Another Date, Another Voice

Let's start with the question before we get to the really important stuff.

My guess would be that you don't know just where you'll be on May 14.  At school? The office? On Vacation? Home with a cold?  Digging out from a blizzard or a hurricane?  And if by chance you know where you'll be that day, you surely don't know where you'll be at 10 that morning.  Sitting on the toilet reading the newspaper? Standing in the kitchen pouring a cup of coffee or doing the breakfast dishes?  Hanging around the water cooler shooting the shit with some co-workers and talking about the latest James Bond flick? 

What's that?  You actually think you know?  Wow.  Oh, wait.  You thought I meant May 14 this year?

No, May 14, 2015.  Almost 28 months from now. 

Don't feel bad. I don't know where I'll be, either.  Jeff Wogenstahl knows though.  At least, he knows where he's supposed to be: Strapped down to a gurney, needles in his arms, being killed.

This morning the Ohio Supreme Court set the date.  Wogenstahl is now joins Fred Treesh, Steven Smith, Billy Slagle, Harry Mitts, Jr., Ronald Phillips, Dennis McGuire, Gregory Lott, Arthut Tyler, William Montgomery, Raymond Tibbetts, and Warren Henness - the other 11 men in Ohio with very real execution dates.  He's at the end of that list, of course.  Treesh is due to be killed on March 6 of this year, less than two months from now.  Wogenstahl is, once again, looking at 28 months.

Albert Camus said, as I've noted before in this space

What then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be an equivalence, the death penalty would have to punish a criminal, who had warned his victim of the date at which he would inflict a horrible death on him, and who from that moment onward had confined him at his mercy for months. Such a monster is not encountered in private life.

And as I've said after quoting that, I'm not sure he's right about what you can't find in private life.  I am certain, though, that it shouldn't be a competition.  The test of how we should act isn't to see if there's not someone worse somewhere.  Yeah, Hitler oversaw vastly more executions than any governor of any state.  But "Hitler was a whole lot worse" isn't exactly a ringing endorsement.

So Wogenstahl will sit.  And wait.  For 28 months.  While his lawyers will scramble and argue.  And try to save a life.  And while the state of Ohio will try to stop them.

Just another in the line of 12 cases now lined up.

* * * * *

That's the stuff that's just the day-to-day reality of what happens in the courts of the Buckeye State. But there's also this.

When the Justices of the Supreme Court of Ohio raised their hands or said "Aye" or checked a box or whatever it was precisely that they did in selecting and approving May 14, 2015 as the day to kill Jeff Wogenstahl, only six of them did it.

• Chief Justice O'Connor
• Justice Pfeifer
• Justice O'Donnell
• Justice Lanzinger
• Justice Kennedy
• Justice French

The seventh Justice, Justice O'Neill, dissented.

It's not that he thought there was a problem with that date.  It's not that there was some issue that would take longer to resolve.  It's not that maybe Wogenstahl's crime wasn't that bad or that he didn't do it.  None of that.

If there exists a case that is appropriate for the imposition of the death sentence, this case clearly qualifies. 

Well then?

Without expressing an opinion as to appellant’s guilt or innocence, however, I would hold that capital punishment violates the Eighth Amendment to the Constitution of the United States and Article I, Section 9 of the Ohio Constitution.  The death penalty is inherently both cruel and unusual and therefore is unconstitutional. 

Oh.  That.

The time to end this outdated form of punishment in Ohio has arrived.  While I recognize that capital punishment is the law of the land, I cannot participate in what I consider to be a violation of the Constitution I have sworn to uphold.

Which takes some balls.

One vote's not enough, of course.  But it's a start.  A voice.  Another.  Add 'em together, and you've really got something.  (The complete text of Justice O'Neill's dissent is just below the YouTube.  It's pretty short.  You should read it all.

O’NEILL, J., dissenting.
 {¶ 1} I would deny the state’s motion to set an execution date, and I therefore dissent from the order issued by this court.  If there exists a case that is appropriate for the imposition of the death sentence, this case clearly qualifies.  Appellant was convicted of kidnapping a ten-yearold girl from her home, taking her to a secluded area, and stabbing her to death.  75 Ohio St.3d 344, 662 N.E.2d 311 (1996).  There can be no disputing that this was a horrific act that is deserving of the strongest penalty possible.
 {¶ 2} Without expressing an opinion as to appellant’s guilt or innocence, however, I would hold that capital punishment violates the Eighth Amendment to the Constitution of the United States and Article I, Section 9 of the Ohio Constitution.  The death penalty is inherently both cruel and unusual and therefore is unconstitutional.
 {¶ 3} Capital punishment dates back to the  days when decapitations, hangings, and brandings were also the norm.  Surely, our society has evolved since those barbaric days.  The United States is one of just a few civilized countries that still permit state executions.
 {¶ 4} To date, 17 states and the District of Columbia have eliminated the death penalty altogether.  It is clear that the death penalty is becoming increasingly rare both around the world and in America.  By definition it is unusual.
 {¶ 5} As Justice William J. Brennan of the United States Supreme Court stated in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972):

Death is truly an awesome punishment.  The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity.  The contrast with the plight of a person punished by imprisonment is evident.  An individual in prison does not lose “the right to have rights.”

 Id. at 290 (Brennan, J., concurring).
 {¶ 6} Additionally, death, even by lethal injection, is a cruel punishment.  One need
only look at the recent Ohio case of Romell Broom for a demonstration of that proposition.  Cooey v. Kasich, 801 F.Supp.2d 623 (S.D.Ohio 2011).  Although the executioners spent over two hours attempting to find a vein through which to administer the lethal injection, they ultimately failed.  Subsequently, the governor granted a one-week reprieve.  State v. Broom, case No. 1987-1674, available at http://www.sconet.state.oh.us/pdf_viewer/pdf_viewer.aspx?pdf= 651254.pdf.
 {¶ 7} Broom remains on death row today.  A more chilling definition of cruel is hard to imagine.
 {¶ 8} As stated by Justice Brennan in his dissent in Gregg v. Georgia, 428 U.S. 153, 96
 S.Ct. 2909, 49 L.Ed.2d 859 (1976):

This Court inescapably has the duty, as the ultimate arbiter of the meaning of our Constitution, to say whether, when individuals condemned to death stand before our Bar, “moral concepts” require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishment on the rack, the screw, and the wheel, is no longer tolerable in our civilized society.

 Id. at 229 (Brennan, J., dissenting).
 {¶ 9} The time to end this outdated form of punishment in Ohio has arrived.  While I recognize that capital punishment is the law of the land, I cannot participate in what I consider to be a violation of the Constitution I have sworn to uphold.  I must respectfully dissent.