Two years ago, in response to questions about lack of uniformity in carrying out the death penalty, Ohio Supreme Court Chief Justice Maureen O’Connor formed a task force to assess whether Ohio’s death penalty is being administered fairly. The task force recently announced its recommendations, and though it was a balanced group, some members criticized the task force for being “strongly influenced by a pro-defense majority bent on an agenda of abolition, not fairness.” The Dispatch criticized the task force for doing “everything short of recommending a ban.”
The task force was composed of eight judges, four legislators, three prosecuting attorneys, one assistant attorney general, one sheriff, two law school professors, two defense attorneys, a public defender and a representative from parole services. It was chaired by James A. Brogan, a retired appellate court judge, who tried death penalty cases as a prosecuting attorney.
Though a proponent of the death penalty, Brogan is concerned about how it is applied.
The state representative who drafted the statute in 1981, Paul E. Pfeifer, now an Ohio Supreme Court Justice, said in 2011 that the death penalty “is hit or miss depending on where you happen to commit the crime and the attitude of the prosecutor in that county.”`
In addition to a lack of uniformity in applying the death penalty, we sometimes send the wrong people to death row. Dale Johnson of Columbus, along with five other Ohioans, spent years on death row before being exonerated.
Two reasons for wrongful convictions are misidentification and police misconduct. Read Picking Cotton, where Jennifer Thompson-Cannino explains how she confidently—and wrongly—identified Ronald Cotton as her rapist. Cotton was sentenced to two life sentences in North Carolina. After 11 years of incarceration, he was released based on DNA evidence, and the actual attacker was identified.
In 1991, Frank Sterling of New York confessed to a murder he did not commit. After being interrogated for hours—without a lawyer—and being worn down, Sterling repeated the detailed account the police had given him. Only the last 20 minutes of his 12 hour interrogation were videotaped.
Out of 250 DNA exonerations, University of Virginia law professor Brandon L. Garrett found that 40 innocent inmates had falsely confessed and all but two had confessed in detail about nonpublic facts. How did this happen? The confessions were contaminated by overzealous interrogators.
To minimize the risk of false confessions, the task force recommended that interrogations be recorded; if not recorded, they should be presumed “involuntary.” The dissenters, primarily two prosecuting attorneys and the assistant attorney general, see this as “a substantial step backwards.” Apparently more concerned about the members of the criminal justice system than improving the process, the dissenters criticize this recommendation as taking decision-making from judges—note: the judges on the task force don’t share this view—and view the recommendation for recording confessions as “an injustice” for the many police officers who provide reliable testimony about confessions.
Race also plays a factor. The Death Penalty Information Center reports the odds of receiving a death sentence are 4.3 times higher for defendants whose victims are white than similarly situated defendants whose victims are black. The task force recommended mandatory reporting of government attorneys who take action based on race, and the recusal of judges whose decision making could be affected by racial factors. The task force also advocates creating a committee at the attorney general’s office that would determine when the death penalty should be sought, “paying particular attention to the race of the victim and defendant.”
Relying on the 1987 U.S. Supreme Court case, McCleskey v. Kemp, the dissenters see “no factual basis” that justify these recommendations. In McCleskey, the issue was whether racial bias played a role in the death sentencing process of a Georgia man; his appeal included statistical evidence of racial bias in capital cases.
The Supreme Court rejected the appeal, holding that the defendant had failed to demonstrate how race played a direct role in his case, but that doesn’t mean race isn’t a factor. It means only that the court set a standard—direct proof of bias—that is difficult to meet. The holding fails to consider the reality of racial bias, and the late Justice Lewis Powell, who drafted the opinion, publicly apologized for it in 1994, stating that capital punishment is unworkable.
The Supreme Court rejected the appeal, holding that the defendant had failed to demonstrate how race played a direct role in his case, but that doesn’t mean race isn’t a factor. It means only that the court set a standard—direct proof of bias—that is difficult to meet. The holding fails to consider the reality of racial bias, and the late Justice Lewis Powell, who drafted the opinion, publicly apologized for it in 1994, stating that capital punishment is unworkable.
The task force recommendations may have shortcomings, but criticizing the task force is unwarranted. Sure, prosecuting attorneys have valid concerns, but is their voice so much more important that those of judges and the other members of the task force? Any system based on human input is subject to error, and the task force did its best to recommend ways to minimize those errors. The question is, how open minded do we want to be in addressing them.
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Jack D’Aurora writes for considerthisbyjd.com
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