Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


A rush to death

Dennis McGuire was the last man to be executed in Ohio.  The manner of his demise generated debate.  McGuire was a guinea pig for the new drug Ohio uses to kill people, and things didn't go well:  according to witnesses, McGuire appeared to gasp and convulse for over 20 minutes before succumbing.   To the dwindling band of death penalty supporters, the problem was not what happened on the gurney, it was McGuire's lengthy route to it:  he'd committed the crime for which he was executed a full quarter century before.

Not that we haven't tried to shorten that.  Back in the 1994, Ohio passed the Death Penalty Appeals Amendment to the state constitution, which mandated that all death penalty appeals go directly to the Ohio Supreme Court, bypassing the district court of appeals.  Two years later, Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA), greatly limiting the availability of the "Great Writ" of habeas corpus, in an attempt to stop federal courts from putting up roadblocks to execution. 

And so we come to the oral argument two weeks ago in the oral argument in the Supreme Court in Hall v. Florida.  

The case concerned execution of the mentally retarded, which the Supreme Court outlawed in 2002; the issue in Hall was just how retarded you had to be to avoid being given the opportunity to select your last meal.  (Speaking of which, Bill Clinton left the campaign trail in 1992 to return to Arkansas and sign a death warrant for Ricky Ray Rector, who was so mentally unaware that he told the guards that he wanted to save the piece of pecan pie, the dessert for his last meal, "for later.")

Florida had drawn a bright line.  Back in high school, getting a 70 on a test meant you passed, however ingloriously.  To Florida, having an IQ of 70 is enough to let the state execute you.

That was overshadowed, though, by the fact that the killing which had earned Hall a death sentence occurred way back in 1978.  "How has it gone on this long?" Scalia inquired, exasperated.  Kennedy pointed out that "the last ten people Florida has executed have spent an average of 24.9 years on death row," asked whether that was "consistent with the purposes of the death penalty," and "consistent with sound administration of the justice system," and wondered if the Florida attorney general had suggested to the state legislature "any measures, any provisions, any statutes, to expedite the consideration these cases." 

The dismay is understandable.  Justice delayed is justice denied, and all that.  But there's a larger context here.

The arguments for capital punishment have fallen by the way, one by one.  No, it's not reserved for the worst of the worst, but for the unluckiest of the unlucky.  The need to protect society was resolved with life without parole sentences.  Punishment and retribution sound so Biblical.

So what's left is deterrence, and that one gets slapped by the facts.  In the past 20 years, the number of death sentences annually imposed has fallen from 320 to 70.  If the death penalty were indeed a deterrent, we would expect that the homicide would increase as the number of sentences declined.  It was just the reverse:  during that same period, the homicide rate dropped by more than half. 

But supporters insist that's because the death penalty is used too hesitantly.  Most criminals are not interested in the Long Game; what might happen a quarter-century from now is not comprehensible for someone whose plans have rarely extended into the next week.  But if justice were swift and sure, if a criminal knew he would be executed within, say, five years, that might do the trick.

It would also have killed Glenn Ford.  He was sentenced to death for killing a man in Louisiana in 1984.  A week ago, he was released from prison, prosecutors having found "credible evidence" that Ford "was neither present at, nor a participant in, the robbery and murder" of the victim.  Turns out that one of the co-defendants who testified against Ford was the actual gunman. 

That's not atypical.  Of the 45 people convicted of a capital crime and later exonerated, only 9 spent less than a decade in prison before they were freed.

Things change much more rapidly than they used to.  It took blacks almost a century to gain real freedom.  Ten years ago, the support for gay marriage and marijuana legalization was minimal; thirteen states overwhelmingly passed amendments banning gay marriage, and polls showed two-thirds of the public was opposed to legalizing marijuana.  Now, those positions have reversed.  

Support for the death penalty is still strong; the latest Gallup poll shows that, by 60%-38%, the public still favors it.  But that 22-point margin was down from a 64-point margin two decades ago.

I now think that I will see the death penalty abolished in my lifetime.  And not with a bang, but a whimper.


Recent Entries

  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions
  • August 7, 2017
    Two on allied offenses
    A look at the 8th District's latest decisions on allied offenses
  • August 3, 2017
    Thursday Ruminations
    Computerized sentencing, lawyer ads, and songs from the past
  • August 1, 2017
    8th District Roundup
    One thing that doing this blog has taught me is how much the law changes. The US Supreme Court's decisions in Blakely v. Washington and Crawford v. Washington have dramatically altered the right to jury trial and confrontation, respectively. The...
  • July 28, 2017
    Friday Roundup
    The better part of discretion
  • July 26, 2017
    Supreme Court Recap - 2016 Term
    My annual review of the Supreme Court decisions from the past term
  • July 24, 2017
    What's Up in the 8th
    Some things we knew, some things we didn't
  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture