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.

Should Mike Davis, the 10TV weatherman, face only state charges for sending and receiving "significant" amount of child pornography?

I had no idea during our discussion on Wednesday of federal sentencing ranges for child pornography offenses that there would be a high-profile arrest in our own neighborhood on state charges involving this behavior just the next day.  This local article, headlined "Ohio TV station's chief meteorologist charged with child pornography," provides these details (with some highlighted in bold):

A meteorologist for an Ohio television station has been arrested and charged with pandering sexually oriented matter involving a minor.  Mike Davis, chief meteorologist for WBNS-TV in Columbus, Ohio, was booked into the Franklin County Jail on Thursday for the second-degree felony.

The alleged offense occurred on Aug. 5, 2019, according to Franklin County Municipal Court Records.  The records allege that Davis knowingly advertised for sale or dissemination an image of a young girl participating or engaging in sexual activity, according to WCMH-TV.

Franklin County Sheriff Dallas Baldwin said in a news conference that two weeks ago, the Internet Crimes Against Children (ICAC) task force received a tip that Davis had allegedly sent and received a “significant” amount of child pornography, the station reported. “This establishes a pattern of behavior.  One week ago that information was confirmed and more evidence was gathered,” Baldwin said.

ICAC executed search warrants Thursday morning at multiple locations that included Davis’ home and the WBNS-TV studios, WCMH-TV reported. ICAC detectives arrested Davis at his home Thursday morning.

“These are kids that are clearly being exploited for sexual appetite,” Chief Deputy Rick Minerd said.

“There’s no question that it was him versus someone else living in that home?” a WCMH-TV reported asked Minerd. “Yes,” Minerd said.

The Ohio Revised Code provision, § 2907.322 Pandering sexually oriented matter involving a minor or impaired person, which serves as the basis for the charge against Davis, sets forth a second-degree felony which means the the sentencing range under Ohio law is "an indefinite prison term with a stated minimum term selected by the court of two, three, four, five, six, seven, or eight years and a maximum term [that is "plus fifty per cent of that term"].  In other words, if convicted under Ohio law for only this single charge, Davis could get as low as 2-3 years in state prison or as high as 8-12 years in state prison.  If he were subject to multiple charges, which certainly seems possible given the report of a “significant” amount of child pornography, the sentencing possibilities could expand.

And, as we discussed in class, there are complicated federal criminal statutes, particularly 18 U.S.C. § 2252 and 18 U.S.C. § 2252A, under which Davis might be charged in federal court for this conduct. (And the Supreme Court confirmed this past Term that a defendant can be charge in two distinct jurisdictions based on the same criminal conduct.)  This chapter of a lengthy US Sentencing Commission report on child porn offense provides (just some of) the statutory ranges for this conduct under federal law:

Upon conviction of any [child porn] production offenses, an offender faces a mandatory minimum term of 15 years of imprisonment and a maximum of 30 years...  Advertising child pornography carries a mandatory minimum penalty of 15 years of imprisonment....

The offenses of receipt (or solicitation), transportation (including mailing or shipping), distribution, and possession with the intent to distribute or sell child pornography each carry a mandatory minimum term of five years of imprisonment and a maximum term of 20 years...

The current statutory range of imprisonment for possession is zero to ten years of imprisonment if an offender possessed child pornography depicting a minor 12 years of age or older who was not then prepubescent and zero to 20 years of imprisonment if an offender possessed child pornography depicting a prepubescent minor or a minor under 12 years of age.

I am not concerned that you know all of these particulars, but I am eager for you to see (a) how complicated this can get, and (b) how consequential the decision to charge in state versus federal court can sometimes prove to be.  Last but not least, I am already eager to hear any early musings about an appropriate sentence for Mike Davis.

Westerville police shooting creates not only Ohio capital punishment case, but also interesting potential federal sentencing case

We discussed in class today some of the dynamics sure to surround a possible capital prosecution of Quentin Smith, the suspect charged with killing two Westerville police officers over the weekend.  Against that backdrop, I found notable this new local article headlined "The death penalty: Is it cheaper? Why does it take so long from sentencing to execution?". Here are some other questions this article poses (click through to see the answers given):

Q: What does a death penalty indictment mean?

Q: Will the court process be different in a death penalty case?

Q: A death sentence means the case will be cheaper because the defendant dies, right?

Q: How long after a death sentence being imposed will a person be executed?

Q: Does the jury or the judge decide if a person gets a death sentence?

Also notable, and likely to become a topic for discussion later in our class, is news of a federal prosecution resulting from this shooting.  This Columbus Dispatch article, headlined "Northeast Ohio man charged with buying gun used to kill Westerville officers," provides these basics:

A Cleveland-area man was scheduled to make his initial appearance in federal court in Columbus Monday, charged with providing a Glock semi-automatic handgun to the convicted felon accused of killing two Westerville police officers over the weekend.

Gerald A. Lawson III, 30, of Warrensville Heights, was taken into custody by federal agents just before noon at his home and faces up to 10 years in prison if convicted, according to a release from the U.S. attorney for the Southern District of Ohio.  Lawson was to appear before U.S. Magistrate Judge Kimberly A. Jolson Monday afternoon in Columbus.

His arrest came two days after Quentin L. Smith allegedly killed veteran Westerville officers Anthony Morelli and Eric Joering, who were responding to a 911 hangup call from a Cross Wind Drive residence. A criminal complaint says Smith retrieved a handgun after officers entered the residence and shot both. Joering died at the scene; Morelli died a short time later at Ohio State University’s Wexner Medical Center....

Investigators say Smith provided money and an extra $100 payment to Lawson to purchase the firearm and that Lawson knew that Smith was a convicted felon. A trace determined the gun was bought in Broadview Heights, a Cleveland suburb.

The two are longtime friends, with several photos of the two together posted online on one of Lawson’s social media accounts, according to a release.

At the risk of asking you to pre-judge the matter, I encourage you to think about what kind of punishment you might be inclined to impose upon Gerald A. Lawson III for illegally acquiring a gun for his friend that his friend used to kill two police officers.

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.

Two fascinating new Ohio "who" sex offense sentencing stories

As mentioned in class, this week and next our class discussions will migrate from the basics of modern capital sentencing to the basics of modern non-capital sentencing.  And, as the Coker and Kennedy cases highlight, all modern capital cases now involve only the crime of murder even though any number of sex offenses often lead legislatures to make special (and severe) sentencing laws and rules.  On the topic of sex offenses, and with unique aspects of the "who" story in the mix, I recommend everyone check out these two new stories from my main blog concerns sentencing developments in our own state of Ohio:

Ohio Supreme Court finds multiple constitution flaws in mandatory sex offender sentencing process

District Judge, to chagrin of feds, relies on jury poll to give minimum sentence to child porn downloader

Imaginging a (federal and mandatory?) death penalty only for mass shooters who kill more than five persons

A helpful student alerted me to this notable accounting of mass shooting in 2014 in the United States.  Though I will not vouch for all the data, I still think it is notable (and not all that surprising) that this internet accounting of mass shootings lists 283 mass shootings in the US (roughly 5 every week of the year), and yet only 11 of these mass shootings involve five or more deaths (less than one per month on average).

In addition to finding these data fascinating, I continue to encourage folks to cull through this list of the 53 men  who have been executed in Ohio in the modern era or this latest report from the Ohio Attorney General about the 140+ men on Ohio's death row to see how my proposed reform, if applied retroactively, would impact those past cases. 

Link to Ohio Supreme Court oral argument in Ohio v. Moore

This morning (Feb 4, 2015), the Ohio Supreme Court heard argument in Ohio v. Moore to examine whether the SCOTUS 2010 Graham ruling declaring unconstitutional LWOP for juvenile non-homicide offenses should apply to a lengthy term-of-year sentence. The Justices asked many questions of both sides, and I believe only one of the seven Justices failed to ask at least one question.

The argument lasted for approximately an hour, and here is a link to the oral argument.  I highly recommend all students interested in Eighth Amendment issues take the time to watch these proceedings.

I suspect and fear we will not get a ruling from the Court before the end of the semester (but maybe that will be a kind of good news allowing me to ask a take-home exam question about the case).

Major developments on Eighth Amendment juve sentencing fronts

Students should recall the class-preview post in which I noted two notable on-going cases concerning the Supreme Court's modern Eighth Amendment jurisprudence limiting the imposition of life without parole sentences on juvenile offenders.  The end of last week and this coming week involve developments on this front:

• Late last week, as reported in this post from my main blog, the petitioner at the center of the case SCOTUS took up to resolve whether its 2012 Miller ruling should be applied retroactively was released from prison.  In addition to providing yet another interesting story about "who sentences," the release of George Toca means that SCOTUS will need to take up a new case to resolve whether its Eighth Amendment ruling declaring unconstitutional mandatory life without parole (LWOP) for juvenile murderers should be applied retroactively.

• The Ohio Supreme Court will hear oral argument this week in Ohio v. Moore to examine whether the SCOTUS 2010 Graham ruling declaring unconstitutional LWOP for juvenile non-homicide offenses should apply to a lengthy term-of-year sentence.  Helpfully, this post at Legally Speaking Ohio provides an effective argument preview, starting with the basic fact that "Brandon Moore was sentenced to a 112-year prison term for convictions in 2002 on three counts of rape, three counts of complicity to rape, three counts of aggravated robbery, kidnapping, and firearm offenses, all arising from offenses he committed when he was fifteen years old."

I am planning to attend the oral argument, which starts at 9am on Wednesday February 4, at the Supreme Court of Ohio. Folks interested in this case can read all briefs submitted via this Ohio Supreme Court link, including this short amicus brief that I helped author for the National Association of Criminal Defense Lawyers.

Some background and basics on capital punishment history and practices in Ohio and US

We could easily spend months discussing the history and modern specifics of the death penalty in specific jurisdictions like Ohio or the US.  I will sometime reference this history and modern practices in class over the next few weeks, but here are some links of note concerning both jurisdictions to provide everyone with a (low-stress, high-learning) chance to discover a lot more on these topics:

Links with background on Ohio's history and practices in the administration of the death penalty 

• From the Ohio Department of Rehabilitation and Corrections
• From the Ohio section of website of Death Penalty Information Center
• American Bar Association Ohio Death Penalty Assessment
• Ohio Attorney General's 2012 Capital Crimes Annual Report
• Ohio Revised Code Section 2929.04: Death penalty or imprisonment - aggravating and mitigating factors

Links with background on US history and practices in the administration of the death penalty 

• Justice Department 2000 Survey/Review of Federal Death Penalty 
• From the federal section of website of Death Penalty Information Center
• Congressional Research Service 2005 Overiew Report on Federal Death Penalty
• Title 18 United States Code Section 3592: Mitigating and Aggravating Factors to be Considered in Determining whether a Sentence of Death is Justified

Eastern State Penitentiary and other historic prisons

This post provides a space for discussion of today's video about Eastern State Penitentiary and more generally about prisons as out modern default sentencing "output."  If you are interested in learning more about Eastern State, check out this terrific website.  

In addition, there are lots of other (in)famous prisons that tell stories about not only American crime and punishment, but also stories about America.  A number of notable Ohio-centric stories to be found within in this history, as documented by a relatively recent book entitled "Central Ohio's Historic Prisons."  Here is a snippet from the book:

With the opening of the Ohio State Reformatory in 1896, the state legislature had put in place "the most complete prison system, in theory, which exists in the United States."  The reformatory joined the Ohio Penitentiary and the Boys Industrial School, also central-Ohio institutions, to form the first instance of "graded prisons; with the reform farm on one side of the new prison, for juvenile offenders, and the penitentiary on the other, for all the more hardened and incorrigible class."  However, even as the concept was being replicated throughout the country, the staffs of the institutions were faced with the day-to-day struggle of actually making the system work.

Excerpts from this book can be accessed at this link.  The Ohio State Reformatory referenced in this passage is located in Mansfield, and is now an historic site (and also where the great movie The Shawshank Redemption was shot).  I could be readily talked into a class field-trip to this site (for extra credit, of course, and we can skip "Glamour in the Slammer").  Even without a trip north, I urge everyone to take a virtual tour via this huge photo gallery.

Especially if you are looking for some weekend web-surfing fun, check out these additional links to some good sites about some of the United States' most famous or most interesting prisons and jails:

• Alcatraz
• Missouri State Penitentiary
• Rotary Jail Museum
• West Virginia Penitentiary 

Ohio sentencing news and resources

Intriguingly, there has been a good bit of Ohio sentencing and punishment coverage in the Columbus Dispatch during our break this week, and I have linked some of the biggest stories via this post on my main blog.  In addition, I encourage everyone interesting in Ohio non-capital sentencing law and policy to look around the website of the Ohio Criminal Sentencing Commission.  

There are lots of notable (and intricate) materials to be found on the "Resources" sections of the OCSC website  here and here.  And I will likely assign for required or recommended reading later this month these particular OCSC documents:

• A Decade of Sentencing Reform (especially through p. 25)
• Prison Crowding: The Long View, With Suggestions
• H.B. 86 Summary: 2011 Changes to Criminal & Juvenile Law

On the current state (and possible future) of Ohio's modern capital punishment experiences

One (of many) interesting and valuable components of Ohio's modern death penalty system is the fact that the Ohio General Assembly has, by statute, required the Ohio Attorney General to produce an annual report on capital punishment regarding individuals who have been sentenced to death since Oct. 19, 1981.  The last four such annual reports are all available on-line via this webpage, and I highly encourage students to at least review quickly the most recent of these reports report (which is the 2010 Capital Crimes Report released in April 2011 available at this link).

The latest annual report will not only help you figure out how Ted Kaczynski might fare under Ohio's laws (see pp. 4-7 in the 2010 report), but also highlights the many fora for review of Ohio death sentences (see pp. 8-12 in the 2010 report, where the chart reprinted here appears at the end).  The 2010 report also has an extended discussion of DNA testing procedures and results for those sentenced to death at pp. 15-22.  The report also provides this (now slightly dated) statistics about the application of the modern Ohio death penalty:

Since 1981, Ohio has issued a total of 310 death sentences....

As of [the end of 2010], a total of 41 inmates have been executed under Ohio’s current law....

[And] a total of 14 inmates received a commutation of his death sentence to a sentence less than the death penalty....

[And] a total of 20 inmates died prior to imposition of the death penalty. This includes inmates who died of natural death and suicide....

[And] a total of 8 inmates were found ineligible for the death penalty dueto mental retardation (aka “Atkins” claims)....

[And] a total of 7 death sentences were vacated and remanded to trial courts for re-sentencing, which could result in imposition of the death penalty again ... [and] there was 1 case pending retrial....

[And] 64 death sentences were removed as a result of some form of judicial action beyond the cases already mentioned....

[And] a total of 155 death sentences remained active, including those currently pending in state and federal court [including] seven individuals [who] received a death sentence and were added to death row [in 2010].

As was true following my prior national data dump on executions in this post, I welcome and encourage comments on what lessons we might take away from this Ohio modern death penalty data and history.  Also, I encourage early thoughts about whether these data should suggest a particular agenda for the Ohio Chief Justice's newly form Joint Task Force to Review the Administration of Ohio’s Death Penalty (discussed in this press release and constuting a partnership between the Supreme Court of Ohio and the Ohio State Bar Association “to ensure that Ohio’s death penalty is administered in the most fair, efficient, and judicious manner possible.”)

Some local stories and posts of note

Especially in light of some recent and past class discussions, everyone might be interested in these two recent posts from my main blog about Ohio happenings:

• Ohio's death row getting smaller (though new AG still laments pace of appeals)

• Ohio ACLU writes to local lawmakers and prosecutors about sexting

Also, students already looking for a different (and fresh) perspective on federal sentencing discretion and the limits of law might want to check out the article references in this post: Deep thoughts about post-Booker sentencing and sources of law.

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.

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

Notable local capital sentencing analysis

Sunday's Columbus Dispatch has this intriguing article entitled "Death sentences rare for local juries: Murderers convicted in Franklin County more likely to get life in prison."  In addition to the article, the Dispatch has this fascinating review "of the last 100 aggravated murder indictments [in Franklin County which] shows that juries are becoming more reluctant to impose the death penalty."

The power of the personal

I was certainly moved by the stories of Ohio exonerees Gary Beeman and Dale Johnston, and I trust everyone else was, too.  If folks want to express reactions or other thoughts, feel free to use the comments.  (My own first thought was that I should have had the good sense to formally invite Governor Strickland and Attorney General Dann to attend.)

Both Dale and Gary gave me their contact information, which they encouraged me to share with students.  In addition, Julie Przybysz gave me a binder with lots of information from Ohioians to Stop Executions (OTSE) that I am happy to copy for anyone interested.

Interesting Ohio developments

I predicted in class yesterday that this weekend might bring some interesting Ohio capital action, but our new Governor did not even waited for the weekend.  As discussed here, Gov. Strickland late Friday signed warrants that delay the executions of three Death Row inmates who were scheduled to receive lethal injections in January or February. 

The Governor's official statement and the full text of the warrants can be found here.  Here's the money paragraph:

During my tenure as Governor, before I allow an execution to proceed, my staff and I will have conducted a comprehensive, thorough and searching review of the case to determine if any exercise of executive clemency is appropriate. The brief time I have been Governor has not allowed me sufficient time to conduct that type of review and there is not sufficient time before these scheduled executions to complete that type of review.

Of course, the place to go to get all the details (and the likely storm of new coverage) is the Ohio Death Penalty Information blog.  I will be very interested to see whether this decision is applauded or criticized by other state politicians and the media throughout the state.