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Inconsistency and disproportionality in sentencing

I'm not going to do the roundup this week -- or next; reason why on Monday -- because I wanted to note a recent habeas decision out of the US 6th Circuit, Getsy v. Mitchell.  The case results from a contract killing that occurred back in 1995, when John Santine hired three people -- Jason Getsy, Richard McNulty, and Ben Hudach -- to kill a business rival.  (They wound up only wounding the rival, but killing his wife.)  Santine was tried for aggravated and murder for hire, and the jury convicted him of the first but acquitted of the second; he wound up with life in prison.  So did McNulty and Hudach when they pled guilty.  Getsy, who was 19 at the time, went to trial, was convicted, and was sentenced to death.  The Ohio Supreme Court expressed some misgivings on the disparity in the sentencing, but unanimously affirmed the death penalty.

The district court had similarly dismissed Getsy's habeas petition, but the 6th Circuit reversed by a 2-1 vote.  It found first that imposing the death sentence upon Getsy, while the more culpable Santine escaped with a life sentence, was disproportionate.  But the court also found that the two verdicts -- the one acquitting Santine of murder for hire, and the one convicting Getsy for committing the murder -- were inconsistent.

It's long been the law that consistent verdicts, as between separate trials, was not required; for example, there's nothing wrong with one jury convicting an aider and abettor while another acquits the principal.  The 6th Circuit, though, drew on a line of cases which have held that in crimes which necessarily involve two people -- conspiracy, for example -- acquitting one and convicting the other is not a permissible result.

There are some flaws in that argument, as the dissent points out, and it may be that the court was simply looking for a reason to vacate a deeply troubling death sentence.  In fact, the Supreme Court's review of the mitigation should be disturbing to anyone other than the most rabid advocate of capital punishment:  Getsby apparently had no prior criminal record, and clearly was afraid of Santine.  If the death penalty is indeed to be reserved for "the worst of the worst," it's hard to see how Getsby makes that cut.  But the Circuit Court's opinion's is definitely worth a look, because it might have some ramifications beyond capital punishment law.

And, as long as you're in the mood for reading, you might want to check out the 125-page opus on Federal sentencing from Judge Young of the District of Massachusetts.  Back in June of 2004, Young wrote a 174-page opinion explaining why the Federal sentencing guidelines were unconstitutional.  The next week, the Supreme Court decided Blakely v. Washington, and another six months later came to the same conclusion in Booker that Judge Young had.  Young begins his more recent opinion by noting

For seventeen years federal courts had been sentencing offenders unconstitutionally.  Think about that.  The human cost is incalculable -- thousands of Americans languish in prison under sentences that today are unconstitutional.  The institutional costs are equally enormous -- for seventeen years the American jury was disparaged and disregarded in derogation of its constitutional function; a generation of federal trial judges has lost track of certain core values of an independent judiciary because they have been brought up in a sentencing system that strips the words "burden of proof", "evidence", and "facts" of genuine meaning; and the vulnerability of our fair and impartial federal trial court system to attack from the political branches of our government has been exposed as never before in our history.

Young goes on to note what many other observers have concluded:  that post-Booker sentencing is not much different from what it was before.  There's a lot of citations and a lot of analysis, and you may want to wait until it comes out on video, but if you do Federal trial work, it's worth a look.

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