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 »


Thursday Roundup

Black and white.  Well, I guess that will teach a lesson to those who would sunder New York City by selling untaxed cigarettes.

Four NYPD police officers approached Eric Garner on July 17 of this year and accused him of doing just that.  He denied it, and when the cops sought to arrest him, swatted their arms away.  Officer Daniel Pantaleo put him in a chokehold -- a technique that's banned by the Police Department -- and the four pushed him to the ground.  On the video, Garner can be heard saying, "I can't breathe."  Nine times he said that.  He went into cardiac arrest on the way to the hospital, and died.

Yesterday, a grand jury chose not to indict Pantaleo.  Just like the Ferguson grand jury chose not to indict Darren Wilson in the death of Michael Brown.  But while the decision on Wilson was defensible, with debate about it falling along ideological lines, even conservatives had a hard time with the failure to charge Pantaleo with anything.    

It remains to be seen what a grand jury will do with Timothy Loehmann, who shot and killed 12-year-old Tamir Rice the Saturday before Thanksgiving.  A couple of days after the shooting, I got a call from a very good friend of mine, a black woman, who wanted to write a letter to the paper supporting Loehmann.  I suggested she wait until more evidence came out.  Probably a good thing.  There's a video of Rice's shooting, too, which shows the cop car pulling up within feet of Rice, him fumbling at his waist for what turned out to be a toy gun, and Loehmann shooting him within two seconds of getting out of the car.  Even police experts found the tactics of the officers questionable, and yesterday it came out that Loehmann had been forced to resign from his previous job as a police officer for the City of Independence because he was found unfit.

We can endlessly debate the causes of this, from racism (a little) to the militarization of the police (a lot) to the overregulation of American life, the latter aspect aptly summed up by a twitter from National Review writer Charles C.W. Cooke:  "Seriously, can you imagine what Sam Fucking Adams would have said at the news that a man had been killed over cigarette taxes."  But technology may provide the solution.  President Obama proposed spending $50 million for body cameras for police officers, and the experience in Rialto, California, may show that to be money well spent:  the year after the city had police officers don body cameras, incidents of officers' use of force declined by 60%, and citizen complaints against police fell 88%.  (H/t to Simple Justice.)

And if use of deadly force incidents decline, it might actually save the city money, not only in payouts to the families, but to the police officers themselves.  After Baltimore Officer Gregory Bragg shot and killed an unarmed black man in 2012, he was awarded $30,000 in workers compensation benefits for the psychological stress he endured as a result of the shooting. 

Rethinking LWOP.  Yesterday I talked about the decline in executions and death sentences, which is in no small part attributable to the adoption of life without parole as an alternative penalty.  That adoption, in turn, has been the result of efforts by various anti-capital punishment groups, like the ACLU, which touts the benefits of the penalty, especially in terms of cost savings.

But there's a downside to that.  First, once you introduce life without parole as a possible sentence, it gets extended far beyond murder.  In fact, there are over 3,200 prisoners in America serving LWOP sentences for non-violent offenses.  Many were sentenced under state recividist laws, which impose that penalty for third or fourth offenses, regardless of how minor; for shoplifting a $159 jacket in 1996, Timothy Jackson will die in a Louisiana prison, and others have been sentenced to that fate for possession of a crack pipe, or acting as a go-between in a sale of $10 worth of marijuana to an undercover police officer.

The second problem is that, as the courts have long noted, the death penalty is a qualitatively different, as inadvertently pointed out by the ACLU's lauding of it as an alternative:

Because death is different and mistakes cannot be corrected, a death sentence results in years of mandatory appeals that often result in reversal.  In a sample of 350 death sentences, 118, or nearly one-third, were reversed in part or in whole.  Further, nearly 60 percent of the cases in this sample were still in various stages of appeals as of 2002. For each of the last three executions in California, more than 25 years had been spent in appeals before the executions finally occurred. The current average for appeals is 17 years--and getting longer every day.

Unlike death penalty cases, however, LWOP sentences receive no special consideration on appeal, which limits the possibility they will be reduced or reversed. A person sentenced to die in prison receives only one automatic appeal, not several, and is not provided any court-appointed attorneys after this appeal is complete, usually within two years of the initial sentence.

That's my emphasis, for a reason:  while the Death Penalty Information Center keeps a list of those initially sentenced to death but later exonerated, nobody's keeping a list of the people initially sentenced to LWOP -- or any other sentence, for that matter -- only to have their innocence later established.  Because nobody's spending the resources to establish their innocence, at least to anything approaching the degree with which we examine a death sentence.


Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses