Saturday, July 23, 2011

Because I'm the Judge, That's Why

On Friday, after 15 hours of deliberations, a jury in Cleveland found Anthony Sowell guilty, guilty, guilty.  All those bodies, the folks who escaped, kidnapping, and on and on.  82 counts!  (Acquitted of one, I should add, and the judge earlier entered acquittals on 2 others.)  Next up, after a week to regroup, everyone will reassemble to consider the sentence.
Under Ohio law, it works like this.
  • The judge will decide the sentences to be imposed for all the crimes other than the aggravated murders with death specifications.
  • The judge will decide whether the sentences should run consecutively or concurrently.  And he can mix and match, making some consecutive and others concurrent.
  • The jury will decide, sort of, whether Sowell should be murdered by the state of Ohio, and how often.  And if not, or not always, what life sentence to impose.
That last probably requires a bit of explanation.
For each aggravated murder with death specifications, there are four possible sentences.
  1. Life with eligibility for parole (at the discretion of the Parole Board) after serving every day of 25 years in prison.
  2. Life with eligibility for parole (at the discretion of the Parole Board) after serving every day of 30 years in prison.
  3. Life without the possibility of parole (LWOP or Death in Prison).
  4. Death.
Each count is determined separately.  So the jury can, at least in theory, say death for this murder, LWOP for that one, 25 - life for another, death again, 30 - life here, and so on.  And, again, the judge decides whether to make the sentences consecutive or concurrent.  (Kill him 11 times in a row or kill him 11 times simultaneously?)
But there's another bit of the law, which is why I said that the jury would "decide, sort of," whether Sowell should get death.  Any of the life sentences chosen by the jury is the sentence that must be imposed for that murder.  But the judge has the authority to overrule a jury's death sentence and impose any of the life sentences he chooses.
So, if the jury says for one of the killings Sowell should serve a full 30 years and then be eligible for parole, Sowell will get that sentence.  The judge cannot reduce it to 25 years before eligibility or enhance it to LWOP or death.  But if the jury says death, the judge can impose any of the four possible sentences.  That is, a death verdict from a jury is, technically, a recommendation.
The idea is that the jury speaks for the community, but if the jury is swayed by passion and blood lust, a wise and dispassionate judge can fix it.  But when the jury (that is, the community) says life, overruling that would be unjust, unfair, undemocratic.
Not surprisingly, Ohio judges don't like to overrule juries.  In fact, and in a couple of hundred (I'm too lazy to count them but it's pretty clearly over 200 jury death verdicts) cases where juries have said death since the law went into effect in October 1981, Ohio judges have instead said life a total of 8 times.
Why "not surprisingly"?  Is it because juries are so good?  Because they never get it wrong?  Because nobody ends up on death row who doesn't deserve to be there?
Uh, no.  Not even close.
In a small way, it's a function of judicial deference to juries.  In a larger way it's because judges are too lazy  or (and here's where we finally get to the point) too scared or too busy pandering to do what they know they should.
See, our judges in Ohio are elected for six year terms.  And while they aren't supposed to make decisions based on how they'll play with the voters at the next election (or when they seek election to a higher court), it's always a consideration.  Unconscious perhaps (or maybe that should be "subconscious") but a consideration.
Don't believe me?
One day years ago, from his seat behind the marble (granite?) bench in the Rhodes Office Tower before the Supreme Court had its own special building, one Ohio Supreme Court Justice looked down on counsel for a capital defendant during during oral argument and asked
But what would people say if we reversed?
Not perhaps the most judicious of questions, but it was before they started recording all the arguments and making them available for posterity.
But pandering (and no, I say invoking the Mark Gardner Rule, no sitting Ohio judge or Justice would ever pander that way) reaches heights undreamed of in lesser locales in the Yellowhammer State (Alabama, for the uninitiated).
There are 3 states where judges can impose death after a jury says life: Alabama, Delaware, and Florida.
No one is on death row in Delaware as a result of judge override. Delaware judges - who are not elected - typically use override to impose life sentences. In Florida, six people are on death row as a result of override. No Florida judge has imposed death through override in 12 years. Whereas more than 20% of the people on Alabama’s death row were condemned by override, judge override accounts for less than 2% of Florida’s current death sentences. Florida judges have used override to impose life sentences in 87 cases, compared to only nine in Alabama.
That's from a report, The Death Penalty in Alabama: Judge Override released a couple of weeks ago by
The report explores the numbers in some detail. It analyzes the standards - both theoretical and as applied - in each of those three states.  It examines geography.  It looks at politics and the way judicial elections are run.
These political pressures produce the appearance and reality of a judiciary that is insufficiently independent to provide a fair and impartial hearing on controversial issues or enforce the rights of politically unpopular minorities. Because trial judges have almost unlimited discretion in capital sentencing, and because reviewing judges also are subject to reelection pressure, the override decision is perhaps the most vulnerable to political pressure. Scholars observe that, in a state where the majority of people favors the death penalty, “a judge who declines to hand down a sentence of death, or who insists on upholding the Bill of Rights, may thereby sign his own political death warrant.”
Well, yeah.
But most telling is when the judges admit the truth.
In his order condemning John Neal to death despite the jury’s life verdict, Baldwin County Judge Charles Partin determined that Mr. Neal’s 65 IQ score classified him as having mild mental retardation, but the judge asserted that “[t]he sociological literature suggests Gypsies intentionally test low on standard IQ tests.” After Mr. Neal’s case was reversed on appeal because the prosecutor illegally excluded people of color from the jury, the State agreed that Mr. Neal is exempt from the death penalty because he is mentally retarded.
Then there's Judge Dale Segrest.
After hearing evidence about 19-year-old Bobby [Waldrop]’s addiction to crack cocaine, his deep remorse over the killing of his grandparents, and the love between him and his grandparents, the jury decided that life in prison without parole was the appropriate punishment. Judge Segrest was facing re-election at the time of sentencing, and he overrode the jury’s verdict. in open court, he explained that he sentenced Mr. Waldrop (who is white) to death to show he was not racially biased in his past cases: “If I had not imposed the death sentence [on Bobby Waldrop], I would have sentenced three black people to death and no white people."
Is racism the main reason for the overrides?  The report doesn't answer that, and I can't.
Here's what I know.
Death sentences are inherently arbitrary.  There's simply no consistent, fair, rational way to determine whether this person should be executed for this criminal homicide but that person should be sentenced to life for that criminal homicide.  Like all weighing tests in the law, like all balancing tests in the law, the decisions are inherently arbitrary.  When made by a jury of 12, there's some hope that the various juror's individual views will temper each other.  Frankly, the hope that the result will be fair and just is vain, but there's at least a chance that the juror's biases and prejudices and predilections will even out.  When a single judge can toss that aside, with no real oversight, with no real standards, there's no real hope.
After a couple of decades on the bench, Harry Blackmun concluded that the death penalty simply could not be imposed fairly and rationally.
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.
That was 1994.
And it's today. 
Alabama's a particularly ugly example, but it's just an example.


  1. I kept thinking you were going to make a connection between judges being elected and judges being appointed and the way they rule in such things, especially with that Delaware Alabama Florida stuff. Did I miss it? That question interests me because I don't really think election v. appointment makes very much difference, but that's more of an anecdotal observation than anything else.

    And yes, the Mark Gardner rule. You might be right, but I wonder whether the deep sickness in the judiciary has had any remedy other than the occasional truthful if vituperative appraisal from the lawyer in a position to know what they did.

    They walk all over defendants and defense counsel because they pay no price for it, but they surely pay a price if they walk all over prosecutors and police.

    Police and prosecutors have power, and there's nothing anyone can do about that, so it's never going to be the case that they cannot make a judge pay for crossing them.

    Therefore - see? I can reason a little - the only window for improvement is that defense lawyers have to think of a way to make judges pay a price for crossing THEM.

    Judges are low character people, or they wouldn't be judges. Right and wrong mean little or nothing to them, but career pressure means a lot. Defense lawyers must think of a way to threaten judges' careers that is at least tangible enough to have an impact.

    It's primitive. But they bring it on themselves.

  2. The EJI report really doesn't lend itself to a direct distinction between how appointed and elected judges behave in giving overrides. Florida elects, and it's judges are far more like Delaware's than like Alabama's. For what it's worth, study after study says (and Alabama per EJI follows this pattern) that as a judge's reelection draws near, her sentencing becomes more draconian.

    I think it matters whether judges are elected or appointed (appointed's better) but the differences aren't all that great. After all, most appointed judges are politically connected and few elected judges are truly of the people and not the party. Far more important tends to be party affiliation, but even that can be overstated.

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