Post by thinkinkmesa on Oct 20, 2007 13:23:55 GMT -5
Cincinnati Enquirer
September 30, 2007
DEATH PENALTY PROCESS HAS TOO MANY FLAWS
By Ann Marie Tracey ( Ass't Professor and Retired Judge)
I have imposed the death penalty. While this act changed who I am, I wouldn't take it back. As a judge on the Hamilton County Court of Common Pleas, my responsibility was to sentence a defendant to death if the facts supported it and the law required it. And apart from the moral divide separating me from my duties, there was no question the facts and the law required it. So I joined the two other judges on the three-judge panel (an alternative to a jury the defendant can elect) and imposed the sentence.
The Enquirer recently reported the American Bar Association's findings that Hamilton County led Ohio in the rate and quantity of death sentences imposed. Did it come as a surprise? While during my almost 15 years on the bench I tried a capital case about every two years, I have had colleagues in other counties who served for decades without ever getting a capital case.
Apart from the real humanitarian concerns that arise in discussing the death penalty, there are some critical reasons why we should rethink the value of this tool in our community and look to other approaches.
First, the death penalty trial protocol itself is fundamentally
flawed. The trial has two parts: the trial phase (which everyone calls the "guilt" phase as that is the foregone conclusion) and the penalty phase.
If jurors find a defendant has committed the offense and components that make it a capital case, the same jury proceeds to the "penalty" phase.
However, only "death-qualified" jurors may serve on a capital jury.
During the jury selection process, apart from the usual niceties about where did you go to school and do you know any of the witnesses, prosecutors and judges grill jurors about their views of the death penalty.
Unless a juror states that he or she would impose the death penalty if called upon to do so, that juror is excused. This includes people who are opposed to the death penalty, as well as those who support it but who are unwilling to impose it themselves. In short, only those who are pro-death penalty and will personally trigger it can serve.
EXCLUSIONARY, DISTORTED PROCESS
Regrettably, this process excludes many citizens who would do an
impartial and great job of determining guilt or innocence. It also tends to exclude African-Americans, who disproportionately (in my experience) state when questioned that they are unwilling to impose the death penalty.
This position is often founded on a view that black people
disproportionately receive the death penalty, which the ABA study confirmed is true if the victim is white. As a consequence of death-qualifying a jury, important and diverse perspectives suffer.
In addition to a distorted process, capital cases leach significant
resources from taxpayer dollars. These include protracted court
proceedings, jury summons and questioning, housing jurors, law enforcement, prosecutorial and defense expenses and appeal costs. Couldn't crime prevention and educating children better use these funds?
Further, the death penalty imbalances divide our community and
undermine trust in the process. This is a time when we have the opportunity to start healing wounds, developing businesses and promoting tourism. Is being the Death Penalty Capital of Ohio what we envision as our calling card?
LEGISLATIVE ALTERNATIVES
As long as voters in Ohio support the death penalty, we can move to provide defendants, and citizens willing to serve on juries, a fair
playing field. The law already allows for substituting in the second phase alternate jurors who did not deliberate; they are asked if they will accept the jury's verdict of guilt and be able to move forward with the sentencing phase.
The Ohio General Assembly could change state law to allow jurors to sit on a capital jury regardless of their views of the death penalty, but then excuse them and substitute alternates before the penalty phase should they be unable or unwilling to impose the death penalty if required to do so.
Second, the General Assembly could provide for an alternative penalty of life without parole in addition to the death penalty in a capital case. Right now, it is an option for jurors only if they find that the facts and law do not support the death penalty, or do not agree.
My years on the bench and in neighborhoods taught me that we not simply a "law and order" community. We are not blind to the texture and depth and complexity of challenges. Let's start facing them together in a meaningful way that resonates with our constitutional and democratic roots.
Ann Marie Tracey is an assistant professor of legal studies and ethics at Xavier University, and is a retired Hamilton County Court of Common Pleas judge.
September 30, 2007
DEATH PENALTY PROCESS HAS TOO MANY FLAWS
By Ann Marie Tracey ( Ass't Professor and Retired Judge)
I have imposed the death penalty. While this act changed who I am, I wouldn't take it back. As a judge on the Hamilton County Court of Common Pleas, my responsibility was to sentence a defendant to death if the facts supported it and the law required it. And apart from the moral divide separating me from my duties, there was no question the facts and the law required it. So I joined the two other judges on the three-judge panel (an alternative to a jury the defendant can elect) and imposed the sentence.
The Enquirer recently reported the American Bar Association's findings that Hamilton County led Ohio in the rate and quantity of death sentences imposed. Did it come as a surprise? While during my almost 15 years on the bench I tried a capital case about every two years, I have had colleagues in other counties who served for decades without ever getting a capital case.
Apart from the real humanitarian concerns that arise in discussing the death penalty, there are some critical reasons why we should rethink the value of this tool in our community and look to other approaches.
First, the death penalty trial protocol itself is fundamentally
flawed. The trial has two parts: the trial phase (which everyone calls the "guilt" phase as that is the foregone conclusion) and the penalty phase.
If jurors find a defendant has committed the offense and components that make it a capital case, the same jury proceeds to the "penalty" phase.
However, only "death-qualified" jurors may serve on a capital jury.
During the jury selection process, apart from the usual niceties about where did you go to school and do you know any of the witnesses, prosecutors and judges grill jurors about their views of the death penalty.
Unless a juror states that he or she would impose the death penalty if called upon to do so, that juror is excused. This includes people who are opposed to the death penalty, as well as those who support it but who are unwilling to impose it themselves. In short, only those who are pro-death penalty and will personally trigger it can serve.
EXCLUSIONARY, DISTORTED PROCESS
Regrettably, this process excludes many citizens who would do an
impartial and great job of determining guilt or innocence. It also tends to exclude African-Americans, who disproportionately (in my experience) state when questioned that they are unwilling to impose the death penalty.
This position is often founded on a view that black people
disproportionately receive the death penalty, which the ABA study confirmed is true if the victim is white. As a consequence of death-qualifying a jury, important and diverse perspectives suffer.
In addition to a distorted process, capital cases leach significant
resources from taxpayer dollars. These include protracted court
proceedings, jury summons and questioning, housing jurors, law enforcement, prosecutorial and defense expenses and appeal costs. Couldn't crime prevention and educating children better use these funds?
Further, the death penalty imbalances divide our community and
undermine trust in the process. This is a time when we have the opportunity to start healing wounds, developing businesses and promoting tourism. Is being the Death Penalty Capital of Ohio what we envision as our calling card?
LEGISLATIVE ALTERNATIVES
As long as voters in Ohio support the death penalty, we can move to provide defendants, and citizens willing to serve on juries, a fair
playing field. The law already allows for substituting in the second phase alternate jurors who did not deliberate; they are asked if they will accept the jury's verdict of guilt and be able to move forward with the sentencing phase.
The Ohio General Assembly could change state law to allow jurors to sit on a capital jury regardless of their views of the death penalty, but then excuse them and substitute alternates before the penalty phase should they be unable or unwilling to impose the death penalty if required to do so.
Second, the General Assembly could provide for an alternative penalty of life without parole in addition to the death penalty in a capital case. Right now, it is an option for jurors only if they find that the facts and law do not support the death penalty, or do not agree.
My years on the bench and in neighborhoods taught me that we not simply a "law and order" community. We are not blind to the texture and depth and complexity of challenges. Let's start facing them together in a meaningful way that resonates with our constitutional and democratic roots.
Ann Marie Tracey is an assistant professor of legal studies and ethics at Xavier University, and is a retired Hamilton County Court of Common Pleas judge.