Saturday, May 15, 2010

Checking the List Twice

Ohio's death penalty law took effect in 1981.   The first person executed under the law was Wilford Berry on February 19, 1999.  Since then, the death house at the Southern Ohio Correctional Facility in Lucasville has been busy.  We've murdered 38 men there, including Berry, 5 this year alone.  No other state in the north has killed so many.  No state outside Texas has killed more than one this year.  

I've pointed those things out before.  Ohio really is, at least as far as state killing goes, the Texas of the north.  But you know, when you actually run the numbers you see other things.
Between 1967 and 1977, there were no executions in the United States.  Since a Utah firing squad killed Gary Gilmore on January 17, 1977, there have been 1206.  Texas leads the way with 456.  No other state is close.  (Virginia is the only other state in triple digits.)  
Ohio is number 10 on the list.  At the current pace, Ohio will be number 6 by this time next year.
  1. Texas  - 456
  2. Virginia - 106
  3. Oklahoma  - 92
  4. Florida - 69
  5. Missouri - 67
  6. Georgia - 46
  7. Alabama - 44
  8. North Carolina - 43
  9. South Carolina - 42
  10. Ohio - 38
More telling still, perhaps, is this statistic.  Since Wilford Berry's execution in 1999, we're number 4.
  1. Texas - 292
  2. Oklahoma - 68
  3. Virginia - 45
  4. Ohio - 38.
By this time next year, it looks like Ohio could pass Virginia to be number 3 (though that's nowhere near a sure thing).
Paul Pfeifer, current Ohio Supreme Court justice and one of the architects of Ohio's death penalty law when he was a state senator in 1981 (he's sometimes known as the "father of Ohio's death penalty"), thinks it's time to take a look at what he wrought.  Alan Johnson has the story in today's Columbus Dispatch. 
The "father of Ohio's death penalty," Supreme Court Justice Paul E. Pfeifer, says all current Death Row cases should be reviewed to see which ones warrant execution -- and which should be commuted to life in prison without the possibility of parole.
"There are probably few people in Ohio that are proud of the fact we are executing people at the same pace as Texas," Pfeifer told The Dispatch. His comments came the day after the lethal injection of Michael Beuke, the fifth Ohioan executed this year and the 38th since 1999.
"When the next governor is sworn in," Pfeifer said, "I think the state would be well served if a blue-ribbon panel was appointed to look at all those cases.
"The only reason we have a death penalty is society demands retribution. ... I never made the argument that it was a deterrent. You can't prove it with numbers."
. . .
Pfeifer, a Republican who is unopposed for re-election to a fourth term on the court this fall, emphasized that he is not suggesting that convicted killers are innocent, or that any should be set free.
"The point is whether or not death is the appropriate penalty," he said.
Pfeifer said the majority of the old cases, had they been tried today under current law and societal standards, would not have resulted in capital punishment.
"The number of people we have accumulated on Death Row has been rather staggering," he said. "It's improbable that all of those folks are going to be executed."
Doug Berman thinks Pfeifer's being disingenous.  At Sentencing Law and Policy, Berman quotes a chunk of the Dispatch article (more than I just did) and then adds his own commentary.

This article highlights the tendency of some folks to favor the death penalty more in theory than in reality. Only a grand total of 38 persons have been executed in Ohio in the 30 years since then-legislator Pfeifer sought to bring the death penalty to the state. If Pfeifer and others in Ohio still support the death penalty at all, I have a hard time understanding why the fact that the state is finally getting around to actually applying this penalty should bother him so much.
These comments by Justice Pfeifer lead me to wonder if, in fact, he has become a death penalty abolitionist on the Ohio Supreme Court like Justices Blackmun and Stevens did on the US Supreme Court. If so, I wish he would just be candid like Justices Blackmun and Stevens about his new perspective rather than to make this strange and silly call for a "blue-ribbon panel [to be] appointed to look at all those cases" which have left the state right now with 161 Ohio murderers sitting on death row.
I call the Justice Pfeifer's call for a "blue-ribbon" review panel strange and silly because such a panel arguably already exists in the form of Ohio's Parole Board, which reviews every death row defendant's request for clemency and makes recommendations to the Governor about which cases might merit commuting murderer's sentence from death to something else. To its credit, the Ohio Parole Board conducts open hearings and issues thoughtful recommendations in every capital case in which a death row defendant seeks a reduced sentence. I am not sure what Justice Pfeifer expects a "blue-ribbon" panel to do that would be different that what the Ohio Parole Board already does (though I do suspect it will cost Ohio taxpayers some extra dollars that we can hardly afford with our state's current budget woes).
I don't pretend to know what's in Justice Pfeifer's heart.  We've never had a conversation or even an e-mail exchange.  (I don't twit or do facebook or text messages, so we haven't interacted in any of those ways, either.)  The only times I've ever spoken with him were during oral argument with me standing at a podium in the well of the Ohio Supreme Court and he sitting on high asking questions and preparing to vote on my client's future.  
Berman's a smart guy, and I suppose it's possible he's right. Pfeifer may have become an abolitionist while lacking the courage to say so.  But there's no good evidence to support that view.  (Pfeifer joined in affirming the death penalty in the only capital appeal the Ohio Supremes decided this year.)
More likely, Pfeifer's responding to frustration over what he's been saying for years.  The law has been applied unfairly and inconsistently and expanded beyond any conception he had of how it should be applied and what it should mean at the time he drafted it.  Ohio's, that is, isn't his death penalty law any more - if it ever was.
And while it's certainly true that the parole board reviews every death sentence and makes a recommendation regarding clemency before the actual execution, it's Berman who's being disingenuous when he says those recommendations are "thoughtful."  Moreover, the Board views its charge as determining whether there's some compelling reason to overturn the death sentence.  That's not even close to the question of whether the death sentence is appropriate by today's standards.
As for the financial burden of a "blue-ribbon' panel, every person removed from death row saves the state money.  Find three or four to remove, and the expense of the panel is a wash.  Take off five or six and Ohio's budget woes actually ease.
All that said, the likelihood of any Ohio governor having the inclination (let alone the political will) to pursue a fair and open review of Ohio death cases to determine whether by todays standards, and with truly competent counsel (which certainly ought to be part of any review) death would likely have been imposed.  It is the Justice, I fear, who deceives himself if he thinks few Ohioans favor killing at the pace Texas does.  Just take a look at the comments to the Dispatch article.
Consider, as but one example, the view (admittedly expressed with perhaps less than Shakespearean eloquence) of "Voracious Masticator."

and what FLAT OUT LIES. SAME RATE AS TEXAS ????? Maybe for one week!
Many of the cases are SO SICKENING AND SENSELESS that the only DISGRACE is that it has taken so long.
Obviously this PRIVILEGED piece of trash never had to work a nigh shift at a carry out and wonder if his HEAD WOULD GET BLOWN OFF just for cooperating with the violent monster robbing the place
I have NEVER heard more outrageous statements
Guess with the comfort of running unopposed he feels it's fine to overrule juries based on his PERSONAL AGENDA to corrupt our JOKE of a justice system even further.
This PIECE OF GARBAGE will ROT IN HELL if he succeeds in his mission
FYI, MOST OHIOIANS would be VERY PROUD to KEEP executing SCUM at the same rate as Texas
On the other hand, "lawmiss" hadn't weighed in last I checked, so there's still a chance.

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