Capital punishment is the death penalty.

It is used today and was used in ancient

times to punish a variety of offenses. Even the bible advocates death for murder and other
crimes like kidnapping and witchcraft.

When the word death penalty is used, it makes yelling and screaming from both
sides of extremist. One side may say deterrence, while the other side may say, but you
may execute an innocent man.

Today, one of the most debated issues in the Criminal Justice System is the issue
of capital punishment or the death penalty. Capital punishment was legal until 1972,
when the Supreme Court declared it unconstitutional in Furman v. Georgia stating that it
violated the Eight and Fourteen Amendments citing cruel and unusual punishment.
However, in 1976, the Supreme Court reversed itself with Gregg v. Georgia and
reinstated the death penalty but not all states have the death penalty.

Death Penalty Failed as a Deterrent

Some criminologist claim they have statistically proven that when an execution is
publicized, more murders occur in the day and weeks that follow. A good example is in
the Linberg kidnapping. A number of states adopted the death penalty for crime like this,
but figures showed kidnapping increased. Publicity may encourage crime instead of
preventing it (McClellan, G., 1961).

Death is one penalty which makes error irreversible and the chance of error is
inescapable when based on human judgment . On the contrary, sometimes defendants
insist on execution. They feel it is an act of kindness to them. The argument here is - Is
life imprisonment a crueler fate?” Is there evidence supporting the usefulness of the
death penalty securing the life of the citizens (McClellan, G. 1961)?
http://www.prodeathpenalty.com/OrnellasPaper.htm

Current Death Row Population in Ohio 188

II. OHIO’S DEATH PENALTY STATUTE: THE GOOD

The United States Supreme Court has made clear that death penalty states have broad discretion
to define capital crimes
and to set up procedures to implement capital sentencing schemes. As the Court stated in
Spaziano v. Florida, “[t]he
Eighth Amendment is not violated every time a State reaches a conclusion different from a
majority of its sisters over how best
to administer its criminal laws." This is not to say, however, that death penalty states have free
reign to implement capital
sentencing schemes.
States must narrow death-eligible offenders into a subclass of all persons who commit murder. A
valid state sentencing
scheme must properly channel the sentencer’s discretion to ensure that the death penalty is
applied only to the worst types of
murder and that it is not applied in an arbitrary or capricious manner. Such a scheme must also
provide for fully
individualized sentencing of the defendant, as “the fundamental respect for humanity underlying
the Eighth
Amendment . . . requires consideration of the character and record of the individual offender and
the circumstances of the
particular offense as a constitutionally indispensable part of the process of inflicting the penalty
of death." Accordingly, a
state’s sentencing scheme must comport with the Eighth Amendment’s “twin objectives . . . of
measured, consistent
application [of capital punishment] and fairness to the accused." Other than these two Eighth
Amendment requirements,
however, the Supreme Court has placed very few “substantive limitations on the particular factors
that a capital [sentencer]
may consider in determining whether death is appropriate."
With these constitutional principles in mind, we conclude that Ohio’s death penalty statute is
essentially favorable to the
capital defendant (aside from the obvious fact that the statute allows the state to impose the death
penalty). From the standpoint
of the defense practitioner, Ohio’s death penalty statute provides more substantive and procedural
protections to the capital
defendant than the Federal Constitution requires. We discuss these substantive and procedural
protections in this section as
OHIO STATE LAW JOURNAL [Vol. 63: 549 (2002)]
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they pertain to the topics of death penalty eligibility factors, death penalty selection factors and
procedures, jury participation
in capital sentencing, available life sentences, and the function of appellate review of capital
sentences.
A. Eligibility Factors
Eligibility factors are the criteria used to determine for whom the death penalty may be imposed
under law. Through
eligibility factors, a state narrows all crimes of murder into a subclass of capital crimes.
Eligibility factors must therefore
achieve the constitutional objective of channeling the sentencer’s discretion so as to eliminate the
standardless or arbitrary
application of the death penalty. In this respect, eligibility factors cannot be “too vague.”An
impermissibly vague
eligibility factor “fails adequately to inform juries what they must find to impose the death
penalty and, as a result, leaves them
and appellate courts with the kind of open-ended discretion which was held invalid in Furman v.
Georgia."
In Lowenfield v. Phelps, the United States Supreme Court made clear that states may establish
death eligibility
through two methods. In the first method, death eligibility is achieved at the culpability phase of a
bifurcated trial upon a
finding of guilt of capital murder, as defined by the legislature. In the second method, death
eligibility is achieved when
the defendant is found guilty of a broader class of murder and then, “at the penalty phase” of a
bifurcated trial, the capital
sentencer finds an additional fact of an aggravating circumstance that narrows the murder into a
subclass of capital
murder.
The Ohio General Assembly, however, has enacted a third method for establishing death
eligibility. In Ohio, the
defendant becomes death-eligible at the culpability phase of a bifurcated proceeding in a two-step
process. The defendant must
first be found guilty of committing at least one of five types of aggravated murder. The defendant
must then be found
guilty of at least one of nine aggravating circumstances. A case may proceed to the penalty phase
to determine if the
defendant gets a life sentence or death only if the defendant has been found guilty of both
aggravated murder and at least one
aggravating circumstance at the culpability phase.
The defense practitioner must keep Ohio’s method for determining death eligibility in mind when
litigating non-penalty
phase issues to ensure that his or her client receives a heightened degree of judicial scrutiny on
review. Judges must afford a
heightened degree of reliability to capital cases as the result of the extreme finality of the death
penalty, This requirement
of heightened scrutiny on review even extends to collateral proceedings on federal habeas corpus
petitions. Thus, the
capital defense practitioner must realize that many culpability phase issues, such as instructional
errors on the elements of an
aggravated murder charge or an aggravating circumstance, may create defects in the
constitutionally mandated process of
narrowing the defendant into the class of death-eligible defendants. The practitioner must
therefore be prepared to argue that
culpability phase issues may demand the Supreme Court’s “death is different” scrutiny.
1. Juveniles Are Ineligible for the Death Penalty
With regard to juvenile offenders who commit murder, the Ohio Revised Code provides more
substantive protection than
does the Federal Constitution. In Stanford v. Kentucky, the United States Supreme Court decided
that the Eighth
Amendment’s “evolving standards of decency” are not infringed by the execution of juvenile
offenders as young as age
sixteen. In light of Stanford, the minimum age of eighteen for death eligibility is a significant
substantive protection
provided by the Ohio Revised Code. Indeed, only fifteen of thirty-eight capital punishment states
set eighteen as the minimum
age for death eligibility.
Although the Ohio Revised Code sets the minimum age for death eligibility at eighteen, the
defense retains the burden of
proving this restriction. The defense has the burden of raising the issue of juvenile status, and also
the burden of
production to put forth evidence that the defendant was not yet age eighteen at the time of the
offense.[27] Assuming the issue
of age is then still in dispute, the prosecution carries the burden of persuasion at trial to establish
by proof beyond a reasonable
doubt that the defendant was at least age eighteen at the time of the offense.
The Ohio Revised Code provides this avenue for vacating a death sentence on the matter of age
under the “Appellate
review of death sentence” section. If direct appeal counsel discovers this issue, however, he or
she must litigate in the trial
court, and not the appellate court. Direct appeal counsel who are able to litigate this issue should
also file a motion in the
appellate court requesting to have the direct appeal held in abeyance for the trial court to review
the defendant’s motion to
vacate the death sentence. Moreover, the doctrines of waiver and res judicata should be of no
consequence if the defendant
attempts to bring this claim after the time for litigating either the direct appeal or the state post-
conviction has passed
http://moritzlaw.osu.edu/lawjournal/issues/volume63/number1/wilhelm.pdf

4. Defendant May Try Prior Purposeful Murder Aggravating Circumstance to the Judge
in a Jury Trial