THE STATE OF OHIO, APPELLEE, v. GREVIOUS, APPELLANT.
No. 2019-0912
SUPREME COURT OF OHIO
December 9, 2022
Slip Opinion No. 2022-Ohio-4361
Criminal law—Aggravated murder—Appeals—R.C. 2953.08(D)(3)—The portion of the judgment of the court of appeals relating to the constitutionality of R.C. 2953.08(D)(3) is affirmed—Because R.C. 2953.08(D)(3) does not preclude an appellate court from reviewing a constitutional challenge to an aggravated-murder sentence on appeal, the court of appeals erred by declining to review the merits of appellant‘s constitutional challenges to his aggravated-murder sentence—Court of appeals’ judgment affirmed in part and reversed in part and cause remanded to the court of appeals.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Grevious, Slip Opinion No. 2022-Ohio-4361.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2022-OHIO-4361
THE STATE OF OHIO, APPELLEE, v. GREVIOUS, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Grevious, Slip Opinion No. 2022-Ohio-4361.]
Criminal law—Aggravated murder—Appeals—
(No. 2019-0912—Submitted December 7, 2021—Decided December 9, 2022.
APPEAL from the Court of Appeals for Butler County, No. CA2018-05-093, 2019-Ohio-1932.
O‘CONNOR, C.J., announcing the judgment of the court.
{¶ 1} In this discretionary appeal, we consider the constitutionality of
I. Relevant Background
{¶ 2}
{¶ 4} Here, the jury did not unanimously find by proof beyond a reasonable doubt that the aggravating circumstance of Grevious committing the aggravated murder for hire outweighed the mitigating factors, and therefore, it could not recommend that the court impose a death sentence on Grevious. The jury selected from the three available sentencing options noted above and recommended that the trial court sentence Grevious to life imprisonment without the possibility of parole. Pursuant to
{¶ 5} Grevious appealed his sentence, challenging
{¶ 6} We initially declined to accept Grevious‘s discretionary appeal. See 157 Ohio St.3d 1419, 2019-Ohio-3797, 131 N.E.3d 958. However, on reviewing Grevious‘s motion for reconsideration, we accepted the appeal on the following proposition of law and held the case for our decision in State v. Kinney, 163 Ohio St.3d 537, 2020-Ohio-6822, 171 N.E.3d 318:
R.C. 2953.08(D)(3) must be declared unconstitutional for the reason that it violates appellant‘s and other similarly situated citizens’ due process and equal protection rights under the Eighth and Fourteenth Amendments to the United States Constitution by prohibiting appellate courts from reviewing sentences imposed for aggravated murder.
II. Analysis
{¶ 7} Grevious requests that we declare
{¶ 8} Grevious argues that because of
A. Standard of Review
{¶ 9} As always, we begin our review of a statute with the presumption that it is constitutional. See
B. R.C. 2953.08
{¶ 10} Before turning to the merits of Grevious‘s arguments, we first review the statutory scheme challenged here.
R.C. 2953.08(A)(1) and (5) describe the grounds for appeal if certain sentences are imposed pursuant toR.C. 2929.14 or2929.142 .R.C. 2953.08(A)(2) applies to sentences including a prison term imposed for a fourth- or fifth-degree felony or a felony drug offense thatcould be subject to only a community-control sanction under R.C. 2929.13(B) .R.C. 2953.08(A)(3) applies to sentences imposed pursuant toR.C. 2971.03 .R.C. 2953.08(C) applies to consecutive sentences imposed underR.C. 2929.14(C)(3) and certain additional sentences imposed underR.C. 2929.14 .
Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952, at ¶ 20.
{¶ 11}
{¶ 12} More recently, this court decided in Patrick that
C. Grevious has standing to challenge R.C. 2953.08
{¶ 13} The parties agree that the sole issue before this court is whether
{¶ 14} To have standing to challenge the constitutionality of a statute, a party must have a direct interest in the statute of such a nature that his or her rights will be adversely affected by its enforcement. State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, ¶ 30, citing Anderson v. Brown, 13 Ohio St.2d 53, 233 N.E.2d 584 (1968), paragraph one of the syllabus. Generally, this means that a party challenging a statute on the basis of equal protection must be a member of the class that the statute allegedly discriminates against and must have been injured by it. N. Canton v. Canton, 114 Ohio St.3d 253, 2007-Ohio-4005, 871 N.E.2d 586, ¶ 11, citing State ex rel. Harrell v. Streetsboro City School Dist. Bd. of Edn., 46 Ohio St.3d 55, 62-63, 544 N.E.2d 924 (1989), and Palazzi v. Estate of Gardner, 32 Ohio St.3d 169, 512 N.E.2d 971 (1987), syllabus.
{¶ 15} It is true that since we accepted Grevious‘s discretionary appeal,
D. Equal protection
{¶ 16} Although Grevious now purports to challenge the constitutionality of
{¶ 17} The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that “[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” In essence, the Equal Protection Clause requires the government to treat individuals in a manner similar to others in like circumstances, see Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), and “prohibits treating similar groups differently based on criteria that are unrelated to the purpose of the law,” State v. Noling, 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141, ¶ 13, citing Johnson v. Robison, 415 U.S. 361, 374, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). Importantly, the Equal Protection Clause should not be applied to “‘deny to States the power to treat different classes of persons in different ways.‘” Eisenstadt v. Baird, 405 U.S. 438, 446-447, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), quoting Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).
{¶ 18} A party may challenge a statute as being unconstitutional on its face and as applied to a particular set of facts. See Ams. for Prosperity Found. v. Bonta, ___ U.S. ___, 141 S.Ct. 2373, 2385, 210 L.Ed.2d 716 (2021). The former method—facial challenge—is the more difficult challenge on which to succeed, because the challenger must establish that there exists no set of circumstances under which the statute would be valid. See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). In an as-applied challenge, on the other hand, the challenger contends that the statute‘s application violates his or her constitutional rights under the circumstances of a particular case. See United States v. Christian Echoes Natl. Ministry, Inc., 404 U.S. 561, 565, 92 S.Ct. 663, 30 L.Ed.2d 716 (1972). Grevious argues that
{¶ 19} Since neither party argues that a fundamental right or a suspect class is implicated in this case, the correct standard for this court to apply is that of rational basis. See McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 8; Estelle v. Dorrough, 420 U.S. 534, 538, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975) (“this Court in dealing with equal protection challenges to state regulation of the right of appeal in criminal cases ha[s] applied the traditional rational-basis test“). The rational-basis standard is the test most deferential to the legislature, see Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 32, and it requires a court to uphold a legislative classification if the classification is rationally related to a legitimate governmental purpose, Roseman v. Firemen & Policemen‘s Death Benefit Fund, 66 Ohio St.3d 443, 447, 613 N.E.2d 574 (1993); Noling at ¶ 14, citing Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988). Stated differently, the Equal Protection Clause requires that “in defining a class subject to legislation, the distinctions that are drawn have ‘some relevance to the purpose for which the classification is made.‘” Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966), quoting Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966). The party challenging the constitutionality of the statute bears “the burden to negate ‘any reasonably conceivable state of facts that could provide a rational basis for the classification.‘” Noling at ¶ 13, quoting Fed. Communications Comm. v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).
1. The parties’ equal-protection arguments
{¶ 20} Grevious contends that “[b]ecause
{¶ 22} We must first clarify a few aspects of Grevious‘s arguments. First, at points in his briefing, Grevious seems to base his equal-protection claim also on the distinction between offenders with noncapital sentences for aggravated murder and offenders with death sentences for aggravated murder. But Grevious did not raise this argument below, and therefore, it is beyond the scope of this appeal. See State v. Wintermeyer, 158 Ohio St.3d 513, 2019-Ohio-5156, 145 N.E.3d 278, ¶ 10 (“a party ordinarily may not present an argument on appeal that it failed to raise below“).
{¶ 23} Second, Grevious classifies himself as a member of the class of offenders with noncapital sentences for aggravated murder who are barred from appellate review under
{¶ 24} And lastly, Grevious clearly acknowledges in portions of his briefing that
{¶ 25} Grevious directs this court‘s attention to our decision in Noling, 149 Ohio St.3d 327, 2016-Ohio-8252, 75 N.E.3d 141. In Noling, the challenged statute permitted an offender sentenced to death to appeal
{¶ 26} We concluded in Noling that the statute at issue in that case violated state and federal principles of equal protection, because no legitimate purpose existed to support the statute‘s “two-track appellate process” that discriminated between capital and noncapital offenders. Id. at ¶ 31. In doing so, this court rejected the attorney general‘s argument that capital and noncapital offenders were not similarly situated, because the differences between the offenders cited by the attorney general focused on the imposition of a sentence. Id. at ¶ 19. We noted that the challenged statutory scheme concerned applications for postconviction DNA testing, not the imposition of a sentence, and thus the fact that certain applicants were sentenced to death and others to prison terms was “nearly irrelevant under the statute.” Id. Because the capital and noncapital offenders followed the same application process for DNA testing and the applications were subject to the same level of scrutiny in the trial court, this court determined that the classes were similarly situated. Id. at ¶ 18-19.
{¶ 27} Grevious contends that
{¶ 28} Unlike in Noling, the classes at issue here are not similarly situated with regard to
2. Legislative purpose and language of R.C. 2953.08
{¶ 29} The General Assembly enacted
{¶ 30} Several of the grounds for appeal set forth in
{¶ 31} In all the above instances, the grounds for appeal involve the trial court‘s exercise of its broad discretion, and in exercising that discretion, the trial court follows particular statutory sentencing requirements. See Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952, at ¶ 22. This court has noted that
{¶ 32} In contrast,
3. The trial court lacks discretion when sentencing an offender for aggravated murder pursuant to R.C. 2929.03(D)(2)(a) and (c)
{¶ 33} As discussed above, Grevious was sentenced pursuant to
{¶ 34} The jury ultimately recommended that Grevious be sentenced to life imprisonment without the possibility of parole. And as required by the statutory scheme, the trial court had no choice but to impose that recommended sentence. See
{¶ 35} In contrast, the other felony offenses for which
{¶ 36}
{¶ 37} For these reasons, Grevious has failed to demonstrate that
{¶ 38} We pause to emphasize that this conclusion regarding Grevious‘s equal-protection claim is a narrow one that is limited to the particular statutory provision at issue here. Grevious has failed to meet his burden to negate “any reasonably conceivable state of facts that could provide a rational basis,” Beach Communications, 508 U.S. at 313, 113 S.Ct. 2096, 124 L.Ed.2d 211, for
E. Grevious‘s due-process and Eighth Amendment challenges to R.C. 2953.08(D)(3) also fail
{39} Turning to Grevious‘s due-process claim, he provides only a cursory argument in his briefing: “[B]y prohibiting appellate courts from following appropriate procedures to ensure fairness in sentencing,
{40} We also conclude that Grevious‘s Eighth Amendment challenge to
In my view, [this court‘s] jurisprudence provides good reason to
question whether [ R.C. ]2953.08(D)(3) really “means what it says“: that a life-without-parole sentence, no matter how arbitrarily or irrationally imposed, is shielded from meaningful appellate review. Our Eighth Amendment jurisprudence developed in the capital context calls into question whether a defendant should be condemned to die in prison without an appellate court having passed on whether that determination properly took account of his circumstances, was imposed as a result of bias, or was otherwise imposed in a “freakish manner.”* * *
This case did not present either the Ohio courts or this Court the occasion to decide this important question. I believe the Ohio courts will be vigilant in considering it in the appropriate case.
(Citations omitted.) Id. at 1060-1061 (Sotomayor, J.). Grevious opined below that this is the appropriate case in which to consider this Eighth Amendment issue and, without any additional arguments, requested that the court of appeals strike down
{41} But the above-quoted statement of Justice Sotomayor was made prior to this court‘s decision in Patrick. And despite having the benefit of our decision in Patrick during his briefing to this court, Grevious has continued to center his Eighth Amendment challenge on the premise that, “as applied to [life-without-parole] sentences,
III. Conclusion
{42} For the foregoing reasons, we affirm the portion of the judgment of the Twelfth District Court of Appeals relating to the constitutionality of
Judgment affirmed in part
and reversed in part
and cause remanded.
FISCHER, J., concurs.
DONNELLY, J., concurs, with an opinion.
DEWINE, J., concurs in judgment only, with an opinion joined by BRUNNER, J.
____________________
DONNELLY, J., concurring.
{43} I join the lead opinion, as far as it goes. Applying State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952, the lead opinion correctly determines today that
{44} Even apart from any constitutional concerns about a particular sentence, I agree with Grevious that eliminating any “check on a trial court‘s discretion and possible abuse” in sentencing enables “gross abuse of discretion.” As Grevious points out, this is especially so in cases such as this one, in which the jury had the exclusive responsibility of choosing a sentence but the trial court provided the jury with no guidance regarding the overriding purposes of felony sentencing under
{45}
{46} Additionally,
DEWINE, J., concurring in judgment only.
{47} I agree with the lead opinion that Michael Grevious has failed to demonstrate that
{48} The lead opinion says that to prevail, “Grevious must establish ‘beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.‘” Lead opinion, ¶ 9, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. In doing so, it repeats verbiage that this court has often affixed to decisions dealing with constitutional challenges. But in my view, it is time that we remove that worn coin from circulation. Beyond-reasonable-doubt is an evidentiary standard that is poorly suited to the legal question whether a legislative enactment comports with the Constitution. This is probably why the standard is often repeated but not actually applied by this court. And if the standard were to be applied, it would undercut the protections for individual liberties guaranteed by the federal and state Constitutions.
I. Background: beyond-reasonable-doubt as a standard for assessing constitutionality
{49} The beyond-reasonable-doubt standard comes to us from criminal law. Scholarship traces the concept back to the “inquisitorial criminal procedure” that was “devised by Pope Innocent III circa 1199.” Thomas P. Gallanis, Reasonable Doubt and the History of the Criminal Trial, 76 U.Chi.L.Rev. 941, 945-946 (2009). That system operated under the canon in dubio pro reo—“in doubt you must decide for the defendant.” James Q. Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial 122 (2008). In the colonies, John Adams invoked the beyond-reasonable-doubt concept in his 1770 defense of the Redcoat perpetrators of the Boston Massacre. Id. at 193.
{50} American courts have always used beyond-reasonable-doubt as the evidentiary standard in criminal cases. See Coffin v. United States, 156 U.S. 432, 456-458 (1895). Ohio is no exception. See Farrer v. State, 2 Ohio St. 54, 69 (1853) (“A mere preponderance of testimony as to the guilt of a person, will not satisfy the law; there must be such a preponderance as removes all reasonable doubt“).
{51} The use of the beyond-reasonable-doubt standard to assess constitutionality has a more recent pedigree. It is most often associated with James Bradley Thayer, who believed that courts ought to be extremely deferential to the judgments of legislatures. In an influential article, Thayer postulated that courts should not invalidate statutes unless convinced “beyond a reasonable doubt” that the law is incompatible with the constitution. The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.L.Rev. 129, 144 (1893). Courts could invalidate legislation only “when those who have the right to
{52} A survey of our caselaw shows that our first invocation of the beyond-reasonable-doubt standard in a constitutional case came in 1877: “the validity of a statute [is] to be upheld and sustained, unless its repugnancy to the constitution appears beyond a reasonable doubt,” McGill v. State, 34 Ohio St. 228, 245. And we often—but not consistently—invoked the standard in the decades that followed. See, e.g., State ex rel. Atty. Gen. v. Toledo, 48 Ohio St. 112, 132-133, 26 N.E. 1061 (1891); Miami Cty. v. Dayton, 92 Ohio St. 215, 222-223, 110 N.E. 726 (1915) (“courts * * * have held that the conflict must be ‘beyond a reasonable doubt‘“); Dickman, 164 Ohio St. at 147, 128 N.E.2d 59.
{53} There is a lot to be said for the Thayerian notion that judges should not lightly strike down legislative enactments. Our role is not the legislative role, and we must be careful that we do not under the guise of judicial review substitute our policy preferences for that of the legislature. Thus, it is appropriate that we start with the presumption that a law is constitutional, as the lead opinion does today. See lead opinion at ¶ 9; see also Cincinnati, Wilmington & Zanesville RR. Co. v. Clinton Cty. Commrs., 1 Ohio St. 77, 83 (1852). It is also appropriate that we invalidate legislation only when it is clear that a duly enacted law conflicts with the Constitution. See Calder v. Bull, 3 U.S. 386, 399 (1798) (courts should not exercise authority to hold a law unconstitutional “but in a clear and urgent case“); Cincinnati, Wilmington & Zanesville RR. Co. at 82 (“it is only when * * * clear incompatibility between the constitution and the law appear, that the judicial power can refuse to execute it“); Philip Hamburger, Law and Judicial Duty 311 (2008); Jeffrey S. Sutton, Who Decides? States as Laboratories of Constitutional Experimentation 56 (2021) (courts historically “deployed conventional tools of interpretation in construing constitutions and would invalidate a statute only if a clear conflict arose between the two“); John O. McGinnis, The Duty of Clarity, 84 Geo.Wash.L.Rev. 843, 880-881 (2016).
{54} But while it is important that we respect the principles of restraint that are inherent in our system of separation of powers, it is time that we stop saying (falsely) that we will only strike down a law that is unconstitutional beyond a reasonable doubt. Let me explain why.
II. Retiring the beyond-reasonable-doubt standard in constitutionality cases
{55} We have been appending beyond-reasonable-doubt language to the front end of our constitutional cases for a long time, so why stop now? By my count, there are at least three good reasons.
A. The beyond-reasonable-doubt evidentiary standard is a poor fit for assessing whether a statute comports with the Constitution
{56} The most obvious problem with beyond-reasonable-doubt as a measure of constitutionality is that it is an extremely poor fit for the task. Beyond-reasonable-doubt makes sense as an evidentiary standard. It refers to a quantum of proof. It is something that, in theory at least, one could assign a number to. We will only convict someone if we are x percent sure of his guilt. (We might debate the number—is it 99.9 percent or 99.9999 percent? But in theory, it is something quantifiable.) It is the risk of error in a criminal conviction
{57} The same is not true for constitutional judgments. There are not degrees of constitutionality—the Constitution, unlike evidentiary proof of a fact, does not operate on a continuum. “The Constitution is the superior law.” State ex rel. Campbell v. Cincinnati St. Ry. Co., 97 Ohio St. 283, 309, 119 N.E. 735 (1918). We don‘t add up the evidence and decide to what degree we are certain that something is unconstitutional. Rather, we look at things like text, precedent, and history to reach our best considered judgment as to whether a law violates the Constitution. That question is “susceptible of only two answers“—yes or no. United States v. Watson, 623 F.2d 1198, 1202 (7th Cir. 1980).
{58} As a quantum of proof, the beyond-reasonable-doubt standard fits comfortably with the maxim that “it is better that ten guilty persons escape, than that one innocent suffer.” 4 William Blackstone, Commentaries on the Laws of England 352. But we would hardly say that it is better that ten unconstitutional laws be upheld than one constitutional law be struck down. See Varner v. Martin, 21 W.Va. 534, 542 (1883) (“it has been said, that it is better that ninety-nine guilty persons should escape than that one innocent person should be condemned. But * * * [i]t is not better, that the Constitution should be violated ninety and nine times by the Legislature than, that the courts should erroneously hold one act of the Legislature unconstitutional“).
{59} The point of an evidentiary standard of proof is to provide a benchmark by which a fact-finder can operate. Thus, when we say to a judge that he or she must determine whether there is probable cause to believe that someone committed a crime or whether the person is guilty beyond a reasonable doubt, we have conveyed a helpful guide to decision-making. We also provide a standard by which a superior court can review that decision. But when we ask a judge to decide whether something is unconstitutional beyond a reasonable doubt, we ask the judge to operate under a metric that is not comfortably suited to the task at hand.
B. We don‘t seriously employ beyond-reasonable-doubt as a constitutional standard
{60} Thayer‘s conception was that there would be “many cases” in which judges would “leav[e] untouched a determination of the legislature,” not because the judge believed the law to be constitutional, but simply because the judge had some reasonable doubt as to the matter. Thayer, 7 Harv.L.Rev. at 151. But that is not how we operate.
{61} If this court truly employed a beyond-reasonable-doubt standard, we should be able to identify decisions stating that in the court‘s best judgment, the enactment was unconstitutional, but that because the matter is not free from doubt, we uphold the enactment. But I am not aware of a single recent case in which the court has done this. So either this court‘s justices don‘t really follow that standard, or when they do, they are unwilling to show their work. And that by itself suggests the inadequacy of beyond-reasonable-doubt as a constitutional standard.
{62} Sure, it is easy enough to find recent cases in which this court has announced beyond-reasonable-doubt as the standard it will use for its decision. See, e.g., State ex rel. Maras v. LaRose, ___ Ohio St.3d ___, 2022-Ohio-3852, ___ N.E.3d ___, ¶ 12; Neiman v. LaRose, ___ Ohio St.3d ___, 2022-Ohio-2471, ___ N.E.3d ___, ¶ 56; League of Women Voters of Ohio v. Ohio Redistricting Comm., 167 Ohio St.3d 255, 2022-Ohio-65, 192 N.E.3d 379, ¶ 76; Put-in-Bay v. Mathys, 163 Ohio St.3d 1, 2020-Ohio-4421, 167 N.E.3d 922, ¶ 11; Haight v. Minchak, 146 Ohio St.3d 481, 2016-Ohio-1053, 58 N.E.3d 1135, ¶ 11. But there is no indication in these cases that the standard played any role whatsoever in this court‘s analysis. See, e.g., Neiman at ¶ 101-102 (Fischer, J., dissenting) (“the majority opinion seems to ultimately apply some lesser burden of proof, even though it purports to apply the beyond-a-reasonable-doubt burden of proof“). Meanwhile, in other recent cases, the court has made constitutional judgments without any mention of the standard at all. See, e.g., State v. Drain, ___ Ohio St.3d ___, 2022-Ohio-3697, ___ N.E.3d ___; State v. O‘Malley, ___ Ohio St.3d ___, 2022-Ohio-3207, ___ N.E.3d ___; Portage Cty. Educators Assn. for Dev. Disabilities-Unit B, OEA/NEA v. State Emp. Relations Bd., ___ Ohio St.3d ___, 2022-Ohio-3167, ___ N.E.3d ___; Newburgh Heights v. State, ___ Ohio St.3d ___, 2022-Ohio-1642, ___ N.E.3d ___.
{63} So the bottom line is that while the beyond-reasonable-doubt standard is something that we have rotely pasted into constitutional opinions, there is no indication that we actually use it.
C. Application of the beyond-reasonable-doubt standard would deprive citizens of the liberties guaranteed by our federal and state Constitutions
{64} It is a good thing that we don‘t really apply the beyond-reasonable-doubt standard in constitutional cases. If we did, we would deprive citizens of the rights guaranteed to them by our federal and state Constitutions.
{65} Think about how the standard would work if it were truly followed. A judge is confronted with a case featuring a law that infringes on a constitutional right. The judge is convinced that the law violates the Constitution, but in fairness, he has some doubts—perhaps a dissenting colleague has raised fair counterarguments. The judge feels obligated to uphold the law even though he believes it is unconstitutional. The power of the state is aggrandized and the fundamental rights of the citizens are diminished.
{66} Now consider how the standard would work in the context of a system of stare decisis. The next time an issue arises, the judge is bound to follow precedent from the prior case upholding the law‘s constitutionality. As Sixth Circuit Court of Appeals Chief Judge Sutton explains:
Every decision upholding the law creates the risk of a diminished data point, a new binding precedent that expands the world of plausible explanations for upholding still more laws. * * * The inaction of courts over time permits legislatures to enact more dubious laws. Each non-invalidation of an unconstitutional law makes the next exercise of lawmaking power easier to withstand the supposed scrutiny of judicial review.
Sutton, Who Decides?, at 62.
{67} In criminal law, the beyond-reasonable-doubt standard is “essential for the protection of life and liberty,” Davis v. United States, 160 U.S. 469, 488 (1895). There, the standard works for the people and against the government. But in the constitutional-review setting, the beyond-reasonable-doubt standard diminishes constitutional guarantees and “indulges every reasonable presumption against the citizen.” Sadler v. Langham, 34 Ala. 311, 321 (1859); see also Varner, 21 W.Va. at 542-543.
{68} So not only is it true that we don‘t really follow the beyond-reasonable-doubt
D. What‘s the big deal?
{69} All this invites another question: If we just pay lip service to the beyond-reasonable-doubt standard and do not really follow it, why should anyone care? Why waste the paper this opinion is written on?
{70} The answer is that we ought to be honest about what it is we do as judges. When we recite standards but do not actually follow them, we do a disservice to those who read our decisions and those who litigate before this court. We invite litigants to frame their arguments in terms that are not meaningful to our review. And we mislead our readers by suggesting that issues that we struggle with, and ultimately make our best considered judgments about, are easy decisions that are free from any reasonable doubt.
{71} So in my view, it is time we stop reciting a standard that we don‘t use, that is a poor fit for what we do, and that would be dangerous if we actually did use.
III. The case at hand
{72} Now that we are done with the aside, let‘s return to the case at hand. I have little difficulty joining the court‘s judgment.
{73} Grevious claims that
{74} Traditional justifications for criminal punishment like deterrence and retribution justify the General Assembly‘s choice in
{75} Separately, Grevious claims that his sentence violates the Equal Protection Clause because it is the product of de facto racial discrimination. Grevious does not cite a single part of the record to support that claim. He instead relies exclusively on statistical studies that document disparities in sentencing black men versus other demographics and suggests that the studies “compel an inference” that his “sentence rests on purposeful discrimination.”
{77} Finally, Grevious raises due-process and Eighth Amendment claims but offers little in support of either claim. The lead opinion correctly concludes that these claims fail as well.
IV. Conclusion
{78} I agree with the lead opinion that Grevious has failed to establish a constitutional violation. But this court should stop saying that it will sustain a constitutional challenge only when a litigant establishes a violation “beyond a reasonable doubt.” I concur in judgment only.
BRUNNER, J., concurs in the foregoing opinion.
Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa Concannon, Assistant Prosecuting Attorney, for appellee.
Koenig & Owen, L.L.C., and Charles A. Koenig, for appellant.
Timothy Young, Ohio Public Defender, and Craig M. Jaquith, Assistant Public Defender, urging reversal for amicus curiae, Office of the Ohio Public Defender.