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Tinkering with the machinery of death

Despite the generally-accepted observation that a committee is a dark alley down which ideas are lured to be strangled, the penchant for addressing any problem by throwing some people in room and hoping they can resolve it is irresistible.  That's what we do to figure out how to solve Social Security's funding problems, reduce the Federal debt, close military bases, and fix the death penalty.

Hold it, what was that last one?  Yep.  Over the past several years, the American Bar Assocation has been evaluating the death penalty systems in each state.  Their evaluation of Ohio's was completed in 2007, and resulted in a 495-page report finding fault in a variety of areas.  After chewing on that for four years, the Ohio Supreme Court established a "task force" to review the administration of the state's death penalty last November.

Judging from the nature of the problem -- you don't come up with a 495-page report if there's just some fine tuning that's necessary -- and from the two meetings that have been held so far, nobody should get their hopes up that Ohio's system for killing people is going to become a model for others to emulate.

The task force is charged with the job of evaluating the ABA report and assessing whether Ohio's death penalty "is administered in the most fair and most fair and judicial manner possible."  Assuming the panel answers that last question in the negative, an effort which should require no more than four nanoseconds of conscious deliberation, the next issue is what to do about it.  Notably absent from the inquiry is the most obvious one:  the task force is specifically instructed "not to review or report on the issue of whether Ohio should or should not have the death penalty."

So with hope beaming down on them and the winds of change at their backs, the 22 members of the task force, drawn from the bench, academia, the legislature, and both the prosecutorial and defense sides of the bar, sat down last November to begin their work.  Some of the ABA's criticisms have been resolved by time; the lack of preservation of biological evidence, for example, was remedied by SB 77 in 2010, and the new open discovery provisions of the criminal rules have substantially addressed several other problems noted by the ABA report.  Discussion ranged over a wide variety of other topics, such as training and funding of defense counsel, costs of imposing the death penalty, data collection, and racial disparity in sentencing.  The result of the meeting, not without irony, was the designation of four subcommittees to look into all that.

But this is one case where the devil isn't in the details; just about everybody recognizes that the real problem is in the arbitrariness of the application of the ultimate penalty.  As the ABA report noted, prosecutors have the sole and unfettered discretion in deciding whether to seek a death sentence, and as might be expected, standards vary widely:  some prosecutors indict on capital specifications any time a crime meets the criteria, others save it for "the worst of the worst," and still others use it as a bargaining chip.  One way of resolving that disparity was presented at the task force's second meeting on Thursday by it chairman, former appellate judge James Brogan, who suggested that the decision of whether to pursue a death sentence should be made by a statewide commission, rather than by county prosecutors, similar to how other states, like Tennessee, handle the issue.

How far this is going is open to question; state Sen. Bill Seitz, who's on the task force and also spearheaded the efforts to get HB 86 passed, helpfully labeled it "not necessarily a crazy idea."  And good luck with prosecutors like Joe Deters of Cincinnati's Hamilton County, which hands out capital indictments like takeout orders from a Chinese restaurant, to relinquish any authority he has over those decisions.  In fact, Deters used the meeting to present a set of proposals, including greater use of victim impact statements and requiring only 10 of the 12 jurors to impose capital punishment, apparently laboring under the misapprehension that the task force's mission included making it easier to obtain death sentences.

The big problem with resolving the issue of arbitrariness, though, is that a lot of it starts at the top.  Since 1995, all capital cases have to be appealed directly to the Supreme Court.  Part of the court's charge is to independently reweigh the aggravating and mitigating circumstances, and another is to "consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases."  On only four occasions since Ohio's current capital sentencing law was enacted in 1981, and only once since 1991, has the court found that the mitigating circumstances outweighed the aggravating factors.  The record on disproportionality review is even worse:  not once in its review of over 250 capital cases has the court vacated a death penalty on that basis.

That's largely because of limitations on review:  the court considers only other cases in which the death penalty was imposed.  In other words, if the defendant kills his girlfriend and their child, and if there's one other case where a death penalty was imposed when a defendant killed his girlfriend and their child, that's enough to classify the penalty as "proportionate."  If fifty people killed their girlfriends and their children without getting indicted for capital murder, and fifty more were indicted but avoided the penalty, that's not considered.

Remedying that might go at least some way toward resolving the problem of arbitrariness.  I'm not sure I see the commission telling the court which appointed it that the court is part of the problem, not the solution.

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