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January 5, 2007

Ohio's Gov-elect produces capital wondering

In posts following the November elections, I speculated here and here about how Ohio's new governor and attorney general might impact the death penalty in the Buckeye state.  And, as detailed in this AP report, Gov-elect Ted Strickland is already making capital waves:

Strickland said Friday he will not have ample time to review the case of condemned killer Kenneth Biros before the scheduled execution date, signaling the likelihood that the first execution of his administration will be postponed.  "In talking with my legal counsel and with Gov. Bob Taft's legal counsel, they have told me there is no way that we can have time to do the kind of analysis dealing with that that Bob Taft does," Strickland told The Associated Press. "It takes him much longer than that amount of time that I would have."

The statement was met with unified wonder by those for and against the death penalty: Does this mean the new governor is reconsidering the death penalty?  "We've been through this before with Gov. (Richard) Celeste, but he did it when he was leaving office," said John White, immediate past president of the Ohio Prosecuting Attorneys Association. "But to have a new governor doing it on the way into office, it may set the stage for the battleground."...

Jim Tobin, a spokesman for Ohioans to Stop Executions, said governors in other states are increasingly concerned about the fairness of the death penalty and whether lethal injection causes undue pain and suffering. "We commend the governor for wanting to take his time and be very deliberate on the death penalty," he said.

Strickland, who takes office Monday, would have 16 days to review Biros' case if his execution is carried out on its scheduled date of Jan. 23.  Strickland said Taft's reviews have typically taken at least several months.

UPDATE AND REACTION:  Additional local coverage of Strickland's intriguing first foray into Ohio's death penalty administration can be found in the Columbus Dispatch and the Cincinnati Enquirer. 

Considering the nature and timing of Strickland's comments, I view his statements as an effort to assess the status and strength of Ohio death penalty opinions as he enters office.  As the news articles note, the Biros execution has already been stayed by a federal district court and Strickland could have waited until that stay was fully adjudicated before commenting upon the timelines of his clemency review.  But, rather than play this issue close to the vest, Strickland decided to get in front by stressing the importance of avoiding a rush to judgment on death penalty issues.  Perhaps he is hoping to discover ASAP if the public and editorial page writers will praise or assail his emphasis on deliberation.

All this reinforces my sense that capital times will be very, very interesting in Ohio throughout 2007 (although, for the next 3 days, the subject will continue to be eclipse in the Ohio media by a big football game).

January 5, 2007 at 06:28 PM | Permalink

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Tracked on Jan 6, 2007 12:24:52 PM

Comments

I am sure that the family members of Biros' victim are just thrilled that Strickland is going to be so solicitous--on top of the farce coming out of Judge Frost's courtroom. There are a lot more things that a governor should be spending his time on than a months-long review of the sentence of an obviously guilty murderer like Biros. Not to sound completely indifferent to the fate of Biros, but whether he lives or dies is not remotely close to the most important issue facing Gov. Strickland. His time would be far better spent thinking about getting jobs into Ohio.

Perhaps someone on the abolitionist side could explain why executions of the obviously guilty are such a big deal? Other than the moral preening aspect of it, is executing a killer something to get worked up about? If so, then why don't abolitionists get hacked off about innocent citizens being killed by violent offenders who never should have been let out in the first place? I would think it plain that it is far more immoral to foist exceedingly dangerous criminals onto our society than to execute someone like Biros . . . . . yet we never hear how "barbaric" that is.

Obviously, the "innocence" issue is a whole different kettle of fish . . . . but really, honestly, does anyone care if Biros is executed?

Posted by: federalist | Jan 5, 2007 6:44:08 PM

federalist, imagine this. You have two brothers you grew up with. Football, girl problems, school, work, wives, children, nieces, nephews, all the trials and tribulations of life growing up. You love them both despite the inevitable bad times. One brother murders the other in a fit of rage.

A lot of people couldn't forget they were both brothers. People. And a lot of relatives would realize putting the convicted brother to death would not bring back the murdered brother. Though realizing justice must be done, a lot of people could have some compassion for both of them. It doesn't have to be either the victim or the condemned. It is possible to see it as a tragedy for all.

It's not Biros himself, or his life, but it's about something larger than life.

On MSNBC a couple of weeks ago, Investigative Reports did their story on the Spring Creek Prison in Alaska. The inmate who stood out the most was a man who killed his cell mate and bragged about how small the pieces of his skull were. He also laughed about putting a cat in the microwave. Very chilling, but most chilling was how calculating he was and how angry he got. More chilling still was how comfortable he was with the murder of his cell mate when talking about enforcing the death penalty on someone he thought deserved it. He didn't call it that, but he did think was enforcing some law.

Given the two points of view, I prefer the first.

Posted by: George | Jan 6, 2007 2:12:53 AM

Federalist: if the standard is whether anyone cares whether Biros lives or dies; don't you think that is a realm you might not want to visit personally? Tho, I have to say, as soon as I read this blog from Prf. Berman, I thought, "For sure federalist has weighed in on the "hang 'em high" side." Rather than knee jerk, right wing drivel, think about each case individually. If you were really a practicing attorney, IN COURT!!!!!, with human clients [not a lot of paper] you would understand the "human" side of the law. But, then again, someone's gotta be out there justifying Nardelli's obscene corporate pay. So, more power to ya!

Posted by: Bernie Kleinman | Jan 6, 2007 8:55:22 AM

Funny, I ask about why abolitionists get more worked up about executions of obviously guilty men than about policies that foist (and have foisted) dangerous criminals on society only to have such dangerous criminals visit fresh savagery on innocent people and I point out that there are issues facing Ohio that (at least in my opinion) are far more important than Biros' fate, and (a) the questions and implications raised by my post are not dealt with and (b) i get compared to a vicious killer and get insulted for being a transactional lawyer.

Seems to me that the posters have no good responses to what I've written.

Posted by: federalist | Jan 6, 2007 9:40:37 AM

Federalist: when all one reads is the Natl Review and believes that Alberto Gonzalez is the greatest AG since William Mitchell, I am not surprised that you find nothing in the other posts of value. What was it the Queen of Hearts said: Sentence first, trial afterwards.?
I guess that would be your world. Fortunately, federal judges answer to a more rational calling. [You remember judges, the guys in the courtroom? You've probably seen actors play them on "Law and Order"]

Posted by: Bernie Kleinman | Jan 6, 2007 11:47:22 AM

Bernie, my reading list is more varied than National Review, and AGAG is NOT one of my personal faves. In any event, I find it funny that, even after I specifically mention the fact that you cannot seem to respond to my points.

I also find your reference to the Queen curious. Biros' sentence happened AFTER trial and then was subjected to layers of appellate review.

I agree with DB's points re: Strickland. He is gauging opinion. Of course, it seems likely that he will be tossing away political support for no good reason if he is overly solicitous of death row inmates. Moreover, I hardly think that the death sentence of Biros or the vast majority of Ohio DR inmates is the product of a rush to judgment. And I think that a governor has a moral obligation to allow executions to go forward, as the victims' families have some right not to be jerked around.

Biros deserves to die. Frost and Strickland should stand aside.

Posted by: federalist | Jan 6, 2007 12:30:13 PM

Federalist, I wasn't comparing you to a "vicious killer," and wasn't making that comparison to the prosecutor or the sentencing judge. They are merely obeying the law and no disrespect intended.

The point was, no matter how much society tries to distance itself from viscous killing (by making executions humane and painless) there is still the fact the state condemns killing by killing. The intent was to personify that logical contradiction.

The other point, which you ignored, was that it isn't an either/or debate that sounds too much like Bush's "You're either support me, or you're for the terrorists."

Posted by: George | Jan 6, 2007 1:31:29 PM

George,

Given the fact that there are huge differences between executions performed by a democratic government with the consent of selected citizenry and the cruel dispatch with which the prisoner killed his cellmate, I find your protestation to the contrary disingenuous.

I also fail to see how I was supposed to discern your point about the characterization of the debate. As for your statement that this isn't just about Biros, I would point out that issues of justice, squeamishness, moral courage, protection etc. inhere in capital punishment, so yes, your statement is true, but trite. Of course, when the government kills someone, it's larger than just the guy. As for the "logical contradiction", that is yet another trite line served up by moral preeners. The point is that we value human life so much that we feel that certain of us who take it deserve to have their own lives taken. This is not a contradiction--any more than "we take liberty from people to show that liberty is wrong".

It's interesting how, after a bunch of posts, which have taken issue with me cannot meet the thrust of my points about the relative importance of Biros' life and the outrage at capital punishment compared to the lack of outrage over preventable innocent victims.

Contrary to popular belief, and my posts probably, I do have empathy for some death row inmates to be executed. And I do have some respect (not much, mind you) for those who actually come to terms with the enormity of their transgressions and who apologize for their crimes and who accept their punishment as a man.

Posted by: federalist | Jan 6, 2007 1:48:07 PM

Federalist: "accept their punishment as a man". Finally, you agree, executions should be limited to males. Now all we have to do is get you to agree no executions of minors or the retarded or insane. You see, there is hope and redemption even for those who have fallen the furthest. Glad to see you have turned your back on the "Dark Side". May the Force be with you.

Posted by: Bernie Kleinman | Jan 6, 2007 10:59:41 PM

Interesting worldview, Bernie, that support for capital punishment makes one "fallen".

And no, I don't think that executions should be limited to males.

Posted by: federalist | Jan 7, 2007 12:58:45 PM

Sorry, federalist. I really did think you may have seen the light. My mistake.

Posted by: Bernie Kleinman | Jan 7, 2007 2:17:45 PM

OK, just for sh_ts and giggles. Yes, federalist, I care if Biros lives or dies. In my opinion he should live. And you can ask the family of a dead 8 year old in Houston what the difference is between murder and government sponsored murder. The answer is that there isn't one.

Posted by: Anon | Jan 7, 2007 3:52:44 PM

Anon, but why do you care so much? That's my point. You're willing to denigrate the Ohio justice system as "murderers" (a morally loaded term) because it will, hopefully, carry out long overdue justice in this case. Where is the fervor coming from? Is it a desire to show how enlightened you are?

Posted by: federalist | Jan 7, 2007 5:10:57 PM

Federalist: you entirely miss the point here. It is an issue of morality, humanity and social and political maturity. In 1850 you would have been there arguing that slavery was justified, in 1950 you would have been there arguing for a re-affirmation of Plessy v. Ferguson, in 2007 you are likely there seeking a reversal of Roe v. Wade. There are some issues that scream for moral justice and maturity. ONe of these is that the state should never take a human life, no matter how worthless or depraved that life might be. I strongly urge you to read "Atlas Schrugged" by Ayn Rand. The state should always be secondary to the rights of the individual. You so easily give that up. You say you are a lawyer, but you have no sense of the justice. I do feel sorry for you and likely any individual clients you may have.

Posted by: Bernie Kleinman | Jan 7, 2007 7:38:54 PM

The shirts feature a thuggish-looking brute, arms outstretched, lying on a gurney. The caption reads, "Stick it to 'em."

and

Meet Dianne Clements, the soccer mom who has done as much as anyone to ensure that Texas' killing chamber remains the nation's busiest.

Posted by: George | Jan 7, 2007 7:52:43 PM

I care because I care about everyone, including people who do horrible things. Do I care about everyone equally? Of course not. And I believe in punishment for wrongs, and severe punishment for severe wrongs. But I don't believe in this one.

You're so desprate to show yourself and the world that you're a better person than this death row inmate? Prove it. Don't do what he did. Don't kill.

Posted by: Anon | Jan 7, 2007 9:13:46 PM

TO WHOM THIS MAY CONCERN. I AM THE SISTER OF TAMI ENGSTROM, VICTIM OF THE SADISTIC, BARBARIC, COLD-BLOODED KILLER KENNETH BIROS..QUITE FRANKLY I HAVE NOT HAD A MINUTE TO MYSELF TO EVEN LOOK AT THESE BLOGS OR TRY TO KEEP UP WITH THE PUBLICITY ON THE INTERNET. BETWEEN TAKING CARE OF MY ILL MOTHER, TRYING TO WORK FULL TIME, TAKING CARE OF A HOME AND BEING THE GLUE THAT HOLDS THIS FAMILY AND SITUATION TOGETHER..I AM WEARING MYSELF QUITE THIN..NOT EVEN TIME TO TAKE CARE OF MYSELF. TAKING OFF WORK, ATTENDING COURT HEARINGS, MEETINGS, TRAVELING TO COLUMBUS FOR THIS CLEMENCY HEARING, IT IS TAKING AN EMOTIONAL AND FINANCIAL STRAIN ON MY FAMILY AND MYSELF. WHAT I REALLY WANT TO EXPRESS TO THE NATION IS THAT KENNETH BIROS' FATE WAS ALREADY MADE 16 YEARS AGO BY A JUDGE AND JURY OF HIS PEERS. WE SUFFERED THROUGH A 6 WEEK TRIAL. IT WAS THE MOST HORRIFYING TIME OF OUR LIVES AND FOR THE PAST 16 YEARS WE STILL SUFFER EVERY DAY FOR WHAT THIS BEAST DID. HIS SELFISH ACTS HAVE DESTROYED MANY LIVES AND HIS DEVIL'S WORK IS STILL IN ACTION FULL FORCE. WHY SHOULD WE HAVE TO RELIVE THIS WHOLE NIGHTMARE OVER AND OVER AGAIN WHEN HIS FATE WAS ALREADY DECIDED 16 YEARS AGO. THERE IS NO QUESTION OF GUILT IN THIS CASE...THIS CASE IS UNLIKE ALL OTHERS. HE ADMITTED TO WHAT HE DID. TED STRICKLAND ANSWERED A LETTER THAT I WROTE TO HIM ON DECEMBER 11 PROMISING ME HE WOULD DO WHATEVER IT TOOK TO TAKE CARE OF THESE MATTERS. A LETTER, WHICH I THOUGHT WAS PERSONAL TO ME...ONLY TO FIND OUR NEIGHBOR HAD WRITTEN TO HIM AND SHE RECEIVED THE SAME LETTER FROM HIM..IT WAS NOT IN FACT PERSONAL. IT WAS A FORM LETTER THAT JUST HAD A DIFFERENT NAME AND ADDRESS INSERTED ON IT. I DON'T EVEN BELIEVE THAT HE READ MY LETTER. MAYBE HE SHOULD HAVE SAT, OR HAD ONE OF HIS LEGAL REPS SIT IN FOR HIM, ON THE CLEMENCY HEARING THAT JUST TORE OUR HEARTS OUT ONCE AGAIN TO GO THROUGH AND RELIVE HER MURDER. IT IS ONLY TAKING A PAROLE BOARD OF 9 MEMBERS 6 DAYS TO MAKE A RECOMENDATION...WHY SHOULD THERE BE ANY MORE DELAYS???? HE IS A DESPICABLE, BEAST , NOT CLOSE TO HUMAN. HE NEEDS EXECUTED JANUARY 23, 2007 AS SCHEDULED. THERE IS QUESTION OF GUILT IN THIS CASE. PLEASE WRITE LETTERS AND HELP OUR FAMILY AS I AM RUNNING OUT OF STRENGTH..THANK YOU AND GOD BLESS YOU ALL.

Posted by: debra heiss | Jan 8, 2007 12:11:45 AM

Ms. Heiss, you have my deepest sympathy. Please maintain your strength. Your efforts to get justice for your sister are a powerful testament to your and your family's courage.

Posted by: federalist | Jan 8, 2007 12:58:05 AM

Ms. Heiss,

What can anyone say? After just reviewing the news report and realizing how terrible this crime was, how can anyone disagree with you? No one can argue with your pain, and no one can can know how deep it must burn.

The issue is complex. Our Wester civilization and the foundations of our laws, our trials by juries, are also powerful:

Progressively, the suffering that each of the main characters inflicts is weighed more and more heavily against the suffering that each undergoes in carrying out violence. Each character gives justifications for their actions, backed up by presumptions of what the gods may require them to do, but always coming nearer and nearer are the torments threatened by the Furies.

And then I get angered that the state promises you "closure," something it cannot unequivocally deliver and should not promise.

To further complicate the issue, someone who would volunteer to be the executioner for every death penalty and carry all the guilt, someone like that might fake your post, or might ask you to post. That would be political manipulation of our hearts and minds. Passions can run that high.

There is another layer of complexity. What if he got life without parole 16 years ago? Would you have suffered the torture of waiting all these years?

There are no easy solutions, maybe no solutions at all, but no one can blame you for feeling as you do.

Posted by: George | Jan 8, 2007 4:18:14 AM

Federalist: you are shameless beyond belief. Your false expressions of sympathy mean nothing to this poor woman and her family. The issue, if you were truly a lawyer, would be that we are a nation of laws and not men. We have moved from the Hobbesian state that you would proffer as a constant. As "George" makes clear, the state as murderer will not resurrect this life so wrongly snuffed out. The state cares little if anything about the victims, and Fedferalist, if you really were a practicing attorney you would know this. My sympathy goes out to all victims and their families, but it does not justify in the 21st Cent. state sponsored murder.

Posted by: Bernie Kleinman | Jan 8, 2007 9:05:14 AM

Guys, by executing murderers, the state does not become a "murderer". Anymore than legal abortions are murder. You may find state executions and abortion appalling and wrong, but when you fail to acknowledge the fundamental difference between an execution and a murder, you lose all credibility in argument. Moreover, name-calling etc. doesn't really advance the ball either.

What's really funny is that neither Bernie, nor anon, nor George can really answer the basic thrust of my comments, namely, why is capital punishment so bad as to elicit the reactions herein. I think any ethicist would say that capital punishment, if it is a wrong, is far less of a wrong, than releasing a Kenneth Mcduff back into society. Yet, abolitionists NEVER seem to get worked up about that. Why not?

I suspect the answer is that it's sexy to get worked up about the government and society and to use revulsion at capital punishment as a means to show everyone how morally superior you are to the rest of us "barbarians".

Can everyone at least agree that releasing Mcduff was far more morally wrong than executing Biros?

Posted by: federalist | Jan 8, 2007 10:40:50 AM

Federalist: What's really funny is that neither Bernie, nor anon, nor George can really answer the basic thrust of my comments, namely, why is capital punishment so bad as to elicit the reactions herein. I think any ethicist would say that capital punishment, if it is a wrong, is far less of a wrong, than releasing a Kenneth Mcduff back into society. Yet, abolitionists NEVER seem to get worked up about that. Why not?

This was asked and answered.

1. No one is arguing for Biros' release "back into society." McDuff is a straw man.

2. It was not morally wrong to release McDuff because there was no intent, no mens rea. In hindsight, it appears morally wrong, but that doesn't make it so.

3. As already pointed out, the recidivism rate for murder by murderers is about 1%, and it is morally wrong to exterminate the 99% for the sins of the 1%.

This is my objection to the entire "tuff on crime" propaganda. McDuff was the only condemned inmate in the nation ever paroled and then returned to death row for another murder, and yet punitopia commits the fallacy of the part equals the whole and wants to punish everyone they can for what he did. They always want to make the rule out of the exception, not just in murder cases, but across the board.

A short note on how powerful debra heiss' post was. I was intellectually paralyzed after reading it. There was no moral, emotional or rational way to respond. I was not permitted to disagree because of a very real and very powerful empathy, despite knowing some "tuff on crime" advocates use and abuse victims' rights, despite knowing the murder rate in death penalty states is higher, despite knowing some studies found "closure" a false promise. It was only later, after thinking that it could be a bogus post, or a post instigated by politics, that it became possible to justify an attempt at a coherent reply. Given that the jury is already biased in favor of the death penalty, what a powerful weapon this is for the social control side and it is surprising everyone doesn't get the death penalty if the victims' family calls for it. Or maybe they do, I don't know. Or maybe the jury has an opportunity to come out of a similar paralysis during deliberations. Whatever the case, it is plain now why prosecutors favor victims who support the death penalty at the relative exclusion of victims who don't. They have to keep that paralysis gun fully charged.

I wonder now if there is a symbolic connection between Medusa's stone-turning gaze and the Furies. A quick Google reveals Dante making the connection in the Inferno. Is there more?

Posted by: George | Jan 8, 2007 5:06:45 PM

A couple of points:

1) I used McDuff as an example. My original point was that the release of violent offenders back into society and the victims thereof--there are thousands in graveyards and far worse places--should, if one is so concerned about human life, mean that abolitionists would not only favor tough sentencing by would scream bloody murder over lenience toward violent offenders. It's pretty rare to see that. So there must be some reason that abolitionists get so hacked off about the death penalty other than the mere death. As for the government doing it, well, I think it's pretty clearly the case that when numerous violent criminals get turned loose after short sentences, there's death that is attributable to government.

2) As for the statement that releasing McDuff was not immoral, I will simply let it stand.

3) As for the recidivism rate for murderers, once again, I was talking about the morality of releasing violent criminals after short stretches in prison. Think it doesn't happen, then take a gander at the 5 year juvenile sentence given to one of the killers of that unfortunate British gentlemen in Washington DC. Unless that killer is a rare bird, someone is going to pay for that lenience.

4) Robert Massie is another DR inmate, let out to kill again--he was executed a few years ago. Furman of Furman fame molested a girl not too long ago.

As for Bernie, let's just say comparing me to slave-holders is pretty bad--it shows though that you have little to back up your arguments.

Posted by: federalist | Jan 8, 2007 11:05:44 PM

The The Cultural Cognition Project at Yale Law school will likely shed some light on this debate from the policy perspective. For example,

Cultural Cognition and Public Policy
Dan M. Kahan† and Donald Braman†

I. INTRODUCTION

Our concern in this Essay is to explain the epistemic origins of political conflict. Citizens who agree that the proper object of law is to secure society’s material well-being are still likely to disagree — intensely — about what policies will achieve that end as an empirical matter. Does the death penalty deter homicides, or instead inure people to lethal violence? Would stricter gun control make society safer, by reducing the incidence of crime and gun accidents, or less safe, by hampering the ability of individuals to defend themselves from predation? What threatens our welfare more — environmental pollution or the economic consequences of environmental protection laws? What exacts a bigger toll on public health and productivity—the distribution of street drugs or the massive incarceration of petty drug offenders?

Posted by: George | Jan 9, 2007 2:25:04 AM

It would be interesting if Ohio became a much more forgiving state on death penalty issues now that Bob Taft's Republican supporters might have a pang of conscience that someone sentenced to the ultimate punishment might be innocent.

Posted by: Bob Taft heh | Apr 12, 2008 9:22:23 PM

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