January 26, 2011
By Paul E. Pfeifer
Are we, the people of Ohio, well served by our continuing use of the death penalty?
Before we try to answer that, let’s take a quick look back at capital punishment in Ohio. In 1972, the U.S. Supreme Court declared Ohio’s death penalty statute unconstitutional. In 1974, our state legislature revised Ohio’s death penalty law, but the Supreme Court rejected that one as well. Then, in 1981, a new death penalty statute was enacted, and this one passed constitutional review. We didn’t resume executions in Ohio until 1999. Since then, 41 condemned murderers have been put to death; there are 157 more awaiting execution on death row.
There are very few people in this state more closely associated with the death penalty than am I. As a state senator in 1981, I helped draft our current law. Now, for the past 18 years, I have served as a justice on the Ohio Supreme Court, where we render the final judgment on death penalty appeals.
I helped craft the law, and I have helped enforce it. From my rather unique perspective, I have come to the conclusion that we are not well served by our ongoing attachment to capital punishment.
Why the change? In short, because the death penalty law is not being applied as we originally intended.
The statute that we wrote in 1981 was designed to pass constitutional review by the U.S. Supreme Court. That meant that it had to provide safeguards and extensive due process for accused murderers. We set out to enact a law that would give prosecutors the capability to seek capital punishment for the absolute worst offenders.
Murder is a vile crime. But not all murders are the same, and we did not mean for all — or even most — murderers to be eligible for the death penalty. The law was meant to be employed only when a certain set of aggravating circumstances warranted execution. But over the years, the death penalty has come to be applied more pervasively than we ever intended.
We also wanted a review process implemented in which the Ohio Supreme Court, in addition to considering death penalty appeals, would monitor death sentences across the state to verify that they were being evenly and fairly applied. Simply put, that hasn’t happened.
Thirty years ago, the public’s support for the death penalty stemmed largely from decades of sentences that seemed too lenient for murderers. The fact that a convicted killer could be eligible for parole after serving only a fraction of his life sentence did not sit well, and rightly so.
But in 2005, the Ohio legislature corrected that by passing a law that allowed prosecutors to seek a penalty of life without the possibility of parole rather than a death sentence. Since that law passed, we have seen the number of death sentences drop precipitously. Prosecutors and jurors have told us — by their actions — that life without the possibility of parole is a more desirable outcome to a murder trial than a death sentence.
Part of the reason for that, I believe, is that even supporters of capital punishment feel uneasy about sitting on a jury that votes to take a human life. As George Orwell once said, “Most people approve of capital punishment, but most people wouldn’t do the hangman’s job.”
Make no mistake — I am not arguing for leniency or sympathy. There are no good citizens on death row. These are people who have committed heinous crimes. When a villain murders, he not only ends one life, he irrevocably damages dozens of others. Murder has a ripple effect that consumes all those who loved the victim.
But life without parole now offers us a viable alternative to the death penalty, and it’s an option that can satisfy our desire to punish killers for their crimes. There are, however, dozens of inmates on death row who were convicted before that option was available. How many of them would have been sentenced to death if the life-without-parole option had been available at the time? No one knows. All we know is that there are many people who will be put to death because they were convicted at the wrong time.
So, I ask: Do we want our state government — and thus, by extension, all of us — to be in the business of taking lives in what amounts to a death lottery? I can’t imagine that’s something about which most of us feel comfortable. And, thus, I believe the time has come to abolish the death penalty in Ohio.
Pfeifer, of Bucyrus, is senior justice of the Ohio Supreme Court.
Note on Feb 9, 2011.