Ending the Death Lottery

34 Pages Posted: 4 Apr 2015

See all articles by William W. Berry

William W. Berry

University of Mississippi School of Law

Date Written: April 2, 2015

Abstract

When the Supreme Court reinstated the death penalty in 1976, it did so under the assumption that certain safeguards would remedy the arbitrariness of capital sentencing. Comparative proportionality review, in which the state supreme court would review jury sentences to ensure a modicum of consistency, was a central part of many states’ attempts to comply with the Eighth Amendment. In Ohio, however, this safeguard is illusory; the state supreme court has never reversed a capital case on proportionality grounds, despite reviewing almost three hundred cases. This Article explores this unfortunate phenomenon. Using a quantitative methodology, this Article assesses the degree to which Ohio capital cases sentenced after the adoption of life-without-parole (between 1996-2011) are comparatively proportionate.

After finding that over forty percent of Ohio’s capital cases during that period were comparatively excessive, the Article argues that Ohio’s current use of the death penalty contravenes the Eighth Amendment and is therefore unconstitutional. The Article then proposes two alternative remedies to solve this problem: (1) institute meaningful proportionality review with the aid of social science or (2) abolish the death penalty. Finally, the Article considers the consequences of this study for the almost two-thirds of death penalty states that use comparative proportionality review.

Part II of the paper briefly traces the requirements of the Eighth Amendment and the origins of proportionality review. Part III describes Ohio’s use of proportionality review and explains why it is largely a matter of form over substance. Part IV presents the empirical study of Ohio’s capital cases from 1996-2011 and highlights its central conclusions. Part V argues that these results show that Ohio’s capital system violates the Eighth Amendment. Next, Part VI proposes ways to remedy the constitutional shortcoming. Finally, Part VII explores the applicability of the study to the large majority of death penalty jurisdictions that currently use proportionality review.

Keywords: death penalty, eighth amendment, proportionality review, Pulley, Ohio, capital punishment, disproportionate

Suggested Citation

Berry, William W., Ending the Death Lottery (April 2, 2015). Ohio State Law Journal, Vol. 76, No. 1, 2015, Available at SSRN: https://ssrn.com/abstract=2589383

William W. Berry (Contact Author)

University of Mississippi School of Law ( email )

481 Chucky Mullins Drive
P.O. Box 1848
University, MS 38677
United States
6629156859 (Phone)

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