May 6, 1986.  Warren, Ohio.  Raymond and Doris Montgomery.  He 77, she 80.  Both dead.  Stabbed to death in their home.

Later that day, Charles Lorraine confessed to killing and robbing the couple.  Then he went to a bar and, with some of the money he took, bought drinks for some friends. It was his last day of freedom.  He was 19 years old then.  He'll be 52 in October.

December 9, 1986, seven months and three days after the killings, Lorraine was sentenced to be killed.  He's been on death row ever since:  32 years, 1 month, and 10 days as I type this just after midnight the morning of June 16.

I don't know Charles Lorraine.  I never represented him.  I don't know much about him.  I do know this.  It's been 32 years, 1 month, and 10 days.  He was 19 then.  He'll be 52 in October.

Oh, and I know this.  Yesterday morning, the Ohio Supreme Court, without dissent, granted the motion of the Trumbull County Prosecutor and set a date for Lorraine to be killed:  March 15, 2023.  
Nearly 5 years from now.  More than 36 years from the day he was sentenced to die.  Nearly 37 years from the date of the killings.

Let's do that again.

• March 15, 2023.  
• Nearly 5 years from now.  
• More than 36 years from the day he was sentenced to die.  
• Nearly 37 years from the date of the killings.

And I do know that I'm pretty much a broken record here, but I gotta say it:  Even if you believe in the death penalty, even if you believe that it can be morally justified or (and?) that it discourages murder.  Even if you think it's a damn good idea as a matter of principle.  Even if all that.

36 fucking years?

My god.  What's the point?  And who, exactly, are we killing?  I mean, whatever else, the Charles Lorraine of today is not the Charles Lorraine who murdered Doris and Raymond Montgomery on May 6, 1986, not the Charles Lorraine who was sentenced to die on December 9 of that year.  36, nearly 37 years, they make a difference.  Who we were is not who we are.

And who we'll kill is not who we sentenced to die.

Really, it's enough.    

Doris and Raymond Montgomery

Charles Lorrine

   Charles Lorraine Death Entry & Warrant by jmgamso on Scribd

On Victims and Killers and Survivors. On Life and Death. On Forgiveness. - UPDATE

Lexington, Kentucky.  April.  2015.  An apartment complex.  Salahuddin Jitmoud delivering a pizza. 

Well, not exactly.  Exactly, Jitmoud was delivering his life (so the cops and courts said) to 3 men who were looking to rob pizza delivery guys.  He was 22-years old.

I don't know who actually killed Jitmoud.  Apparently the actual killer hasn't been indicted.  But Alexander Relford, according to the prosecutor (via Marwa Ettagouri at the Washington Post), "set up the robbery, he provided the knife, he tampered with evidence."  And there's the fuck-you factor.

[H]e is the one who ate the pizza afterward.

Relford got 31 years.  

• Complicity in murder.
• Complicity in robbery.
• Attempted tampering with evidence.

He'll be out when he's 55.

In the criminal courts, that's little more than business as usual.  

What's not is what Abdul-Munim Sombat Jitmoud did.  He's the father of Salahuddin Jitmoud.  The kid who was murdered for his pocket change and a pizza.  He's the one who gives the lie to pretty much everything the haters want you to hear.

A Brief Digression

The case involved a shooting.  There were two victims - one intended, one an innocent bystander.  (Shit happens when bullets fly.)    

Wait, did I say there were two victims?  Only sort of.  Oh, the defendant was separately charged for each shooting.  And there's no question they were both shot (one in the leg, the other in the hand).  But the accidental victim of the gunshot?  She couldn't identify anyone as a shooter.  All she knew, all she could tell the cops was that the guy who shot her wore a red hoodie.

But the defendant didn't have a red hoodie. 

The detective said, testified under oath, that she wouldn't cooperate.  All she'd tell us about the shooter, the detective said, is that he wore a red hoodie.  And since she wouldn't cooperate, the detective said, she wasn't an "actual victim."  

Really.  That was the testimony.

End Digression

You hear that Muslims are terrorists.  The President tells you that thousands cheered in the streets in New Jersey as they watched the World Trade Center collapse.  They say it's all about hate.

Talk to Abdul-Munim Sombat Jitmoud.  Whose son was killed for a few bucks and a pizza.  Ask him.  Or just note his words, from the witness stand, at the sentencing of Alexander Relford who was at the least complicit in the murder of his son.  

Forgiveness is the greatest gift of charity in Islam. . . . I don't blame you, I blame the Devil, who misguided you to do such a horrible crime.  

There are things you rarely see in court.  

Teary-eyed after the father's gesture, Fayette County Circuit Judge Kimberly Bunnell called for a break in the hearing.

And then, after court resumed, after Relford apologized, after that.

Then the father and the convict hugged, Relford wiping his face with tissues as Jitmoud wrapped his arms around the 24-year-old.

In a couple of hours, the good people of the State of Ohio will be putting Alva Campbell to death.  It's pretty clear it won't go well. The nurses who examined his arms for the execution team said his veins can't support the needles. He'll be struggling his way to the death house with his walker.  I assume he'll still be wearing his colostomy bag.   They're giving him a special pillow so he won't have trouble breathing while they kill him.  (Yes, you read that right.) 

His will be the 56th state-sponsored murder in Ohio since we got back in the killin' business in 1999.  We've got folks lined up and set to go until well into 2022.

As I said, Relford will get out when he's 55

UPDATE

Execution failed.  They couldn't find a vein.  They're going to try again, another time, if they can manage to keep him alive until then.  It'll get easier, of course, 69-year-old, terminally-ill men routinely have their veins get bigger and sturdier over time.

I can't help but note that Ohio is now the only state to have failed even once to complete an execution since the bungled electrocution of Willie Francis in 1946.  And we've now failed twice.

Just Look at Them and Sigh

It was April 2, 1997, just over 20 years ago.  A sheriff's deputy was taking Alva Campbell from jail to the courthouse where he was set to be arraigned on a charge of aggravated robbery.

But Campbell broke away, stole the deputy's pistol, and ran off.  Charles Dials was driving by in his pickup.  Campbell stopped the truck, jumped in at gunpoint, and drover around with Dials in the passenger seat for a few hours.  Then he had Dials get down on the floor and shot him twice in the head.  (It wasn't Campbell's first killing.  He'd been paroled five years earlier after serving 20 years on a first degree murder conviction.)

Campbell drove around some more, stole another car, though that driver escaped.  He tried unsuccessfully to steal another car, again the driver escaped.  Police caught him hiding in a tree.  He surrendered and confessed.

He's been on death row since 1998.  The State of Ohio plans to kill him on November 15.

I could tell you about his childhood of physical and sexual abuse (even the prosecutor concedes it was terrible).  I could tell you that he's remorseful now, that he claims he's changed, that he sees the world differently than he did before.  I could tell you that he's had a pretty good disciplinary record in prison.  I could . . . .  

Ah, the hell with it.  You know all that.

What I want to consider, want you to consider, is whether Alva Campbell should now, in under two weeks, die for what he did to Charles Dials.  Die for that, because there's no question he'll die (we all do).  And there's no question he'll die in prison.  The question, as always, is the mechanism of death.

And on that point, and in this case, it's worth looking for a bit at Alva Campbell today.  That's 69-year-old Alva Campbell. 

He moves with a walker.  That's a colostomy bag on his hip.  He gets four breathing treatments a day to keep him going.  And he may have lung cancer.  

They plan to strap him to a table, but he won't be lying down.  That's too hard on his body, so he'll be propped up somehow, sitting.  

And then they're gonna stick needles in his veins and pump poison --

Oh, wait.  They can't do that.  

See, Ohio's fucked up so many executions because our prison guards aren't really competent to do this shit.  So we have some special procedures to make sure the killin' will go well.  For instance, we have nurses assess his veins to be sure that they guards can get the needles in and set.  But damn.  They report that Campbell's veins aren't up to the task.  And, of course, he's allergic to the first drug they're using.

His lawyers suggested death by firing squad.  (Bad veins aren't an issue for death by bullet.)  But of course that's not a legal method of killin' here in the Buckeye State, and who knows if the General Assembly would actually pass a law or if Governor Kasich would sign it.  Anyway, the judge said no.

And so, here's the question.

What, exactly is the point?  

Alva Campbell's gonna die soon.  He says his doctors have told him he has 6 months to a year.  Sure, that's longer than a week and a half, but not all that much longer.  And it's not like he's livin' high on the hog.  His life, what there is of it, pretty much sucks.

A few weeks ago, the Parole Board held it's clemency hearing for Campbell.  

Then they voted 11-1 against recommending clemency.  Clemency was not, the eleven said, in "the interests of justice."*  Sure he had an horrific background, but he has a "disturbing propensity to engage in extreme and senseless violence."**  The one disagreed, pointing to that horrific background. 

So, now that the Board has spoken, Governor Kasich can do what he wants.***  Which brings me back around.

See, the plan is to kill Alva Campbell not because he deserves to die.  But because he deserves to be killed.  

Because it's important that he not be allowed to die of natural causes or any way other than by drugs lawfully administered by prison guards.  Natural causes?  Feh.  That's God or Nature or just the way things go.  Suicide?  Can't allow that.  Those other options would cheat the hangman, deny the good people of Ohio the vengence justice they deserve to inflict. 

And so the old man with the colostomy bag on his hip, with four treatments a day so he can breathe, with veins that can't support the needles they'll be using to push the drugs . . . .

Aw, fuck it.

Dear Governor Kasich:
Please just let Alva Campbell die in his own, and quickly approaching, good time.  It's too late to teach him a lesson.  And killing the old, rapidly failing guy won't teach anyone else, either.  Except, maybe, that we can be as cold-hearted now as he was then.  And that we should be.
Just deserts, and all.

Teach your children well.  Of course, that's not exactly the lesson Crosby, Still, Nash, & Young had in mind.  






-----------
* Whatever those "interests" may be.  The Board didn't explain.  It never does.  Presumably they're kind of like Justice Stewart's obscenity: known when seen but inexplicable.

** Or at least he did.

*** A Board recommendation one way or another is a legal requirement in Ohio before the Governor can grant clemency, but the Gov has no obligation to follow the recommendation.  Mostly, they do, of course.  It's good to let the Board take the heat one way or the other.  But Ted Strickland commuted a sentence when the Board said not to and refused to commute one when the Board said he should.

The Nooses Tighten -- UPDATE

As I type this, it is a little after 1 in the morning in Ohio.  In just under 9 hours, Ron Phillips will be killed at the Southern Ohio Correctional Facility in Lucasville.

The killers will be a group of prison guards.  It's duty they've volunteered for.  They've chosen, for whatever reason, to kill a man for whom they hold no personal animus, a man who's done them no personal wrong.

Those guards won't be acting alone.  Killing Ron Phillips wasn't their idea, after all.  It was the prosecutor who decided he should be killed and the jurors who agreed.  The trial judge signed off on it.  So did appellate judges, justices of the Ohio Supreme Court, judges and justices in federal court. 

The Parole Board was cool with it.  So, it seems, is Governor Kasich who's skipping opening day at the state fair to oversee the murder.

It doesn't need to happen.  We've managed this long without killing him or anyone else.  No need to start up the pumps again.  Thing is, it's not about need.  It's desire.  They want to kill him.  Nothing personal of course.  Not for most of them.  It's calculated.  A dispassionate decision.

Oh, the courts could still call a halt.  So could the Governor who's received petitions with somewhere close to 100,000 signatures asking him to stop it.

I've been happily surprised before, but I don't think I will today.  

8 1/2 hours.

And then there's TaiChin Preyor.  He's got until Thursday.  A whole day left to contemplate his . . . .

The Texas Court of Criminal Appeals turned him down.  Not because they had to.  Because they could.  Here's the explanation.  

  Preyor Concurring Opinion by jmgamso on Scribd

Which is a long way of saying, 

We don't gotta.

Of course, that's just a fancy way of saying 

We don't wanna.

Which puts 'em in the same camp as all those folks up in Ohio.  Sure, we don't have to kill him.  But we actually want to.  Even though (here it comes again), he didn't do anything personally to us.  It just feels good.

You know, like the old Nike commercials.  

Just do it!

'Cause we can.

Judge Alcala dissented in a 33 page opinion (that Scribd doesn't seem to want to let me embed, so here's a link.

He doesn't disagree with the majority's cold-hearted legal calculus.  It's not that we have to grant him relief, he says.  

It's just that what they have to do isn't the whole thing.  It matters, too, what they ought to do.  It matters that they can grant relief.  And in this case . . . .

The extreme circumstances presented in this application include the essential abandonment by applicant’s initial habeas counsel, and the interloping by a foreign attorney without credentials to practice before this Court and in the absence of applicant’s informed consent to pursue habeas litigation for him as a non-attorney. This Court should stay this impending execution of applicant and file and set this case to consider overruling Graves. Assuming Graves is overruled, I would remand this case to the habeas court so as to permit this applicant, who has made a prima facie case that trial counsel performed ineffectively as to their investigation and presentation of mitigation evidence, a live hearing in the habeas court. Because this Court denies the motion to stay execution and permits this execution of applicant several days from now despite the egregious post-conviction errors in this case, I respectfully dissent.

It is, of course, a dissent.


  
-----------------------

UPDATE -- In case you couldn't tell, I'm an idiot.  It's now a bit past noon, and I just realized that today is Tuesday, not Wednesday.

Ron Phillips is scheduled to be killed tomorrow, not today.  TaiChin Preyor on Thursday, not tomorrow.

So there's more time yet for something to happen.  I'm still not holding my breath.

After three and a half years

January 16, 2014.  Just days over three and a half years ago.  

That's when a crew of select prison guards strapped Dennis McGuire to a table (we don't really use a gurney) at the Southern Ohio Correctional Facility in Lucasville, stuck needles into his arms, and . . .
Alan Johnson, a reporter for the Columbus Dispatch, watched and described what the witnesses saw.

Dennis McGuire struggled, repeatedly gasping loudly for air and making snorting and choking sounds, before succumbing to a new two-drug execution method today. . . .After being injected at 10:29 a.m., about four minutes later McGuire started struggling and gasping loudly for air, making snorting and choking sounds which lasted for at least 10 minutes. His chest heaved and his left fist clinched as deep, snorting sounds emanated from his mouth. However, for the last several minutes before he was pronounced dead, he was still.

The Buckeyes haven't managed to kill anyone (legally, that is) since then.  What with being unable to get the drugs and the litigation and the ever changing protocols, they just haven't been able to.

Meanwhile, we've had people freed from decades in prison - the early parts on death row - for crimes they didn't commit.  We've had more getting relief, albeit not release, because of serious constitutional problems with their trials.  We've had death on the row.  And we've had more people sent to the row.

What we haven't had is any more executions.  

And yet the state survives.  

They're maybe gonna finally pass a law that exempts the truly really absolutely fucking crazy as a motherfucking bedbug guy from execution.  (Or, of course, maybe not.)

But despite execution dates well into 2020 (27 guys have serious dates, though for one or another reason it's a virtual certainty that we won't actually kill all 27 - certainly not as scheduled), we haven't actually executed anyone since McGuire.  

Three and a half years ago.

Still, the state endures.

We've had a judge declare that Ohio's death penalty law was unconstitutional because after a jury recommends death a judge has to make additional findings in order to impose a death sentence..  (That case is now pending in the Ohio Supreme Court.)  We've had another judge overrule a jury's recommendation of death because she could not, on the record before her, make those findings.

We had it announced that death row would be moving from Chillicothe to Toledo.  And we've learned that they've maybe changed their mind about the move, so now it looks like it won't happen - for sure not anytime soon.

And we haven't executed anyone here for three and a half years.

While Ohio keeps going on its way.

Our State Attorney General's son sits on the Ohio Supreme Court.  The Hamilton County Prosecutor has announced that there's no point in a third murder trial for former University of Cincinnati campus cop Ray Tensing who shot and killed Samuel DuBose.  That's unarmed Sam DuBose.  Sam Dubose who wasn't doing anything wrong.  Killed.  Shot to death by a cop.  Twice juries hung.  Tensing won't hang.  Won't go to prison.

Three and a half years.

And still Ohio thrives.  (There's that opiate overdose thing, but hey . . . .)

So three and a half years.  Which pretty much establishes that we can just let it go.  No actual need to kill anyone.  Just give it up.  We'll keep doing just fine.

Except, you know - Are We Having Fun Yet?

Time to get the gears running.  Tune the engines.  Spin the rotors.  Tote that barge. Lift that bail. Get a little drunk and you land in . . . .

Sorry, I got distracted there. 

January 16, 2014.  Just days over three and a half years ago.

And now, it looks like for real, next week.  July 26, 2017.  Ron Phillips.

Same drugs that left McGuire gasping and snorting and choking and struggling.  

Gary Otte in September.  Ray Tibbetts in October.  Alva Campbell, Jr. in November.

And on.

And on.

And on.

After three and a half years.  In which the state's done just fine.  

But you know how the tension builds.  Until we just have to kill again.  

Or maybe not.

There are petitions and motions in the Supreme Court.  But really, the ball's in Governor Kasich's court.  There's still a week.

We the People

September 17, 1787.  Philadelphia.  Delegates to the Constitutional Convention signed their proposed constitution.*

September 17, every year (since 2004).  The United States.  Constitution Day and Citizenship Day.**

September 17, 2020.  Lucasville, Ohio.  John Drummond to be executed.***

Because what better way is there to honor the Constitution than by killing someone?

Drummond was convicted and sentenced to die for the aggravated murder of Jiyen Dent, Jr., a three-month-old child on March 24, 2003.  A drive-by shooting.  Tragic.  And so.

I've several times here quoted Camus:

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 I've noted that Camus was wrong.  There are worse monsters.  But it's not supposed to be a competition.  

John Drummond has been on death row now for some 13 years.  He's had at least two previous execution dates, though his lawyers, at least, knew they weren't real dates.  Whether he knew? Whether he understood?  

This one, though, is real.  In a little over four years a group of prison guards will tie him to a table, stick needles in his arms, and pump some drug into his body that will kill him.  

They'll do it in front of witnesses who will carefully watch the murder.  Some will likely cry.  Others grimace.  Perhaps one will throw up.  A couple will take notes.  Perhaps others will smile.  Maybe a fist bump. Really, there's no telling how folks will react to watching a man be put to death.

There will be, outside the prison in Lucasville, a handful of protestors.  They will hold signs.  They will hold hands.  There will be prayer.  Perhaps song.

Or, of course, maybe not. 

Here in Ohio we haven't actually executed anyone since Dennis McGuire in January 2014.  And although there are we others with dates sooner than Drummond's, it's not clear what will happen to any of them.

For one thing, we don't have the drugs.  And can't seem to find them.  The General Assembly passed a special law so that compounding pharmacies could make the drugs and keep it a secret.  That would encourage them, the legislature said.  Turns out that wasn't so.  For whatever odd reasons, Ohio's druggists - even the ones who manufacture to order - don't want to be in the business of abetting state murder.  Damn!

And then there's the problem that Ohio's death penalty law is unconstitutional.  One common pleas judge said so.  Others are being asked to weigh in on the question.  There's a case in an appellate court now.  Will we kill while waiting for a definitive ruling?  At least one of the men with a serious execution date has asked the Ohio Supreme Court to call a halt until the question is resolved - which makes sense, but who knows.

Because four years is a long time.  And Drummond may yet have issues.  He will have a clemency hearing before the Parole Board.  And then the Governor - whoever that will be - will get to decide whether to stop the killing.

After four more years.

Drummond was 26 when he arrived on death row.  He's 39 now.  They plan to kill him when he's 43.

Whether they do or not, it won't bring Jiyen Dent, Jr. back.  That tragedy will remain no matter what.

Constitution Day and Citizenship Day.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

------------------
* It didn't actually become The Constitution of the United States until it was ratified.
** By law.  Title 36 of the United States Code, Section 106.
***

  Drummond Execution Order

26 and Counting

To what end, exactly?

That's the question Ohio Supreme Court Justice Paul Pfeifer asks today.  Actually, that's my phrasing. What Justice Pfeifer said is. 

The act begs the question: Why?

The "act" was the court's order setting an execution date for James Frazier, sentenced to be killed for the March 2004 murder of Mary Stevenson in Toledo.  It's scheduled, now, for October 17, 2019 (yes, 2019).

The question, whether in my form or as Justice Pfeifer put it in his dissent (joined by Justice O'Neill) from that order, isn't about whether Frazier should be killed.  After all, Pfeifer joined the unanimous opinion affirming Frazier's conviction and death sentence.*

Nor, at least not exactly, is the question about the wisdom of setting execution dates more than three years in the future.  That's the sort of thing the court's been doing for some time.  In fact, as Pfeifer points out, as of yesterday we here in the Buckeye State had 25 executions scheduled.  First up, Ron Phillips on January 12 next year.  (Yep, next year.)  The last Gregory Lott for August 14, 2019.  

Of course, we've something of a backlog, given the moratorium on killings since the botched murder of Dennis McGuire in January 2014.  And unlike some states, we space our killings apart.

But, really, it wasn't the three years plus that left Pfeifer wondering.  It's the drugs.

The state does not have the drugs needed to carry out the executions. 

We don't have 'em.  We can't get 'em.

The last killing, the gruesome execution of Dennis McGuire (gruesome in exactly the way his expert witnesses said it would be and the way the state's witnesses assured Judge Frost it would not) was done with an experimental mix ("experimental" as in nobody'd ever been executed with that combo of drugs before) of midazolam and hydromorphone.  

So OK, we won't use that combo again.  And after much thought, the folks who make these decisions (the folks who run the prison system, not physicians or pharmacologists) decided to go back to the tried and true - thiopental or pentobarbital.  Except, well, there's none to be had.  

Ohio's been begging the FDA and the DEA and the FCC and the IRT and the BMW and anyone else with initials they can think of to allow importation of bootleg drugs from India or the Taliban or something.  Ohio's been failing.

We tried to get a compounding pharmacy to compound.  Nope.  We passed a law making the identity of the compounding pharmacy a secret figuring that the pharmacists were probably good with killing but not with going public.  We were wrong.

Given that no executions are scheduled to take place in 2016, it is likely that there are no suppliers to shield.

One more time.

The state does not have the drugs needed to carry out the executions. 

And so, the question:

To what end, exactly?

Justice Pfeifer's summary:

At this time, the state is incapable of properly executing the 25 people for whom execution dates have previously been set. It serves no rational purpose for this court to continue to set execution dates while significant logistical obstacles remain in place and more legal challenges are likely. 

And yet, the prosecutors keep filing motions to set execution dates.  And the supreme court, for reasons known only to them, grants them from time to time. In desperate hope, perhaps.  

Or perhaps, just perhaps, if the prosecutors didn't ask and the justices didn't sometimes agree, they'd be admitting that out commitment to killing our people is empty.  That we don't really expect to do it, that death row is now no more than a talking point, empty rhetoric, PR.

There are now, adding Frazier to the list, 26 men with scheduled execution dates.  It's likely there will be more as more men finish their run through legal process.

I imagine that we'll eventually execute some of them.  Maybe.  Or maybe it really is just a game at this point.
-------------------
* O'Neill wasn't on the court in 2007 when it ruled in the case.  It seems likely have joined in affirming the conviction but dissented from the death sentence since he believes the death penalty unconstitutional.  (See here.)

Breaking News: Sun Rises in East

The headline in the Columbus Dispatch caught my eye.

Study finds racial, gender bias in Ohio executions

I mean, damn.  I'd figured that Ohio (the state that round at the ends and stoned in the middle) would be better than that.  We are, after all, as our license plates sometimes say, "The Heart of It All" (whatever it might be).

Oh, sure.  I knew that every state where they'd done a competent study found that the likelihood of a death sentence went up significantly if the victim was white.  And even more if the victim was also a woman.  But surely, Ohio.

I had a client scheduled to be executed in February 2007.  Ted Strickland's term as governor began in January, and within a few days of his inauguration, I got a call from his chief legal officer.  He wanted me to know that Governor Ted had given my client a reprieve until April so that he would have time to study the case and decide whether to grant clemency.

Cool, I said.  Thank Ted, I said.  But you know, what he should do, I said, is declare a moratorium on executions for a couple of years and arrange for a full study of the death penalty here.  Here's the press release, I said.

I believe that Ohio's death penalty operates as fairly and perfectly as anything done by humans can. But because death is final, and in an abundance of caution, and to show the world that we are careful, I'm calling a halt to all executions until we've done a full, open, and fair study of just how it works in both theory and practice.
Once that study is complete, I'm confident that we can go forward with no changes at all, knowing that humans cannot improve on what we do here in the Buckeye State.

Is what I said Ted should say.

And Governor Ted's chief laughed.  Yeah, he said.  Not a chance, he said.

And, of course, there was no chance Ted would do that.  For all sorts of reasons.*  One of them, was that Ohio's no different from anywhere else.  I knew it.  His chief legal guy knew it.  He knew it.

What Ohio hadn't had was a real study.  We've had a few now.  By the ABA, by the Death Penalty Task Force put together by the Ohio Supreme Court (in partial response to the ABA study).  

And now

Ohio's 53 executions shown "vast inequities" in racial, gender and geography, a new study concludes.
Research by Frank Baumgartner, a University of North Carolina political science professor, are not a revelation to those familiar with Ohio's death penalty, which resumed in 1999 after a 36-year hiatus. But it does underline a consistent pattern that has been pointed out in state, national and media reports for years.
Baumgartner looked at Ohio's 53 executions between 1999 and 2014, finding "significant and troubling racial, gender, and geographic disparities with regards to who is executed in Ohio." Baumgartner concluded that the victim's race and gender, and the county where the murder occurred, influenced whether or not the killer was executed.**

To which the cognoscenti say

No shit.

--------------
*If you're sufficiently bored, you can trawl through the archives here and find bunches of stuff I've written about Strickland and the death penalty. 

** The Dispatch posted the full study.

NB: Gideon wrote about the study, too.  And pointed out that Connecticut wasn't any better - except that it shut down the death penalty.  At least for the moment.

Five More.

Early in the morning on November 19, 1984, Chevette Denise Brown shot Herbert Rowan in the back of the head.  She did it, she testified at David Sneed's trial in 1986, at his direction.  On July 30 of that year, a few months shy of two years after Rowan's murder, Sneed was sentenced to die.*

He's been languishing on death row ever since.  As the row was moved from Lucasville to Mansfield. As it was moved from Mansfield to Youngstown.  As it was moved from Youngstown to Chillicothe. He's been there.  In a couple of months, it will be 29 years.

Monday morning, the Supreme Court of Ohio, Justice O'Neill dissenting because he believes the death penalty unconstitutional, set an execution date.  August 1, 2018.  a bit over three years from now.  When he'll have been on the row 32 years and 2 days.

They also said that James O'Neal has been hanging around long enough (though nowhere near as long as Sneed).  He was sentenced December 11, 1995.  He's now scheduled to be killed October 10, 2018.

And Elwood Jones, sentenced January 9, 1997.  Set to be killed 22 years to the day after that, January 9, 2019.

And Tim Hoffner and Archie Dixon.**  Co-defendants from Toledo.  Tried separately, both sentenced to die.  Tim on June 1, 1995.  Archie November 22.  They plan to kill Archie March 20, 2019, Tim May 29 that year.  

Do the math.  The Supreme Court of Ohio just ordered Tim Hoffner to be killed 4 years from now. He is, if my math is right, the 23rd person in Ohio with an execution date.  First up is Ron Phillips next January.  And on and on.  23 men.  Over not quite 3 1/2 years.  Beginning in about 7 months.

Will it happen?  Almost surely not to all of them.  At least, not on that schedule.  And of course, maybe to none.

In a few hours, the court is going to hear argument in the case of Romell Broom.  He's the guy they tried mightily to kill a few years ago.  But failed.  The question is whether they get to try again.  We'll have their answer in a few months.  Then, it's safe to assume, the US Supreme Court will be invited to review the Ohio court's decision.    

Broom was sentenced to die on October 16, 1985.  If he's ever executed it likely won't be until sometime in the 2020s.  He was 28 when he was sentenced to be killed.  He turned 59 last week. He'll be over 65, a senior citizen, by the time they kill him.  If they do.

I get tired of saying that while I can recognize injustice, I don't know what justice is.  But I know that whatever it is, it isn't languishing for decades on death row only to be, finally, either killed or resentenced to life.  Or even released.  And it sure as hell isn't being told, as Tim Hoffner just was, that you have exactly 3 years and 355 days before you're to be killed.  By mean yet unknown. Because who the fuck knows how well be killing people, if we still are, in 4 years.

No, there's no justice here.

And yet, you want to do it faster?

Consider Joe D'Ambrosio, who spent 22 years on the row before a court finally determined that the prosecutor's lies and cheats had put a factually innocent guy in prison.  And scheduled him to die.  Great victory for the system that we didn't kill that innocent man.  And Joe, frankly, is a pretty remarkable guy now.

But speed it up?  Joe's dead.  And he's not alone.  

You want to kill them, but you want them to have something that's at least got the appearance of a fair trial?  And you want to give them some opportunity to show that the jury got it wrong?  That they're actually innocent?  Then, sorry, it's gonna take time.  Years.  And then more.

But then, when you finally get around to killing Ishmaa'eel, it turns out that the 25-year-old you sentenced, the 23-year-old guy who told Chevette Denise Brown to shoot Herbert Rowan, is going to be a 57 year old when you kill him.  Not the same person.  Maybe a good guy now.  Maybe not.  But at 57 he ain't who he was at 25.

Or Dzhokar Tsarnaev, who was or wasn't under his brother's influence when he participated in setting bombs at the Boston Marathon.  And who, if he ever actually gets killed by the government, won't be that kid who was sitting in the courtroom during the trial.  He'll be middle-aged.  Or older.  And regardless of who he was that day in Boston, he'll sure be someone different by the time he's killed. If he is.

But see, if the guy we kill isn't the guy we sentenced (same body, different person - years do that to everyone), then what, exactly, are we doing?  And how readily we can see through the fiction that this is anything other than cankered vengeance.  

If we're willing to look.


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*Sneed now goes by Muhammad Khaaleeq Ishmaa'eel, though the Ohio Supreme Court apparently doesn't recognize the change of name.
**Disclosure: I represented Archie in an interlocutory appeal and then on direct appeal after his conviction and death sentence.  

Got Plans for the Next 3 Years? How about Burning Someone at the Stake?

In May, 1984, John David Stumpf shot and killed Mary Jane Stout.  (He shot her husband, Norman, too, but Norman didn't die.)  He's been sitting on death row in Ohio for the last 29 years.

In January 1997, Doug Coley shot and killed Samar El-Okdi. He's been on death row in Ohio since 1998.

In June 2001, Stanley Fitzpatrick killed Shenay Hayes, Doreatha Hayes, and Elton Rose.  He's been on death row in Ohio since 2002.

This morning the Ohio Supremes, Justice O'Neill dissenting because he believes the death penalty unconstitutional, set dates for their executions.  January 3, March 14, and May 30.

Of 2018. 

Yep.  Around three years from now.

They say that justice delayed is justice denied.  I say, regularly in these posts, that I don't know what justice is.  I do, however, sometimes know what it's not.

If it made sense to kill Stumpf and Coley and Fitzpatrick, if it was wise and moral and proper, if it was just frgodssake, maybe years ago.

Stumpf, if they kill him as now scheduled, will have been on death row for somewhere close to 34 years.  There are reasons, of course.  He was one of the early cases.  The Ohio Supremes were still working at getting a handle on how our death penalty law works.  (It keeps changing, and the Supremes keep fiddling with how it works, but in the early days of the law there was a whole lot more uncertainty.)

And every case has issues that need to be resolved.  And good god, Ohio just released three guys who'd each spent 39 years in prison for a killing they didn't commit.  I mean, it's worth taking the time to be sure.

But 34 fucking years?

Well, yeah.  'Cause that's what it takes.  And even then there are issues, and frankly, I'm far from convinced any of these three will get killed as scheduled.

So we have a system that's expensive and disfunctional.  It denies justice.  It's imperfect.  And oh, yeah, it's immoral.

But by god, we've got plans for 2018.

* * * * *

I was just looking in my calendar.  I don't have anything scheduled after a doctor's appointment in September of this year.  

2016?  2017?  Hell, I've got more than two years of nothing before they plan to kill Stumpf.  

Of course, he doesn't have anything scheduled either.  Except for when they do the count every day to make sure none of the guys have escaped.

* * * * *

Meanwhile, at the Supreme Court of the United States, they're working on the really important issue:

When is it constitutional to burn someone at the stake?

The case is Glossip v. Gross and the formal subject is Midazolam and the dangers and incompetence of lethal injection as a method of government sanctioned murder (why don't we just take these guys out with drones?) as demonstrated in Ohio and Oklahoma and Arizona.  But when you're a SUPREME COURT JUSTICE you can ask pretty much anything you want during oral argument.  

Which Elena Kagan did, posing the question to Patrick Wyrick, Solicitor General of Oklahoma who responded:

                   JUSTICE KAGAN:  So suppose that we said, we're going to burn you at the stake, but before we do, we're going to use an anesthetic of completely unknown properties and unknown effects.  Maybe you won't feel it, it, maybe you will.  We just can't tell.  And ­­-- and you think that that would be okay.
                 MR. WYRICK:  I think that that ­­ a Petitioner in that case would have no trouble meeting -- satisfying the burden this Court imposed in Baze, which is showing that that puts me at a substantial risk, objectively intolerable risk of severe pain.  That -- that threshold showing would be incredibly easy to make in that case.
                 JUSTICE KAGAN:   No, I'm -- I'm saying, because you just don't know about the anesthesia.  Maybe the anesthesia will cover all that -- the pain of being burned at the stake or maybe it won't.

When Robin Konrad who represented the guys on the row in Oklahoma stood up for rebuttal, Sam Alito (who's concerned about guerrilla warfare on the death penalty) returned to that all-important constitutional question. 

                          JUSTICE ALITO: But you're not sure that being burned alive ­­ that you think there are circumstances in which burning somebody at the stake 17 would be consistent with the Eighth Amendment?
                         MS. KONRAD: It is ­
                         JUSTICE ALITO: It's an irrelevant point, but you're ­­ you're not certain about that?
                         MS. KONRAD: Well, what I'm saying is that this Court has --­­ the founders say burning at the stake is unconstitutional. It creates an Eighth Amendment violation. It's cruel and unusual. But in your hypothetical, if there was a way to ensure that that was done in a humane way, there could perhaps be. That --­­ I don't think that any ­­ any State would go to try to do that, because we move forward evolving ­­--
                         JUSTICE ALITO: That's an incredible answer. You think that there are circumstances in which burning alive would not be a violation of the Eighth Amendment? Burning somebody alive would not be a violation of the Eighth Amendment?

So there it is.  The Oklahoma Solicitor General, who favors lethal injection, tells Kagan that burning at the stake is always unconstitutional.  The lawyer for the guys on death row tells Alito that, hey, maybe it would be OK.

Really, you can't make this shit up.