Cordray Eagerly Jumps Into Death Penalty Debate

Ohio A.G. Cordray and Gov. Strickland (Image from Cordray for Ohio.)

Ohio Attorney General Richard Cordray, a Democrat whose conservative position on the death penalty I previously have noted, appears to have played a significant role in Governor Ted Strickland’s rejection of the Parole Board’s 5-2 vote for clemency for Jason Getsy.

Per the Tribune Chronicle’s Chris Bobby (and via Doug Berman), this is only the third time the Parole Board has recommended clemency since the re-imposition of the death penalty.  It is the first time the governor has rejected that recommendation.

From the Tribune Chronicle:

Finally, [Trumbull County Prosecutor Dennis] Watkins also got an endorsement from Ohio Attorney General Richard Cordray, who in a last minute letter to Strickland said that Getsy ”is not the kind of individual who is deserving of special mercy in the clemency process.

”Getsy’s request for clemency should be evaluated based on his own culpability, and not based on what evidence was available to be presented or how it may have been interpreted in a co-defendant’s case. We feel strongly that this is not a justifiable basis for commuting the death sentence on the facts of this case and we believe the precedent set by the Parole Board here would be detrimental to Ohio’s system of justice,” Cordray wrote.

A.G. Cordray’s office released a copy of the memo, dated August 5, which I am making available here (pdf).  Cordray wrote:

In the final paragraph of its conclusion, the [Parole Board] majority recommends that, “In imposing a death sentence, it is imperative that we have consistency and similar penalties imposed upon similarly situated co-defendants.”  What the Board seems to be asking for is a practical impossibility.  Under the Board’s theory of justice, if two people clearly deserve a death sentence but only one person receives it, then the other person should also have his death sentence vacated.  That, of course, is wrong.  If two people both deserve death, they both should receive a death sentence.  But there is no way to force juries to impose death, or to even ensure that juries will not acquit based on mistake, leniency, or compromise.

A few things here.  First of all, any question about Cordray’s policy position on the death penalty is cleared up with this paragraph.  He is plainly and unambiguously arguing that there are, under our system, too few executions.  And Cordray blames this on our legal system’s built-in protections.  The jury system, given strong force in the Supreme Court’s Apprendi line of cases, is one of Cordray’s targets.  Earlier, a newspaper reported that he blamed “participants in the system doing their best to delay cases” for death penalty problems.

Second, a lawyer’s use of “of course,” as with “clearly” or “obviously,” always should be met with skepticism.  And the assumed premise that anyone “clearly deserve[s] a death sentence” is telling, and more than a bit disturbing.

Third, and although Cordray explains his thoughts on why it is a “practical impossibility,” death penalty opponents would agree — but assert that those prosecutorial and juror judgments and determinations that result in inconsistent verdicts and sentences are, in fact, one of the significant problems of the death penalty.

Fourth, Cordray injected himself into this case.  He was not the prosecutor, and he clearly was not acting in his capacity as the lawyer to the Parole Board.  The letter references no request of the governor for this opinion, and — despite the “Attorney-Client Communication” label in the header — it appears that Cordray wanted this letter out in the public domain.

The real question that I have is: Was this done to provide cover for Strickland’s denial of clemency, or was this an uninvited injection of Cordray’s politics into the death penalty process?

Getsy is to be executed on Tuesday.

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