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Reforms in capital punishment

Back in September of 2011, Chief justice O'Connor and former Ohio State Bar Association President Carol Marx appointed a task force, consisting of 22 judges, lawyers, and "policymakers," to study Ohio's death penalty and make recommendations.  While I normally subscribe to the French philosopher's observation that a committee is an alleyway down which ideas are lured to be strangled, that certainly can't be said for the Task Force, which last week issued its report, with no fewer than 56 recommendations on how to improve the way the State goes about killing people.  (Oddly, making sure that those people didn't writhe around on the gurney for nearly half an hour before succumbing didn't make the list.)

The Ohio Prosecutor's Association has already sounded the alarm, contending that adoption of the recommendations would undermine the very foundations of the public, or at least make it almost impossible to impose the death penalty in Ohio. 

It's going to make it a damned bit harder, that's for sure.

The recommendations do that first by limiting the number of crimes punishable by death:  it removes kidnapping, rape, aggravated arson, aggravated robbery, and aggravated burglary as aggravating circumstances.  That's somewhat understandable:  the not-unusual scenario for that is a couple of guys robbing a convenient store, and one of them gets panicky and waxes the clerk.  But juries just don't buy that as a capital crime; when those specifications are charged, it results in a death sentence only seven percent of the time.

Second, the Task Force recommendations impose evidentiary restrictions on capital cases:  a death sentence can't be considered or imposed unless the State has DNA or other biological evidence, a videotaped confession, or a video that "conclusively links the defendant to the murder."  (There's also a throwaway about "other like factors as determined by the Ohio General Assembly.") 

And a death sentence can't be imposed on the uncorroborated testimony of a jailhouse snitch.  Although snitch testimony is widely recognized as notoriously unreliable (I wrote about it here, below the fold), I'm not sure this really addresses the problem, given appellate courts' wildly expansive definition of what constitutes "corroboration."  I can't imagine a capital case which is based solely on a snitch's testimony, and that's about all this recommendation would forbid.

The Task Force also recommends that the people subject to a death sentence be reduced:  legislation should be enacted "which excludes from eligibility for the death penalty defendants who suffered from 'serious mental illness.'"  It's left up to the legislature to define what a "serious mental illness" is, and that should be fun, no?  In the same fashion, the death sentence couldn't be imposed on those suffering from a serious mental illness.  That's more likely to reduce the number of executions:  if you're not crazy after spending twenty years on death row, you're just not trying hard enough.

Beyond that, there's a lot of interesting stuff in the remaining 51 recommendations.  A number of them deal with improving the effectiveness of defense attorneys in capital trials, by making the requirements more rigorous.  Many are addressed to the issue of race.  One of the most contentious is Recommendation 34:

To address cross jurisdictional racial disparity, it is recommended that Ohio create a death penalty charging committee at the Ohio Attorney General's Office. It is recommended that the committee be made up of former county prosecutors, appointed by the Governor, and members of the Ohio Attorney General's staff. County prosecutors would submit cases they want to charge with death as a potential punishment. The Attorney General's office would approve or disapprove of the charges paying particular attention to the race of the victim(s) and defendant(s).

I'm guessing that the prospect of having to shuffle down to Columbus to convince the AG you're not a bigot, just so that you can seek a death sentence, isn't one that county prosecutors find enthralling. 

So what's going to happen?  The recommendations to limit prosecutor's discretion, I think, are dead in the water.  On the other side, taking steps to improve the quality of defense counsel is a sure bet, because it doesn't require the legislature to do anything, other than provide funding; the Supreme Court can enact rules to accomplish that.

Everything else is up in the air, and I'm not sure where it's going to come down.  But from my observation of politics, nobody ever lost an election by being hard on crime, so I'm not optimistic.


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