline service. JURIST is an ABA and Webby award-winning legal news service that reaches hundreds of thousands of readers weekly. JURIST has been cited 700 times in law reviews and briefs to the US Supreme Court, state supreme courts, and federal appellate courts. It has also been cited in nearly 500 published books, and several hundred times by the Library of Congress Website.  Dateline is JURIST's student commentary service, and we seek original opinion-based articles from law students regarding their personal and work experiences in a field of law.

JURIST is looking for student commentary pieces covering the recent lawsuit over the state of Oklahoma's lethal injection drugs.  You can see our brief coverage of the case here: http://jurist.org/paperchase/2014/04/oklahoma-high-court-stays-executions-over-lethal-injection-drug-challenge.php.

We are looking for student op-eds exploring the legal issues surrounding the legality of the drugs and the overarching issues of capital punishment. If you could please extend this invitation to write to the any law students that you think would be interested in contributing it would be greatly appreciated.

Our authors, including our academic and professional authors, generally list their JURIST articles on their resumes along with journal, law review, and other publications.

Articles are approximately 1200 words in length and do not require Bluebook citations. For examples of recent articles please see: http://jurist.org/dateline/

I will give extra credit to any and every student who submits and op-ed, and double extra credit if you get your op-ed published!

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?

Lots of lethal injection doings

As detailed at my main blog, there's been lots of lethal injection developments since our last class meeting.  Here are links to some of my coverage at SL&P:

• Florida LI commission report
• Florida gov seeks national LI review

• Ohio lethal injection litigation going forward
• Now what for Ohio's death penalty?

I plan to recap some of these developments at the start of our Wednesday class, but then we will turn to the discussion of federal death penalty issues (materials on their way).

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

Providing a fitting capstone to our discussions of execution methods and the role of doctors, today the Florida's Commission on Administration of Lethal Injection finalized its recommendations today on improving the state's lethal injection process.   I cannot yet find the Commission's report on line yet, but this article details that the report, which comes from a group created by out-going Governor Jeb Bush back in December after a botched execution, has more than a dozen recommendations. 

By my lights, it would seem that some of the recommendations almost require the involvement of doctors in the execution process.  Consider these recommendations (as reported by the press):

• Medically examine the inmate one week before the execution and determine the best method to achieve IV access.
• Don't move the inmate after IV access is achieved and take other steps to make sure IV access is maintained throughout the entire execution.
• Improve training, including holding periodic training exercises for all execution team members in which they practice possible contingencies.

Would the AMA's policy against physician involvement in executions allow doctors to play any role in these activities?