Sunday, September 17, 2023


No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy

That's Section 2903.01(A) of the Ohio Revised Code setting forth the elements of one form of the crime of aggravated murder.   Anyone who is found guilty of doing that faces a minimum of 20 years in prison.  

If the person is also found guilty of what we call a "death specification" (the death specs are set forth in R.C. 2929.04(A)) the person can receive the death penalty. If that happens, and if the sentence is carried out, the prison guards who perform the execution will, of course, have 

purposely, and with prior calculation and design, cause[d] the death of another.

Which, of course, would seem to allow them to be sentenced to prison for a minimum of 20 years and maybe to be sentenced to be killed.

I've made that point before, just as I've pointed out that there's no exception in the law - at least none in either the Ohio Revised Code or in Ohio's case law - for doing the killing at the direction of a judge or a panel of judges.  

As I've also said, ain't nobody gonna get charged with aggravated murder (with or without death specs) for carrying out a court authorized execution.

I've lso pointed out, from time to time, that a substantial number of executions - both in Ohio and elsewhere - are botched, screwed up.  They take too long.  Things go wrong.  Flames shoot out of the head of the guy in the electric chair.  Prison guards have trouble sticking a needle in a vein to inject the lethal drugs.  The drugs don't actually provide the theoretically authorized painless killing. The hanging goes wrong and instead of a quick neck snap the victim dangles choking or gets decapitated.  Sometimes the execution fails completely and the person doesn't die.

And either the powers that be swear, despite the evidence, that nothing went wrong or they promise to double check their protocols and practice better and make sure it won't happen again.

Ho hum

And then I was reading The Faithful Executioner: Life, Death, Honor and Shame in the Turbulent Sixteenth Century, by Joel F. Harrington, history prof at Vanderbilt University.  It's the story of Meister Frantz Schmidt who for some 45 years, from 1573 to 1618, most as the official executioner (and also torturer, by the way) of Nurenberg.  Meister Schmidt was an interesting guy, a second generation executioner who wanted nothing more than to be relieved of the social and legal ostracism that came with the job.  

Of course, executions were public spectacles in those days.  And while Schmidt was apparently really good at what he did, other executioners were not so competent.  You know, they sometimes botched the job, didn't kill smoothly and easily, screwed up somehow.  Harrington quote a report on the 1641 effort by Valentin Deuser to cut off the head of Margaretha Voglin, "an extremely beautiful person of nineteen years" and, oh, a child murderer.  

She was in sorry shape, "ill and weak."  She had to be carried to the chair for her beheading.  Before getting the job done, Deuser apparently stalked around her, waving his sword.  He accidentally hit a bit of wood, sliced a chunk of skin off her head, and knocked her out of the chair. And

since he hadn't hurt her body and she fell so bravely, [the crowd] asked that she be released.

Nope.  Deuser grabbed her, put her back on the chair, took another swipe at her neck, nicked her that time, again knocking her off the chair.  And while she pleaded, "shouting, "Aiee, God, have mercy!" he

hacked and cut at her head on the ground, for which cruel butchery and shameful execution [he] was surrounded by people who would have stoned him to death had nto archers present come to his aid and protected him from the people.

Deuser was arrested and then fired from his job.  But apparently he was not the only screw up.  As Harrington explains,

Mishaps leading to mob violence and lynch justice jeopardized the core message of religious redemption and state authority.  In some German towns and executioner was permitted three strikes (really) before being being grabbed by the crowd and forced to die in place of the poor sinner.

In his concurring opinion in Furman v. Georgia, Supreme Court Justice Thurgood Marshall floated an idea that's become known as the "Marshall Hypothesis."  He thought that 

people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable.

It's been suggested that one way to effect the hypothesis - and then end executions - would be to make them public again.  Looking at the responses to botched executions in renaissance Germany, suggests Marshall may have been on to something.

1 comment:

  1. As I've said before: Firing squad. It's been used successfully in the past, and requires no special equipment or ceremony. No one (to the best of my knowledge) has ever survived the firing squad.

    As to setting up the firing squad, all you really need to provide is a back stop and a pole to bind the target to. I'm betting that if you visited any red neck bar in Toledo, Ohio and told the Friday night crowd that you needed six volunteer shooters to execute some low life scum that had committed (insert heinous crime), and that these shooters would have to bring their own thirty caliber rifle and ammo, you'd get a squad and a backup squad in less than an hour.


    While I used to be a staunch proponent of the death penalty, that is no longer the case. Thanks in part to your essays on the subject, I've altered my position substantially. I think life without parole is a better option in all but the truly sui generis cases.

    As far as public execution, Saudi Arabia has public execution as do several other Islamic countries, and it hasn't caused them to ban the death penalty.