Lacking the Courage of Their Convictions

The Ohio Supreme Court today unanimously upheld the conviction and death sentence of Edward Lang  (State v. Lang.)

Oh, a couple of minor things may not have gone exactly right.  

• The prosecutor mischaracterized some evidence.
• One of the jurors lied during voir dire.
• The judge got it wrong when he told the prospective jurors how to decide on a death sentence.

That sort of thing.  But, really, you know, Lang was a bad guy and well, he did kill those people.  So, well, 

Off with his head!

(But nicely, by lethal injection.)

That's what typically happens in Columbus.

And if that were all that happened, I'd be doing a different post right now (though one still about this case - one I may write later today).  But that's not all.  Because Justice O'Donnell's opinion was joined only by three others of the seven (O'Connor, Lanzinger, and Cupp).  The others, agreed with the result, but --

Well, that's were it gets interesting.  And even more disheartening than these things usually are.

You need to start with Evelyn Lundberg Stratton.  She's one of the more interesting of the seven on the court.  Known informally as the Velvet Hammer for her harsh sentences in felony cases when she was a trial judge in the early 1990s, she was named one of the Outstanding Young Women in America in 1983 and 1985 when she was an associate with an Ohio firm.  Even before then, though, she was a star, winning first place in Girl's Goat Tying at the LeTourneau Stampede in 1972 when she was attending LeTourneau College in Longview, Texas.  Oh, and did I mention that she was born and raised in Southeast Asia.  (I'm not making any of this up.  You can learn all that and more on her page and it's links at the Supreme Court's website.)  What's maybe more relevant about her is that she's something of a mental health activist.  (Again, you can check out her page.) 

Her concern for the mentally last came up in a capital case in 2006.  That was State v. Ketterer, where she explained in a concurring opinion that Ketterer suffered from severe mental illness and therefore shouldn't be executed.  But, since Ohio law allowed the execution of the seriously mentally ill, so be it.

The time has come for our society to reexamine the execution of persons with severe mental illness. Until the General Assembly does so, under our current law, they will continue to be executed. As I am bound to follow the law as it stands today, I reluctantly concur in the affirmance of Ketterer’s sentence of death.

She was, of course, both right and wrong. 

She was right that people with severe mental illness shouldn't be executed.  And she was right that Ohio law didn't prohibit their execution.  But she was wrong in concluding that she had to affirm the death sentence of someone who was, in John Blume's words at a death penalty seminar some years ago, "really fucking crazy."  There were two reasons she didn't have to do that.  

First, she got to decide, independently, whether the aggravating circumstances in Ketterer's case outweighed the mitigating factors.  If she thought being really nuts should be a basis for exclusion from death (even if the Ohio General Assembly didn't agree), she was not merely free to vote to reverse the death sentence, she was obligated to vote for reversal.

Second, she could have decided, based on her understanding of the 8th Amendment's ban on cruel and unusual punishment or of the similar ban in Section 9, Article I of the Ohio Constitution.  That the court's hadn't agreed with her to that point didn't prevent her from staking out the territory.

In any event, she didn't.  (Nor did Justice Pfeifer who joined her concurrence in Ketterer.

And now she's done it again. (And Pfeifer, too, and also Justice McGee Brown.)  This time, she explains that she doesn't think the courts should prohibit execution of the crazy but that the legislature should.  The reason is that it's hard to quantify just when someone is crazy enough not to be killed.  Let the General Assembly decide on a suitable degree of nutsiness.  From Lang.

Therefore, I urge our General Assembly to consider legislation setting the criteria for determining when a person with a severe mental illness should be excluded from the penalty of death. Unlike mental retardation, which can be determined by a number on an IQ test and other basic criteria, mental illnesses vary widely in severity. The General Assembly would be the proper body to examine these variations, take public testimony, hear from experts in the field, and fashion criteria for the judicial system to apply.” Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 246-247 (Lundberg Stratton, J., concurring).

Hmmm.  How would that work?  Got it.  A person who's insanity is 12 doesn't get killed but insanity at 11 does.  Oh, wait, insanity doesn't come like that?  Damn.  Back to the drawing board.

But that still doesn't answer the independent weighing question.  If severe mental illness should be a complete exclusion, then even if it's not an 8th Amendment violation, and even if the legislature hasn't said so, it should be enough of a mitigating factor to save Lang's life.

But no.  Not one of the three would go there.

Let's be clear.  It takes four votes on the Ohio Supreme Court.  Three dissents from death isn't enough. But they'd make a point far more potent than just urging the General Assembly to care about this stuff.  And they'd be doing what their oath and law both require - independently determining the weight to be given to the mitigating evidence that Lang was severely mentally ill.

Might even convince a fourth.  Which would be enough to save a life.

Maybe next time.