Imagine yourself charged with a capital crime, on trial for your life. You have been convicted and the jury is now hearing evidence in the penalty phase to determine your fate. You are relying on your counsel, the judge, even the prosecutor, to assure you a fair trial. Now imagine that no one in the courtroom knows all of the correct sentencing options. Although the law allows the jury to sentence you to death or to one of several life terms, including life imprisonment without parole, no one knows that life without parole (hereinafter LWOP) is an option.

Although this scenario seems implausible, this is just the circumstance Charles Marshall faced in a Cleveland courtroom in the fall of 1997. When this fateful error was uncovered, the trial judge ordered an untested cure for this mistake: Charles Marshall would receive a new penalty phase trial before a new jury. A brand new amendment to Ohio Revised Code 2929.06, now allowed a different jury, a jury that had not convicted the defendant, to sentence the defendant to death. Thus, State v. Marshall was to become the test case for a new statute.

This article explores and analyzes the two-pronged legal dilemma that confronted the Marshall court: in Ohio, finding the correct sentencing law is often difficult; and a recent amendment to the resentencing portion of that law, S.B. 258, destroys the efficiency that was characteristic of Ohio's previous resentencing framework. Consequently, Part II of this article examines the facts and holding of State v. Marshall and suggests that finding the applicable law must be simplified. Practitioner handbooks are often confusing and incomplete, in part as the Ohio legislature generates an ever-changing body of law. Justice and the lives of human beings demand remedial steps to avert this problem. Part III describes the evolution of Ohio's resentencing law and the recent adoption of Senate Bill 258, amending Ohio Revised Code section 2929.06. Following a brief description of Ohio's bifurcated capital litigation scheme, Part IV asserts that jury penalty retrials pursuant to Senate Bill 258 will lead to more challenges in the courts, may well waste limited judicial and criminal justice system resources, may prove unworkable in practice, and are not likely to serve the interests of justice. And after concluding with the assertion that Senate Bill 258 is unwise, unworkable, and better left alone, Part V highlights the quite illusory benefits of re-seeking death, while noting that vengeful actions often work against healing.