All in proportion

Under Ohio's death penalty law, every death sentence must be reviewed by the Supreme Court of Ohio (and in cases where the crime occurred before January 1, 1995, also by the court of appeals) to determine, among other things,

whether the sentence is excessive or disproportionate to the penalty imposed in similar cases.

It's like the Miller Analogies Test. You remember, A is B as C is to ___.

A few years ago, I was talking to a friend of mine from Texas who said that we were lucky up here in Ohio. In Texas, they'd been fighting for years to get proportionality review into the law. I said we'd been trying to get it, too.

See, Ohio courts have conducted that review hundreds of times. They have never found a death sentence disproportionate. The reason is evident when you look at how they do it.

They refuse to consider cases where a death sentence was not sought or where it was rejected. Those cases, the Supreme Court declared (in State v. Steffen - sorry, I don't have a link to a free copy), are obviously not similar, because if they were, the person would have been sentenced to die.

So the question is never "Why this guy?" Rather the question is, "Did the legislature allow death for this guy?" And that means no death sentence that's otherwise legal can be disproportionate. The question prohibits a finding of disproportion.

Which brings us to Jason Getsy.

He's on death row in Ohio. He has a very real execution date of August 18. And yesterday, by a 5-2 vote, the Parole Board recommended that the Governor grant him clemency and commute his sentence to life without parole. The Board's opinion makes clear that proportionality was the key issue.

Unlike the Justices of the Ohio Supreme Court, a majority of the Parole Board thought what happened to Getsy's co-defendants, all of whom got life sentences, was relevant, and that while he may have been one of the most culpable, he didn't act alone and wasn't more culpable than another who got life. As the Board's report (available here) explains the majority position,

In imposing a death sentence, it is imperative that we have consistency and similar penalties imposed upon similarly situated co-defendants.

That's a consideration that the two dissenter's rejected.

There has been much discussion by the courts and this Board regarding proportionality review and disparate sentencing. "Proportionality, as defined by the Supreme Court, evaluates a particulr defendant's culpability for his crime in relation to the punishment that he has received."

There you have it.

Either you ask if the sentence proportional to itself, a tautological question which provides its own positive answer and guarantees that the statutory obligation to review sentences for proportionality will be a sham, or you ask a real question.

This time, the Parole Board got it right. Now it's up to Governor Strickland.