A Criminal Enterprise

Williams v. Louisiana – Cert Conference on May 13th

Posted in Cases, News by Bidish J. Sarma on May 6, 2010

The previous post contains a link to our cert petition in Williams v. Louisiana, which asks the U.S. Supreme Court to weigh in on the issue of proportionality review of capital sentences in Louisiana.  Since the time of that post, the State has filed its Brief in Opposition, and we filed a Reply.  The Court is set to meet on the petition on May 13th. 

Both the Louisiana Supreme Court and the State have taken the position that race did not play a role in the death sentence in this case because there is no evidence that Mr. Williams intended to kill the victim because of her race.   But, there is disquieting statistical evidence that the race-of-the-defendant and race-of-the-victim play a significant role in determining which defendants receive death sentences out of East Baton Rouge Parish.  The last thirteen people sent to death row from the parish are African-American, and there is evidence a black man convicted of killing a white woman has a 1 in 2 chance of being sentenced to death, while a white man has never been sentenced to death for killing a black person in the last thirty years (or perhaps ever).

The State’s Brief in Opposition can be found here: State’s Brief on Cert 

Our Reply to the State’s Brief in Opposition can be found here: Cert Reply to BIO FINAL

Cert Petition on Proportionality Review in Louisiana

Posted in Uncategorized by Bidish J. Sarma on March 16, 2010

On March 10, our office filed a cert petition in the case Williams v. Louisiana.  The petition asks the Supreme Court to review his core claim that the current administration of the death penalty in Louisiana leads to unconstitutional arbitrariness.  The question presented is: “Whether the Petitioner’s death sentence violates the Fifth, Sixth, Eighth, or Fourteenth Amendment where: (1) the Louisiana Supreme Court failed to provide meaningful appellate proportionality review; and (2) the jury did not determine beyond a reasonable doubt that death should be imposed.”

The cert petition brings attention to the Louisiana Supreme Court’s woefully deficient proportionality review.

You can view the petition in its entirety right here: Cert Petition FINAL

Proportionality Review Cert Petition Spotlighted

Posted in Cases, News by Bidish J. Sarma on September 23, 2009

Earlier today, SCOTUSblog placed our cert petition in Holmes v. Louisiana on the “Petitions to Watch” list here.

The Question Presented in the petition is:

Louisiana’s capital punishment scheme relies upon appellate review to ensure that death sentences are not disproportionate to the penalty imposed in similar cases. In assessing whether Petitioner’s sentence was excessive, the Louisiana Supreme Court did not examine similar first-degree murder cases that resulted in a life sentence, consider Petitioner’s extensive mitigating circumstances, or assess her codefendant’s relative culpability. The question presented is whether the operation of Louisiana’s capital punishment scheme violates the Eighth Amendment’s guarantee against arbitrariness in capital sentencing.

In the coming week, our blog will explore some of the issues raised by deficient proportionality reviews being conducted by state supreme courts all across the country.

Please find the full cert petition below. All of the helpful amici briefs can be found at the SCOTUSblog link above and here.

View this document on Scribd

Why Not Jason Getsy? Some Thoughts on a Failed Bid for Clemency.

Posted in Uncategorized by Robert Smith on August 19, 2009

At 10:29 A.M. Tuesday morning, the state of Ohio executed Jason Getsy.  This despite the Ohio Parole Board’s five-votes-to-two recommendation that his life be spared. Considering the fact that the Ohio Parole Board has recommended commutation of a death sentence only three other times in the past decade (and has executed 30 death row inmates over the same time period), Governor Strickland’s decision not to grant clemency raises interesting questions: How does a former prison psychologist and United Methodist Church Minister who “has concern about executions, period,” deny clemency in the face of an exceedingly rare favorable recommendation from the Ohio Parole Board? What should be the role of the victim in controlling sentencing outcomes? What of disparate sentences between co-defendants who commit the same crime (does it matter, if so, how do we measure culpability, and, in any event, who does the measuring–courts or executives)?

Some of these questions are put to rest by looking at the other three cases where the Parole Board recommended clemency. Governor Taft commuted Jerome Campbell’s death sentence over concerns that a DNA breakthrough cast doubt on the reliability of that sentence (if not the culpability verdict itself). Governor Strickland exercised executive clemency on behalf of John Spirko (citing “slim” residual doubt of guilt). Finally, Strickland granted clemency to Jeffrey Hill, who killed his mother in a drug-induced frenzy, because the (victim’s / Hill’s) family begged  the Board and the Governor not to execute Hill.

In Getsy’s case, the victim’s family pushed for Getsy’s execution. Most salient, perhaps, is the fact that the son of the deceased, Charles Serafino, who was the intended target, survived that attack despite  multiple bullet wounds (including a close-range blast to the face).  As a moral issue, what to do with a surviving victim who wants you to execute the duly convicted killer of his mother? Tough stuff. From a political expediency standpoint, could the Governor risk Serafino showing up at campaign stop flouting how Strickland is soft on crime? It’s not enough to say this should not matter, because let’s be honest, it does.

The first question this raises is what role the victim should have in the decision of executives to grant/deny clemency. I say none. And I think that could the right answer pre, during, and post trial  (and yes, I know Payne and I have heard of victim rights bills). The promise of Furman is the rational (or at least not arbitrary) imposition of the death penalty. If the severity of my crime and the characteristics of my personality make life-imprisonment the right sentence (setting aside questions of intra and inter case proportionality review), then basing a clemency determination (or worse, the original death sentence) on the feelings of the victim’s family (or worse still, the relative worth of the victim and how much people care that she he was killed . . . what of the person who has no family to speak for her?) undermines the goal of a rational seperation of the bad from the very worst of the worst.

The second question focuses on the disparate sentencing outcomes. John Santine, the mastermind, does not receive a death sentence. Jason Getsy, the triggerman, does.

Here are some relevant quotes on the subject:

Victim’s Daughter:

“two wrongs don’t make a right . . . and you can’t fix what was wrong by overturning what was right”

Trumbull County District Attorney Dennis Watkins:

“The disparate sentences between Getsy and Santine should not be troublesome. Each offender has a constitutional right to have punishment considered based on his or her individual factors. This individual consideration often results in varying levels of severity of punishment despite the fact that codefendants may have equal culpability in a particular offense.”

Dissenting Parole Board Members:

“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.” The dissenters note that the OSC has reversed sentences because they appear to be disproportionate to the severity of the crime and the characteristics of the offender. But the dissenters claim that though Ohio has to compare a defendant’s death sentence to other death sentence, “[t]here is no proportionality review required that consists of a comparison of Getsy’s sentence to Santine’s life sentence. The dissenters follow with a rhetorical question: “So, because Santine was not given the sentence that some think he deserves, we should recommend a change in Getsy’s sentencing that some think he deserves?”

Ohio Supreme Court:

“It is also troubling that Santine did not receive the death sentence even though he initiated the crime. If not for John Santine, it is unlikely the Serafinos would have been shot.”


Initially, the question is a legal as well as moral one. Getsy was convicted of an aggravating circumstance (committing a murder for hire) when no one was convicted of hiring him to commit the murder (Santine’s jury found him not guilty on that aggravator). This is a “contract” type offense, akin to a conspiracy, but only one party was found culpable. This narrow question troubled the Sixth Circuit panel that reversed Getsy’s sentence, and was discussed extensively in the majority (8) and dissent (6) en banc opinions reinstating the death penalty.

As a moral question, is the person who hires really equally (or more) culpable? It seems to me (questions of duress aside) that a jury could find that the person who actually pulls the trigger commits a more depraved act than the person who paid the money but for whatever reason did not do the actual killing (and who knows, maybe when face-t0-face with the decision to kill another person he would have  reneged?).

More practically, if we accept that these are equal culpability crimes (or that Santine is more culpable), who is the proper decision maker? The courts? The executive? I think there is an argument that if not the courts, then certainly the executive as the last line of defense against an unjust sentence. (the role of the courts also  raises even more questions about the proper role of  proportionality review (intra and inter case) that we will address in a different post. One thing is for sure, if we are going to do a comparative review of sentences, the view of the dissenting parole board members that life sentences should not be compared to death sentences simply is wrong. The relevant starting point for comparison should be death-eligibity).

The final question this raises is whether Getsy deserves clemency aside from the disparate sentecing of Santine the mastermind. Getsy has a prior negligent homicide conviction from when he was a teenager  for “accidently” killing his friend during a game of Russian Roulette. But he also took responsibility for the crime (even if not in the version that victim’s family desired), adjusted very well to prison, and was only 19 at the time. And while the degree of the duress is an open question, the mastermind of the plot, John Santine, certainly had some  influence over Getsy’s actions.  Again, we return to Furman—-should the clemency power only be utilized to set aside the outliers (and persuasive—but not persuasive enough for courts—claims of innocence?) that drive us towards arbitrary death sentences? If the clemency power should be more broadly utilized, then what standards can be implemented that do not detract from the goal of rational, proportionate sentencing. And what factors should be irrelevant?