Language and The Death Penalty -- Part I

I cannot say that I am unequivocally opposed to the death penalty. However, I am convinced that the human race, in its current state of moral and ethical development, is incompetent to administer the death penalty in a just way.

Some years ago, I was asked by the Ohio Public Defenders office to examine the standard jury instructions for the penalty phase of death penalty cases. These are instructions judges are encouraged, but not obligated to read to the jury. I was quite astonished to learn that these instructions were in many respects incomprehensible and, what is worse, used language suggesting that death is the default verdict -- as if jurors faced a "find for death unless..." decision. I also read several final arguments and discovered that prosecutors routinely failed to follow the law in arguing for the death penalty, appealing to such nonstatutory, legally irrelevant emotional factors as the youth of the victims, the henious nature of the crime, the unrehabilitatibility of the defendant, etc. Oddly, defense attorneys didn't object. Nor did judges. At least not in the cases I read. What the adults involved seemed to be playing was the children's game of "lets pretend" -- in this case, it was lets pretend that the defendant is getting a fair trial.
In this blog, I will focus on just one matter, namely the statute defining the criteria for imposing the death penalty and the various other options.

§ 2929.03. Imposing sentence for aggravated murder.
(2) [Snip] If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to one of the following:
(a) Except as provided in division (D)(2)(b) of this section, to life imprisonment without parole, life imprisonment with parole eligibility after serving twenty-five full years of imprisonment, or life imprisonment with parole eligibility after serving thirty full years of imprisonment;

The problem back when I was a consultant to the OPD and now is that the jury instructions and the forms the jury must fill out insist that any decision they make be unanimous. Before going futher, see if you can find justification for such a practice in the passages quoted above.

Notice that the language of the first paragraph quoted suggests an order in which the jury should proceed. After deliberating, they should vote up or down on the death penalty. The bolded phrase "absent such a finding," which means `absent such an unanimous finding' the jury should move on to consider penalties of life-without-parole or 25-to-life or 30-to-life. While I was doing this work the first of these three options was not available. Its inclusion is an improvement.

The jury form to be filled out by the foreman insists that any of the three verdicts, life-without- parole or 25-to-life or 30-to-life, be unanimous. The law, quoted above, does not say that. It is in fact mute as to whether the jury should vote on all three at the same time and go with the one with the most votes or go through them one by one getting the "yeas" and "nays" and going with the one with the most votes. Nor does the law provide any criteria for choosing between the three "life" options.

The problem is this: suppose that the jury splits 11-1 or 10-2 or 9-3 for the death penalty. As I read the law, at that point, should the minority group hold firm, the jury should abandon the death penalty and move on to the other three options. Suppose further that the jury cannot come to a unanimous verdict on any of the remaining three options. What is the jury to do?

The death penalty jury cannot hang. It must come to a decision. I was told by a lawyer working for the Ohio Public Defenders office today that in State v. Gapen the jury, having apparently moved past the issue of death, could not come to an unanimous agreement as to any of the three "life" choices -- live-without-parole, 25-to-life or 30-to-life. The judge, using the so-called "Howard" charge (officially noncoercive, but actually coercive) told them to go back and reconsider the death penalty along with the three "life" choices, which, as we have noted, is inconsistent with the language of the law. The jury did, and, not surprisingly, they came to a unanimous verdict for death. Why didn't the judge tell them to focus on the life-without-parole option instead? As I mentioned, the entire system is predicated on the thesis that the decision the jury must make is "death, unless..." Back when the options were "death," "20-to-life," and "30-to-life" and the majority of the voters were in favor of the death penalty, the holdouts routinely were forced to move over to the other side if they wanted to ever go home.

Inclusion of the life-without-parole option was intended in part to give juries an option to the death penalty if they were fearful that the defendant might get paroled. As we have seen, that didn't entirely solve the problem of "hung" juries being forced to "unhang" themselves and hang the defendant instead (so to speak).