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Another DP First for Ohio? -- NOT


Kent was hopeful that Ohio, for the first time in recorded history, would put together a commission to "examine" the operation of the death penalty that wasn't stacked with either open or closet abolitionists.  After just a couple of days, the reports out of it seem to squelch that hope.

The head of the panel, a retired state appeals court judge named James Brogan, got things started in the usual way, as these things go.  He said, according to news  reports, that he's worried about the discretion state prosecutors have in deciding whether to pursue a death sentence at all:

"Why is it that in one county the prosecutor seeks it on many more occasions than another prosecutor," Brogan said. "Is it because urban crime is so much more serious in a larger city than in a rural community?"....

Brogan said the committee should review the role of evidence in death penalty cases, and he questioned whether the standard of certainty should be changed to "beyond all doubt" instead of "beyond reasonable doubt."

"I am terribly concerned about whether in fact the death penalty is properly applied In this state and I hope we all ask the hard questions that need to be asked," Brogan said.

The hard question that actually ought to get asked, but won't be, is why the will of the people and the judgment of the jury is frustrated so often and for so long over procedural wrangling that a serious system could and would resolve in half the time.  And, for that matter, why procedural wrangling so much occupies center stage when the prepossessing question ought simply to be:  Do we have the right guy?

I never heard of Judge Brogan before, but if the news reports are accurate, he's just the latest in a long line of clueless, gutless jurists who want to play to the Elite Wisdom by ending the death penalty on the installment plan, even while pretending to respect the law.

I don't know whether there will ever be a death penalty commission that seeks honestly to improve the implementation of capital punishment rather than drive it into the ground, but, if there is, this one ain't it.


This Brogan guy is a twit. Anyone who thinks about the whole county by county disparity thing for about five seconds has to realize how silly it is. First off, each case is different, with different evidence, possibility of accomplices etc. We let elected prosecutors deal with this reality. So now, simply because it involves death, we're going to junk that little bit of local accountability for what, a state-wide commission?

Whenever I see one of these things and the people on it who talk about being "fair," I shake my head. First off, it is impossible to be "fair" in the sense of strictly looking at outcomes, given the vagaries of the jury system, plea bargaining, as well as the differences in judges, prosecutors etc. So when these nitwits talk about fairness, as if capital murderers have some claim to absolute fairness of treatment among themselves, I just roll my eyes. It's a fool's errand. When you murder someone, you run the risk that other, arguably more culpable murderers get less of a punishment. Why these people cannot understand that simple fact is beyond me.

Bill may very well be right, of course, but I think it's a little early to conclude that the right questions won't be asked. I expect that Stephen Schumaker will ask the right questions. How much traction he gets with the other members remains to be seen.

I have always been too dense to understand the logic of this concern about disparities between counties in capital charging. It always proves too much.

The logic of the argument should mean that it is somehow inappropriate or questionable that you could only get a life sentence in Massachusetts for murder, but if you happened to cross the state line into Connecticut you could get a death sentence. Similarly, even among capital states, it could be questioned that a defendant could get death in one state because it has a particular aggravating circumstance, but not get death in another state because it does not have the death penalty for that same aggravating circumstance. Either way, the logic of the disparity concern dictates that either all the states should have uniform death penalty laws or there should be no death penalty at all--there is no other way to eliminate these potential disparities. Obviously, the Supreme Court has never dictated these alternatives. In that light, I have never seen a principled reason why it should be a matter of concern that different counties in capital states should apply different criteria in their charging decisions. It is a bogus issue.

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