Thursday, July 30, 2009

Ohio: Disparate Sentencing and the Pardon Power

In the recent report of the State's Adult Parole Authority, two dissenters made the following statement in the case of Jason A. Getsy:
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 particular defendant's' culpability for his crime in relation to the punishment that he has received." There have been some death sentences struck down by the Ohio Supreme Court "not because they were disproportionate in comparison to sentences received by their similarly situated defendants, but because of what the Court deems to be the inappropriateness of the sentence in relations to the particular characteristics of the crime and the criminal at issue.
If PardonPower understands the construction of this theoretical straight jacket correctly, then critics of the Board's recent recommendation of clemency believe proportionality considerations are (or should be) limited to 1) individual sentences or 2) similar individual sentences in separate cases. If, however, 5 individuals are found guilty of conspiring together to commit a single criminal act, four are fined $32 and the fifth is sentenced to be hanged, then there is nothing to see. There no red flags worthy of the attention of appellate courts. Everything is in order. At the very most, we have what may be an "unfortunate circumstance"! Well, that is some theory!

But, let's accept the theory without so much as a blink of an eye and realize - at the same time - that the "unfortunate circumstance" is exactly what the pardon power was created for. Juries have their opinions, as do appellate judges. And they deserve our respect. But the decision making of each is constrained by a variety of factors. The executive who wields the pardon power, on the other hand, is not limited in any way. He/she can consider all circumstances, all factors and then use the pardon power to turn those glaring "misfortunes" into something more in tune with basic notions of justice (something we should also respect). Indeed, the duty to maintain this larger perspective is the very foundation of mercy. At common law, there were no distinctions between murder and manslaughter. When a small girl accidentally pushed her sibling into a boiling pot, she "unfortunately" became a murderer. The King of England used the pardon power, however, to do what courts and juries could not (or were not willing to) do. He exercised mercy.

If the Governor of Ohio has any doubts about this general perspective, he should consider walking to the library and thumbing through the Annual Report of the U.S. Attorney General, especially from the late 1800s to 1930 or so. These reports list every individual act of clemency by each president and often contain a word of explanation - by the president or the attorney general. The reports reveal that clemency was commonly extended to individuals because their individual sentences were out of line with (or disproportionate with) the individual sentences of co-defendants in the same case. That is to say, presidents haven't ever accepted the odd, theoretical restriction discussed above and neither should Governor Strickland.

1 comment:

NedHamson said...

Excellent analysis!

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